Exhibit 10.32b
FIRST AMENDMENT TO
NOTE AND WARRANT PURCHASE
AGREEMENT
This First Amendment to Note and
Warrant Purchase Agreement (this “ First Amendment
”) is made effective as of the Effective Date (as defined
below), and amends that certain Note And Warrant Purchase Agreement
dated February 21, 2008 (the “ Existing Agreement
”) by and among Stereotaxis, Inc., a Delaware corporation
(the “ Company ”), Sanderling Venture Partners
VI Co-Investment Fund, L.P., Sanderling VI Beteiligungs
GmbH & Co KG, Sanderling VI Limited Partnership and Alafi
Capital Company LLC (each, a “ Lender ” and
together, the “ Lenders ”).
RECITALS
WHEREAS , the Lenders and the Company are parties to the
Existing Agreement, pursuant to which the Lenders have extended a
$20 million borrowing facility (the “ Underlying
Facility ”) to the Company, $10 million from each Lender
on a several (but not joint and several) basis;
WHEREAS , the Company and the Lenders have previously
executed a term sheet on November 4, 2008 (the “ Term
Sheet ”) pursuant to which they agreed to amend certain
terms of the Underlying Facility; and
WHEREAS , in connection with the Company entering into
concurrent offerings, the Ramius Registered Direct Offering and the
Lender Registered Direct Offering (each as defined below), on
December 29, 2008, the Company and the Lenders desire to set
forth their concurrent agreement effective December 29, 2008
(the “ Effective Date ”) to amend the Existing
Agreement and otherwise to memorialize certain provisions in the
Term Sheet, all as set forth more specifically in this First
Amendment.
NOW, THEREFORE
, in consideration of the foregoing
recitals and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to
be legally bound, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms . As used
in this First Amendment, the following terms shall have the
meanings set forth below:
1.1.1 “ Closing Bid
Price ” and “ Closing Sale Price ”
means, for any security as of any date, the last closing bid price
and last closing trade price, respectively, for such security on
The NASDAQ Global Market, as reported by Bloomberg, or, if The
NASDAQ Global Market begins to operate on an extended hours basis
and does not designate the closing bid price or the closing trade
price, as the case may be, then the last bid price or the last
trade price, respectively, of such security prior to 4:00:00 p.m.,
New York time, as reported by Bloomberg, or, if The NASDAQ Global
Market is not the principal securities exchange or trading market
for such security, the last closing bid price or last trade price,
respectively, of such security on the principal securities exchange
or trading market where such security is
listed or traded as reported by
Bloomberg, or if the foregoing do not apply, the last closing bid
price or last trade price, respectively, of such security in the
over-the-counter market on the electronic bulletin board for such
security as reported by Bloomberg, or, if no closing bid price or
last trade price, respectively, is reported for such security by
Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported in
the “pink sheets” by Pink Sheets LLC (formerly the
National Quotation Bureau, Inc.). If the Closing Bid Price or the
Closing Sale Price cannot be calculated for a security on a
particular date on any of the foregoing bases, the Closing Bid
Price or the Closing Sale Price, as the case may be, of such
security on such date shall be the fair market value as mutually
determined by the Company and the Holder. All such determinations
to be appropriately adjusted for any stock dividend, stock split,
stock combination or other similar transaction during the
applicable calculation period.
1.1.2 “ Extension
Notice ” has the meaning ascribed to it in
Section 2.1 below.
1.1.3 “
Extension Exercise Price ” means the average of the
daily Closing Sale Prices of a share of the Common Stock for the
five (5) consecutive Trading Days commencing on the fifth
(5 th ) Trading Day and ending on
the first (1 st ) Trading Day immediately
prior to the date on which the Company delivers an Extension Notice
exercising an extension of either (1) the Commitment Period
under Section 1.2 or (2) the Maturity Date under
Section 1.4, provided that the Exercise Price shall not
be lower than the Closing Bid Price on the Trading Day immediately
prior to the date of any such Extension Notice, or any other date
that may be required under the rules of The NASDAQ Global Market so
that approval of the Company’s stockholders is not required
by such rules.
1.1.4 “ Lender Registered
Direct Offering ” shall mean that certain registered
direct offering the Company’s Common Stock and warrants to
purchase Common Stock, pursuant to that certain Securities Purchase
Agreement dated December 29, 2008 among the Company and the
Lenders.
1.1.5 “ Qualified
Financing ” (in lieu of and replacing the definition
previously set forth in Section 1.2 of the Existing Agreement)
shall mean additional financing from any third party (other than
indebtedness of the Company to banks, commercial finance lenders
and similar financial institutions) in the aggregate amount of not
less than Twenty Million Dollars ($20,000,000), but excluding any
proceeds received from the Ramius Registered Direct
Offering.
1.1.6 “ Ramius Registered
Direct Offering ” shall mean that certain registered
direct offering the Company’s Common Stock and warrants to
purchase Common Stock, pursuant to that certain Securities Purchase
Agreement dated December 29, 2008 among the Company and RCG
PB, Ltd. And Ramius Enterprise Master Fund Ltd.
1.1.7 “ Trading Day
” shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading
is open for business.
1.2 Undefined Terms . Terms
and definitions used in this First Amendment but not defined in
this Section 1 shall have the same meanings given to such
terms in the Existing Agreement.
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ARTICLE 2
CERTAIN
AMENDMENTS
2.1 Extension to March 31,
2010 . Notwithstanding anything to the contrary in the Existing
Agreement, the Company may, by written notification in
substantially the form attached here as Exhibit A (an
“ Extension Notice ”) to the Lenders delivered
any time prior to or on March 15, 2009, elect to extend either
(1) the Commitment Period under Section 1.2 or
(2) the Maturity Date under Section 1.4 to March 31,
2010. Each reference to “May 11, 2009” set forth in
Sections 1.2 and 1.4 of the Existing Agreement and in the Form of
Note attached as Exhibit A thereto is hereby replaced with
“March 31, 2010”.
2.2 Reduction in Committed
Funds . In consideration of the Lenders entering into the
Lender Registered Direct Offering, the Schedule of Committed Funds
shall be amended by replacing the amounts set forth therein for
each Lender as “Committed Funds” as follows:
