Exhibit 4.2

 

TELADOC, INC.

FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

This First Amendment to the Fifth Amended and Restated Investors’ Rights Agreement (this “Amendment”) is made as of February 9, 2015, by and among Teladoc, Inc. a Delaware corporation (the “Company”) and each of the undersigned Investors.

 

RECITALS

 

WHEREAS, each of the undersigned (other than the Company) is an “Investor” and a “Holder” as those terms are defined in that certain Fifth Amended and Restated Investors’ Rights Agreement (the “IRA”) dated as of September 10, 2014;

 

WHEREAS, the undersigned Investors collectively hold a majority of the Company’s outstanding Preferred Stock, and therefore constitute a “Requisite Approval” under the IRA;

 

WHEREAS, it is desirable and in the best interests of the Company, the Investors and the Current Holders to amend the IRA in accordance with Section 13(f) thereof to increase the number of Mutual Designees on the Company’s Board of Directors and allow for the election of Michael Goldstein to the Board of Directors of the Company as a Mutual Designee (as such term is defined in the IRA).

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises contained herein, the parties hereto agree as follows:

 

1.              Section 7(a)(vii) of the IRA shall be amended and restated in its entirety as follows:

 

“(vii)                     The three (3) Mutual Designees (as defined below).”

 

2.              Section 7(b)(v) of the IRA shall be amended and restated in its entirety as follows:

 

“(v)                           The one (1) “First Issued Preferred Designee” shall be designated by New Capital for so long as (i) New Capital holds a number of shares of First Issued Preferred Stock (or Common Stock issued on conversion thereof) equal to at least 40% of the number of shares of First Issued Preferred Stock held by New Capital as of the date of the Prior Rights Agreement (as adjusted for any stock combination, stock split, stock dividend, recapitalization or other similar transaction), and (ii) such First Issued Preferred Designee is the New Capital Director.  If, for any reason, New Capital no longer holds such number of shares or the First Issued Preferred Designee is no longer the New Capital Director (i) all remaining holders of First Issued Preferred Stock shall immediately vote to remove the current First Issued Preferred Director pursuant to Section 7(d) below, (ii) the First Issued Preferred Director seat shall remain vacant and be eliminated pursuant to the Company’s Certificate of Incorporation, and (iii) if requested by a

 











 

majority of the Preferred Directors, all holders of Preferred Stock shall vote all of their shares so as to remove such director, eliminate such seat on the Board of Directors and reduce the number of Board of Directors to nine (9).”

 

3.              Section 7(b)(vii) of the IRA shall be amended and restated in its entirety as follows:

 

“(vii)                     The three (3) “Mutual Designees,” all of whom will be industry experts, shall be designated as by a majority in number of the other members of the Board of Directors.”

 

4.              Section 7(c) of the IRA shall be amended and restated in its entirety as follows:

 

“(c)                            Current Designees.  For the purpose of this Agreement, the current directors of the Company shall be deemed to be the following Designees:  (i) Tom Mawhinney shall be deemed to be the Series F Designee; (ii) Dana G. Mead, Jr. shall be deemed to be the Series D Designee; (iii) Marty Felsenthal, and Tom McKinley shall be deemed to be the Series C Designees, (iv) Arneek Multani shall be deemed to be the Series B Designee, (v) James Outland shall be deemed to be the First Issued Preferred Designee, (vi) Jason Gorevic shall be deemed to be the CEO Designee and (vii) David B. Snow, Jr., Senator William Frist, M.D. and Michael Goldstein shall be deemed to be the Mutual Designees.”

 

5.              The third paragraph of Section 7(d)(ii) of the IRA shall be amended and restated in its entirety as follows:

 

“During the term of this Agreement, each Holder agrees to vote all Shares to maintain the authorized number of members of the Board of Directors at ten (10) directors (or nine (9) if the size of the Board of Directors is reduced pursuant to Section 7(b)(v)), or such other number designated in accordance with the provisions of the Certificate of Incorporation.”

 

6.              Capitalized terms used but not defined herein shall have the respective meanings set forth in the IRA.

 

7.              Except as expressly amended hereby, the IRA shall remain in full force and effect.

 

8.              This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

 

9.              This Amendment shall be governed by and construed under the laws of the State of Delaware (without regard to its conflicts of laws principles).

 

[SIGNATURE PAGES FOLLOW]

 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or caused this Amendment to be executed by their respective representatives thereunto duly authorized, as of the date first above written.

 

 

	
 
    	
COMPANY:
    
	
 
    	
 
    
	
 
    	
TELADOC, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jason Gorevic
    
	
 
    	
 
    	
Jason   Gorevic
    
	
 
    	
 
    	
Its   Chief Executive Officer
    
	
 
    	
 
    
	
 
    	
Teladoc, Inc.
    
	
 
    	
One   Sound Shore Drive, Suite 300
    
	
 
    	
Greenwich,   CT 06830
    
	
 
    	
Attn:   Jason Gorevic
    
	
 
    	
Facsimile:   (203) 769-1544
    


 











 

	
 
    	
INVESTORS:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
JAFCO TECHNOLOGY PARTNERS II, L.P.
    
	
 
    	
 
    
	
 
    	
By:   JTP MANAGEMENT ASSOCIATES II,
    
	
 
    	
LLC
    
	
 
    	
Its:     General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Thomas M. Mawhinney
    
	
 
    	
Name:   Thomas M. Mawhinney
    
	
 
    	
Title:   Managing Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
JAFCO TECHNOLOGY PARTNERS IV, L.P.
    
	
 
    	
 
    
	
 
    	
By:   JTP MANAGEMENT ASSOCIATES IV,
    
	
 
    	
LLC
    
	
 
    	
Its:     General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Thomas M. Mawhinney
    
	
 
    	
Name:   Thomas M. Mawhinney
    
	
 
    	
Title:   Managing Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
JAFCO TECHNOLOGY PARTNERS V, L.P.
    
	
 
    	
 
    
	
 
    	
By:   JTP MANAGEMENT ASSOCIATES V,
    
	
 
    	
LLC
    
	
 
    	
Its:     General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Thomas M. Mawhinney
    
	
 
    	
Name:   Thomas M. Mawhinney
    
	
 
    	
Title:   Managing Director
    


 











 

	
 
    	
INVESTORS (CONT’D)
    
	
 
    	
 
    
	
 
    	
RICHARD KING MELLON FOUNDATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:   Douglas L. Sisson
    
	
 
    	
Title:   Vice President and Treasurer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
MELLON FAMILY INVESTMENT COMPANY V
    
	
 
    	
 
    
	
 
    	
By:   MFIC V, LLC
    
	
 
    	
Its:     General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:   Lawrence S. Busch
    
	
 
    	
Title:   Member
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
                                  ,   as trustee for the
    
	
 
    	
HERBERT S. MADAN REVOCABLE TRUST 4/23/97
    


 











 

	
 
    	
INVESTORS (CONT’D)
    
	
 
    	
 
    
	
 
    	
GREENSPRING GLOBAL PARTNERS VI-A, L.P.
    
	
 
    	
 
    
	
 
    	
By:   GREENSPRING   GENERAL PARTNER VI, L.P.
    
	
 
    	
Its General Partner
    
	
 
    	
 
    
	
 
    	
By: GREENSPRING GP VI, LLC
    
	
 
    	
Its General Partner
    
	
 
    	
 
    
	
 
    	
By: GREENSPRING ASSOCIATES, INC
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Eric Thompson
    
	
 
    	
 
    	
Name: Eric Thompson
    
	
 
    	
 
    	
Title: Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
GREENSPRING GLOBAL PARTNERS VI-C, L.P.
    
	
 
    	
 
    
	
 
    	
By:   GREENSPRING   GENERAL PARTNER VI, L.P.
    
	
 
    	
Its General Partner
    
	
 
    	
 
    
	
 
    	
By: GREENSPRING GP VI, LLC
    
	
 
    	
Its General Partner
    
	
 
    	
 
    
	
 
    	
By: GREENSPRING ASSOCIATES, INC
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Eric Thompson
    
	
 
    	
 
    	
Name: Eric Thompson
    
	
 
    	
 
    	
Title: Chief Financial Officer
    


 











 

	
 
    	
INVESTORS (CONT’D)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FLAG VENTURE PARTNERS IX, L.P.
    
	
 
    	
 
    
	
 
    	
By: FLAG Private Equity Company IX, L.P., its   general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Louis Sciarretta
    
	
 
    	
Name:
    	
Louis   Sciarretta
    
	
 
    	
Title:
    	
Member   of Limited Partner’s ultimate general partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FLAG VENTURE PRIVATE EQUITY V, L.P.
    
	
 
    	
 
    
	
 
    	
By: FLAG Private Equity Company V, LLC, its   general partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Louis Sciarretta
    
	
 
    	
Name:
    	
Louis   Sciarretta
    
	
 
    	
Title:
    	
Member   of Limited Partner’s ultimate general partner
    


 











 

	
 
    	
INVESTORS (CONT’D)
    
	
 
    	
 
    
	
 
    	
KPCB   HOLDINGS, INC., as nominee
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Dana G. Mead Jr.
    
	
 
    	
Name:
    	
Dana   G. Mead, Jr.
    
	
 
    	
Title:
    	
Strategic   Advisor
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address:
    
	
 
    	
c/o   Kleiner Perkins Caufield & Byers
    
	
 
    	
2750   Sand Hill Road
    
	
 
    	
Menlo   Park, CA 94025
    
				


 











 

	
 
    	
INVESTORS (CONT’D)
    
	
 
    	
 
    
	
 
    	
HLM   Venture Partners II, L.P.
    
	
 
    	
By:   HLM Venture Associates II, LLC
    
	
 
    	
Its:   General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Martin Robert Felsenthal
    
	
 
    	
 
    	
Name:   Martin Robert Felsenthal
    
	
 
    	
 
    	
Authorized   Member
    


 











 

	
 
    	
INVESTORS   (CONT’D):
    
	
 
    	
 
    
	
 
    	
CHP   III, L.P.
    
	
 
    	
 
    
	
 
    	
By:   CHP III Management, LLC,
    
	
 
    	
its   General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:   John J. Park
    
	
 
    	
 
    	
Title:   Managing Member
    


 











 

	
 
    	
INVESTORS   (CONT’D)
    
	
 
    	
 
    
	
 
    	
QUESTMARK PARTNERS IV, L.P.
    
	
 
    	
 
    
	
 
    	
By: QUESTMARK ADVISERS, IV LLC
    
	
 
    	
its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Timothy L. Krongard
    
	
 
    	
Name:
    	
Timothy L. Krongard
    
	
 
    	
Title:
    	
Member
    


 











 

	
 
    	
INVESTORS   (CONT’D):
    
	
 
    	
 
    
	
 
    	
TRIDENT   CAPITAL FUND-VI, L.P.
    
	
 
    	
TRIDENT   CAPITAL FUND-VI
    
	
 
    	
PRINCIPALS FUND, L.L.C.
    
	
 
    	
 
    
	
 
    	
Executed   on behalf of the foregoing entities by the undersigned, as an authorized   signatory of each such entity and/or its general partner or managing member:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Arneek Multani
    
	
 
    	
Name:   Arneek Multani
    
	
 
    	
Title:   Managing Director
    
	
 
    	
 
    
	
 
    	
NEW   CAPITAL PARTNERS PRIVATE
    
	
 
    	
EQUITY FUND, L.P.
    
	
 
    	
 
    
	
 
    	
By:
    	
New   Capital Partners, LLC
    
	
 
    	
 
    	
Its   General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   James K. Outland
    
	
 
    	
 
    	
James   K. Outland
    
	
 
    	
 
    	
Managing   Member
    
	
 
    	
 
    
	
 
    	
WAVELAND   NCP TEXAS VENTURES, LP
    
	
 
    	
 
    
	
 
    	
By:
    	
Waveland   NCP Ventures, Inc.
    
	
 
    	
 
    	
Its   General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Paul R. Deslongchamps
    
	
 
    	
 
    	
Paul   R. Deslongchamps
    
	
 
    	
 
    	
Its   Vice President and Secretary
    
	
 
    	
 
    
	
 
    	
COMMONS   CAPITAL, LP
    
	
 
    	
 
    
	
 
    	
By:
    	
Commons   Capital Management, LLC
    
	
 
    	
 
    	
Its   General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
William   C. Osborn
    
	
 
    	
 
    	
Its   Managing Member