EX-10.1






Exhibit 10.1



AMENDMENT TO

MEMBERSHIP INTEREST PURCHASE AGREEMENT




This Amendment to Membership Interest Purchase Agreement (this “Amendment”) is entered into in
Raleigh, North Carolina, U.S.A., on December 30, 2016, by and among:



TransEnterix, Inc., a U.S., Delaware corporation having its registered office at 635 Davis
Drive, Suite 300, Morrisville, North Carolina, represented by Mr. Joseph Slattery, duly authorized
to execute this Amendment by virtue of a resolution of the board of directors adopted on December
27, 2016, a copy of which is attached as Exhibit A (“Parent”), on behalf of itself and its
wholly owned subsidiaries, including TransEnterix Italia S.r.l.,



and




TransEnterix International, Inc., a U.S., Delaware corporation having its registered office at
635 Davis Drive, Suite 300, Morrisville, North Carolina, represented by Mr. Joseph Slattery, duly
authorized to execute this Amendment by virtue of a resolution of the board of directors adopted on
September 16, 2015, a copy of which is attached hereto as Exhibit A (“Buyer”),



and




SOFAR, S.p.A., an Italian societa’ per azioni having its registered office in Milan, Italy, at
Via Firenze 40, 20060 Trezzano Rosa, tax code 03428610152, registered at no. MI-852745 of the
enterprises’ register of Milan, registered by Mr. Andrea Biffi, duly authorized to execute this
Amendment by virtue of a resolution of the board of directors adopted on December 28, 2016, a copy
of which is attached hereto as Exhibit B (the “Seller”).



The Parent, Buyer and Seller are each individually referred to as a “Party” and collectively
the “Parties” to this Amendment. Unless otherwise defined in this Amendment, the capitalized terms
used herein without definition have the meanings set forth in the Agreement.



RECITALS




WHEREAS, the Parties are three of the parties to that certain Membership Interest Purchase
Agreement, dated September 18, 2015 (the “Agreement”), pursuant to which Seller sold to Buyer the
business operations consisting of development of an advanced robotic system for minimally invasive
laparoscopic surgery known then as TELELAP ALF-X and now known as the Senhance System, including
all related assets, employees and contracts;



WHEREAS, under the Agreement, the cash portion of the Purchase Price is payable in four
tranches with Tranche 2 for Ten Million Euro (€10.000.000) payable (a) the earlier of receipt of
approval or clearance, as applicable, from the U.S. Food and Drug Administration for the TELELAP
ALF-X or after December 31, 2016, and (b) if either (i) Parent has US $50,000,000 in cash on its
balance sheet or (ii) Parent has raised at least US $50,000,000 in financing transactions occurring
after the Closing Date;



WHEREAS, while Tranche 2 may become payable by its terms during 2017, the Parties desire to
amend the Agreement to restructure the terms for the payment of Tranche 2; and



WHEREAS, the Parties intend to enter into this Amendment to effectuate the restructuring of
the Tranche 2 terms.



AGREEMENT




NOW, THEREFORE, in consideration of the premises and mutual promises herein made, and in
consideration of the representations, warranties and covenants herein contained, Parent and Seller
hereby agree as follows:



ARTICLE 1

AMENDMENT TO TRANCHE 2




1.1 Restructuring of Tranche 2. Section 2.1(d)(ii) of the Agreement is hereby deleted and
replaced with the following:



“(d)(ii) The second tranche of the Cash Consideration (the “Second Tranche”) shall
be in the amount of Ten Million Euro (€10.000.000), and shall be paid as follows:



(A) shares of Parent’s Common Stock with a fair market value of Five Million Euro (€
5.000.000), calculated based on the average of the closing prices of Parent’s Common
Stock on ten consecutive trading days ending one day before the execution of this
Amendment (the “Shares”), issued as soon as practical after execution of this
Amendment; and



(B) Five Million Euro (€ 5.000.000) in cash upon the occurrence of any one of the
following events: (1) receipt of approval or clearance, as applicable, from the U.S.
Food and Drug Administration for the Senhance System or (2) Parent having
cash on hand (which shall mean cash and cash equivalents, as defined by US GAAP), at
any time of at least Fifty Million Dollars (US $50,000,000), or (3)
successful completion of a new financing or financings by Buyer and/or Parent and
its Subsidiaries and its Persons – on a consolidated basis — raising at least Fifty
Million Dollars (US $50,000,000) in gross proceeds to Buyer or Parent and commenced
after the Closing Date, exclusive of any financing proceeds related to the December
2016 purchase agreement between Parent and Lincoln Park Capital Fund, LLC. The Five
Million Euro (€ 5.000.000) payment provided in this Section 2.1(d)(ii)(B) will begin
to accrue simple interest at a rate of 9% per annum beginning on December 31, 2016
and continue to accrue interest until paid in full; and will be due immediately upon
the completion of one of the three events identified above, except that Parent may,
in its sole discretion, defer payment until December 31, 2017 in the event that any
of the three events occurs before December 31, 2017;”.



1.2 Registration of the Shares. Parent shall issue the Shares pursuant to a prospectus
supplement issued under its effective Registration Statement on Form S-3, SEC File No. 333-199998,
initially filed on November 7, 2014, and the Post-Effective Amendment thereto on March 8, 2016 and
declared effective by the SEC on June 22, 2016 (the “Registration Statement”).



ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF SELLER




In connection with the issuance and sale of the Shares, Seller represents and warrants as
follows:



2.1 Organization and Authority. The Seller has full power, authority and legal capacity to
execute and deliver this Amendment and to perform its obligations thereunder. This Amendment
constitutes the valid and legally binding obligation of Seller, enforceable against Seller in
accordance with the terms of this Amendment. The execution, delivery and performance of this
Amendment have been duly authorized by the board of directors of Seller. Upon the execution and
delivery by Seller of this Amendment, this Amendment will constitute the valid and legally binding
obligation of Seller, enforceable against Seller in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or similar laws of general application affecting the rights
and remedies of creditors, and to general equity principles.



2.2 No Conflicts. Neither the execution and delivery of this Amendment nor the performance of
the transactions contemplated hereby will, directly or indirectly, with or without notice or lapse
of time: (a) violate any Law to which Seller is subject; (b) violate, conflict with, result in a
breach of, constitute a default under, result in the acceleration of or give any Person the right
to accelerate the maturity or performance of, or to cancel, terminate, modify or exercise any
remedy under, any Contract to which Seller is a party or by which Seller is bound; or (d) result in
the imposition of any Encumbrance on any of Seller’s Interests. The Seller need not notify, make
any filing with, or obtain any Consent of, any Person in order to perform the transactions
contemplated hereby.



2.3 Litigation. There is no Proceeding pending or, to Seller’s Knowledge, threatened against
Seller relating to or affecting the transactions contemplated hereby.



2.4 No Brokers’ Fees. The Seller has no Liability for any fee, commission or payment to any
broker, finder or agent with respect to the transactions contemplated hereby for which Parent could
be liable.



2.5 Securities Law.



(a) The Seller acknowledges: (i) Seller has been furnished via the SEC’s EDGAR system with a
copy of Parent’s Form 10-K for the year ended December 31, 2015 filed with the SEC on March 3,
2016, and all quarterly and current reports or documents required to be filed thereafter with the
SEC pursuant to the Exchange Act (the “SEC Filings”); (ii) Seller has been provided with all other
reasonably requested material information regarding Parent and its Subsidiaries; and (iii) Seller
has been afforded an opportunity to ask questions of, and receive answers from, management of
Parent in connection with the Shares. The Seller has not been furnished with any oral or written
representation in connection with the purchase of the Shares by or on behalf of Parent or any
Subsidiary that Seller has relied on that is not contained in this Amendment.



(b) The Seller: (i) is an “accredited investor” as defined in Rule 501 of Regulation D under
the Securities Act; (ii) is not a “U.S. Person” within the meaning of Rule 902 of Regulation S
promulgated under the Securities Act; (iii) has obtained, in its judgment, sufficient information
to evaluate the merits and risks of the purchase of the Shares; (iv) has sufficient knowledge and
experience in financial and business matters to evaluate the merits and risks associated with such
purchase of the Shares and to make an informed investment decision with respect thereto; and (v)
has consulted with its own advisors with respect to the purchase of the Shares.



(c) The Shares are being acquired for Seller’s own account for investment and not for the
benefit or account of any other Person and not with a view to, or in connection with, any resale or
distribution thereof. In particular, Seller has no intention to distribute directly or indirectly,
any of the Shares in the United States or to U.S. Persons, except pursuant to an effective
registration statement under the Securities Act and in accordance with applicable state and
provincial securities Laws.



(d) The Seller will not acquire the Shares as a result of, and will not engage, in any way, in
any “directed selling efforts” (as defined in Regulation S) in the United States with respect to
the Shares which would include any activities undertaken for the purpose of, or that could
reasonably be expected to have the effect of, conditioning the market in the United States for the
resale of any of any of the Shares; provided, however, that Seller may sell or otherwise dispose of
the Shares Consideration pursuant to registration thereof under the Securities Act and any
applicable state and provincial securities laws or under an exemption from such registration
requirements.



(e) The Seller meets any additional suitability standards and/or financial requirements which
may be required in the jurisdiction in which Seller is organized. In addition to resale
restrictions imposed under US securities Laws, there may be additional restrictions on Seller’s
ability to resell any of the Shares under the laws governing the resale of securities in the
country in which Seller is organized and in which the Shares are sold. The Seller agrees to
strictly abide with such laws.



(f) The Seller understands and agrees that all offers and sales of the Shares shall be made
only in compliance with the registration provisions of the Securities Act or an exemption therefrom
and in each case only in accordance with applicable state and provincial securities Laws.



2.6 Exclusivity of Representations. The representations and warranties made by Seller in this
Article 2 are the exclusive representations and warranties made by Seller. The Seller hereby
disclaims any other express or implied representations or warranties. Each of Parent and Buyer
acknowledges that it is not relying on any representations and warranties made by Seller other than
those representations and warranties set forth in this Article 2.



ARTICLE 3

REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY




Parent, on behalf of itself and its Subsidiaries, including Buyer, hereby represents and
warrants to Seller as follows;



3.1 Organization and Authority. Each of Parent and Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation. Each
of Parent and Buyer has full corporate power and authority to execute and deliver this Amendment
and to perform its obligations thereunder. The execution and delivery by each of Parent and Buyer
of this Amendment, and their respective performance hereunder, have been duly approved by all
requisite corporate action of Parent and Buyer. This Amendment constitutes the valid and legally
binding obligation of each of Parent and Buyer, enforceable against Parent and Buyer in accordance
with its terms. Upon the execution and delivery by Parent and Buyer of this Amendment, it will
constitute the valid and legally binding obligation of Parent and Buyer, enforceable against each
of Parent and Buyer in accordance with its terms.



3.2 No Conflicts. Neither the execution and delivery of this Amendment nor the performance
of the transactions contemplated hereby will, with or without notice or lapse of time: (a) violate
any Law to which Parent or any of its Subsidiaries are subject; (b) violate any Organizational
Document of Parent; or (c) violate, conflict with, result in a material breach of, constitute a
material default under, result in the acceleration of or give any Person the right to accelerate
the maturity or performance of, or to cancel, terminate, modify or exercise any remedy under, any
Contract to which Parent is a party or by which Parent is bound or the performance of which is
guaranteed by Parent.



3.3 Capitalization. As of the date hereof, the authorized capital stock of Parent is set
forth in the SEC Filings. Except as disclosed in the Registration Statement, the SEC Filings or
described to Seller, (a) no shares of Parent’s capital stock are subject to preemptive rights or
any other similar rights or any liens or encumbrances suffered or permitted by Parent, (b) there
are no outstanding debt securities, (c) there are no outstanding options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever relating to, or securities or
rights convertible into, any shares of capital stock of Parent or any of its Subsidiaries, or
contracts, commitments, understandings or arrangements by which Parent or any of its Subsidiaries
is or may become bound to issue additional shares of capital stock of Parent or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any shares of capital
stock of Parent or any of its Subsidiaries, (d) there are no agreements or arrangements under which
Parent or any of its Subsidiaries is obligated to register the sale of any of their securities
under the Securities Act, (e) there are no outstanding securities or instruments of Parent or any
of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which Parent or any of its Subsidiaries is or may
become bound to redeem a security of Parent or any of its Subsidiaries, (f) there are no securities
or instruments containing anti-dilution or similar provisions that will be triggered by the
issuance of the Shares as described in this Amendment and (g) Parent does not have any stock
appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. True
and correct copies of Parent’s Certificate of Incorporation, as amended and as in effect on the
date hereof (the “Certificate of Incorporation”), and Parent’s Bylaws, as amended and as in
effect on the date hereof (the “Bylaws”), and summaries of the terms of all securities
convertible into or exercisable for Common Stock, if any, and copies of any documents containing
the material rights of the holders thereof in respect thereto are part of the SEC Filings.



3.4 Issuance of the Shares. Upon issuance and payment thereof in accordance with the terms
and conditions of this Amendment, the Shares shall be validly issued, fully paid and non-assessable
and free from all taxes, liens, charges, restrictions, rights of first refusal and preemptive
rights with respect to the issue thereof, with the holders being entitled to all rights accorded to
a holder of Common Stock. The Shares have been duly authorized and reserved for issuance upon
purchase under this Amendment. The issuance of the Shares has been registered under the Securities
Act by Parent pursuant to the Registration Statement. Upon receipt of the Shares, Seller will have
good and marketable title to such Shares.



3.5 SEC Filings; Financial Statements. Parent has filed all reports, schedules, forms,
statements and other documents required to be filed by Parent under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve months preceding
the date hereof on a timely basis or has received a valid extension of such time of filing and has
filed any such SEC Filings prior to the expiration of any such extension.  As of their respective
dates and to Parent’s knowledge, the SEC Filings complied in all material respects with the
requirements of the Securities Act and the Exchange Act, as applicable. None of the SEC Filings,
when filed, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The financial statements of Parent
included in the SEC Filings comply in all material respects with applicable accounting requirements
and the rules and regulations of the SEC with respect thereto as in effect at the time of
filing.  Such financial statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except
that unaudited financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of Parent and its consolidated Subsidiaries
as of and for the dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit
adjustments. Except as publicly available through the SEC’s Electronic Data Gathering, Analysis,
and Retrieval system (EDGAR) or in connection with a confidential treatment request submitted to
the SEC, Parent has received no notices or correspondence from the SEC for the one year preceding
the date hereof other than SEC comment letters relating to Parent’s filings under the Exchange Act
and the Securities Act. There are no “open” SEC comments. To Parent’s Knowledge, the SEC has not
commenced any enforcement proceedings against Parent or any of its Subsidiaries.



3.6 Absence of Certain Changes. Since December 31, 2015, except as disclosed in the
Registration Statement or the SEC Filings, there has been no material adverse change in the
business, properties, operations, financial condition or results of operations of Parent or its
Subsidiaries. Parent has not taken any steps, and does not currently expect to take any steps, to
seek protection pursuant to any Bankruptcy Law nor does Parent or any of its Subsidiaries have any
knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or
insolvency proceedings. Parent is financially solvent and is generally able to pay its debts as
they become due.



3.7 Absence of Litigation. Except as disclosed in the Registration Statement or the SEC
Filings, there is no action, suit, proceeding, inquiry or investigation before or by any court,
public board, government agency, self-regulatory organization or body pending or, to the knowledge
of Parent or any of its Subsidiaries, threatened against or affecting Parent, the Common Stock or
any of Parent’s Subsidiaries or any of Parent’s or Parent’s Subsidiaries’ officers or directors in
their capacities as such, which would reasonably be expected to have a Material Adverse Effect.



3.8 No Integrated Offering. Neither Parent, nor any of its Affiliates, nor any Person acting
on its or their behalf has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that would cause this offering of the
Shares to be integrated with prior offerings by Parent in a manner that would require stockholder
approval pursuant to the rules of the Principal Market on which the Company’s Common Stock is
then listed or traded. The issuance and sale of the Shares hereunder does not contravene the
rules and regulations of the Principal Market. For purposes of this Amendment, the term “Principal
Market” means the NYSE MKT (or any nationally recognized successor thereto); provided, however,
that in the event the Company’s Common Stock is ever listed or traded on The NASDAQ Capital Market,
The NASDAQ Global Market, The NASDAQ Global Select Market, the New York Stock Exchange, the NYSE
Arca, the OTC Bulletin Board, or the OTCQB or the OTCQX operated by the OTC Markets Group, Inc. (or
any nationally recognized successor to any of the foregoing), then the “Principal Market” shall
mean such other market or exchange.



3.9 Intellectual Property Rights. Except as disclosed in the Registration Statement or the
SEC Filings, Parent and its Subsidiaries own or possess adequate rights or licenses to use all
material trademarks, trade names, service marks, service mark registrations, service names,
patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations,
trade secrets and rights necessary to conduct their respective businesses as now conducted. None
of Parent’s material trademarks, trade names, service marks, service mark registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals, government
authorizations, trade secrets or other intellectual property rights have expired or terminated, or,
by the terms and conditions thereof, could expire or terminate within two years from the date of
this Amendment, except as would not reasonably be expected to have a Material Adverse Effect.
Parent and its Subsidiaries do not have any knowledge of any infringement by Parent or its
Subsidiaries of any material trademark, trade name rights, patents, patent rights, copyrights,
inventions, licenses, service names, service marks, service mark registrations, trade secret or
other similar rights of others, or of any such development of similar or identical trade secrets or
technical information by others and there is no claim, action or proceeding being made or brought
against, or to Parent’s knowledge, being threatened against, Parent or its Subsidiaries regarding
trademark, trade name, patents, patent rights, invention, copyright, license, service names,
service marks, service mark registrations, trade secret or other infringement, which would
reasonably be expected to have a Material Adverse Effect.



3.10 Environmental Laws. Except as disclosed in the Registration Statement or the SEC
Filings, Parent and its Subsidiaries (a) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (b) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and (c) are in
compliance with all terms and conditions of any such permit, license or approval, except where, in
each of the three foregoing clauses, the failure to so comply could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.



3.11 Title. Except as disclosed in the Registration Statement or the SEC Filings, Parent and
the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the
business of Parent and the Subsidiaries, in each case free and clear of all Encumbrances, except
for Encumbrances as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by Parent and the Subsidiaries
and Encumbrances for the payment of federal, state or other taxes, the payment of which is neither
delinquent nor subject to penalties.  Any real property and facilities held under lease by Parent
and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which
Parent and the Subsidiaries are in compliance with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and buildings by Parent and
its Subsidiaries.



3.12 Insurance. Parent and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as management of Parent
believes to be prudent and customary in the businesses in which Parent and its Subsidiaries are
engaged. Neither Parent nor any such Subsidiary has been refused any insurance coverage sought or
applied for and neither Parent nor any such Subsidiary has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the financial condition or the earnings, business or
operations of Parent and its Subsidiaries, taken as a whole.



3.13 Regulatory Permits. Except as disclosed in the Registration Statement or the SEC
Filings, Parent and its Subsidiaries possess all certificates, authorizations and permits issued by
the appropriate federal, state or foreign regulatory authorities necessary to conduct their
respective businesses as currently conducted, except where the failure to possess such
certificates, authorizations, or permits would not reasonably be expected to have a Material
Adverse Effect, and neither Parent nor any such Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate, authorization or permit.



3.14 Tax Status. Except as disclosed in the Registration Statement or the SEC Filings, Parent
and each of its Subsidiaries has made or filed all federal and state income and all other material
tax returns, reports and declarations required by any jurisdiction to which it is subject (unless
and only to the extent that Parent and each of its Subsidiaries has set aside on its books
provisions reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all
taxes and other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those being contested in
good faith and has set aside on its books provision reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any amount claimed to be due by the taxing authority of any
jurisdiction, except as would not reasonably be expected to have a Material Adverse Effect, and the
officers of Parent know of no basis for any such claim.



3.15 Transactions With Affiliates.  Except as disclosed in the Registration Statement or the
SEC Filings, none of the officers or directors of Parent and, to the knowledge of Parent, none of
the employees of Parent is presently a party to any transaction with Parent or any Subsidiary
(other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of Parent, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee or
partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees
for services rendered, (ii) reimbursement for expenses incurred on behalf of Parent and (iii) other
employee benefits, including stock option agreements under any stock option plan of Parent.



3.16 Foreign Corrupt Practices.  Neither Parent, nor to the knowledge of Parent, any agent or
other Person acting on behalf of Parent, has (a) directly or indirectly, used any funds for
unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or
domestic political activity, (b) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (c) failed to disclose fully any contribution made by Parent (or made by any Person acting
on its behalf of which Parent is aware) which is in violation of law, or (iv) violated in any
material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.



3.17 Registration Statement. Parent has prepared and filed with the SEC in accordance with
the provisions of the Securities Act the Registration Statement. The Registration Statement was
declared effective by order of the SEC on June 22, 2016. The Registration Statement is effective
pursuant to the Securities Act and available for the issuance of the Shares thereunder, and Parent
has not received any written notice that the SEC has issued or intends to issue a stop order or
other similar order with respect to the Registration Statement or the Prospectus or that the SEC
otherwise has (a) suspended or withdrawn the effectiveness of the Registration Statement or
(b) issued any order preventing or suspending the use of the Prospectus or any Prospectus
Supplement, in either case, either temporarily or permanently or intends or has threatened in
writing to do so. The “Plan of Distribution” section of the Prospectus permits the issuance of the
Shares hereunder. At the time the Registration Statement and any amendments thereto became
effective, at the date of this Amendment and at each deemed effective date thereof pursuant to
Rule 430B(f)(2) of the Securities Act, the Registration Statement and any amendments thereto
complied and will comply in all material respects with the requirements of the Securities Act and
did not and will not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading; and
the Base Prospectus and any Prospectus Supplement thereto, at the time such Base Prospectus or such
Prospectus Supplement thereto was issued and on the Commencement Date, complied and will comply in
all material respects with the requirements of the Securities Act and did not and will not contain
an untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading;
provided that this representation and warranty does not apply to statements in or omissions from
any Prospectus Supplement made in reliance upon and in conformity with information relating to
Seller furnished to Parent in writing by or on behalf of Seller expressly for use therein. Parent
meets all of the requirements for the use of a registration statement on Form S-3 pursuant to the
Securities Act for the offering and sale of the Shares contemplated by this Amendment without
reliance on General Instruction I.B.6. of Form S-3, and the SEC has not notified Parent of any
objection to the use of the form of the Registration Statement pursuant to Rule 401(g)(1) of the
Securities Act. The Registration Statement, as of its effective date, meets the requirements set
forth in Rule 415(a)(1)(x) pursuant to the Securities Act. Parent has not been since March 31,
2016, and currently is not, an Ineligible Issuer (as defined in Rule 405 of the Securities Act).



3.18 Sarbanes-Oxley. Parent is in material compliance with all provisions of the
Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as of the date hereof.



3.19 No Brokers. No brokerage or finder’s fees or commissions are or will be payable by Parent
to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by this Amendment.



3.20 Investment Parent. Parent is not required to be registered as, and immediately after
receipt of payment for the Shares will not be required to be registered as, an “investment company”
within the meaning of the Investment Parent Act of 1940, as amended.



3.21 Listing and Maintenance Requirements. The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act, and Parent has taken no action designed to, or which to its
knowledge is likely to have the effect of, terminating the registration of the Common Stock
pursuant to the Exchange Act nor has Parent received any notification that the SEC is currently
contemplating terminating such registration. Parent has not, in the twelve (12) months preceding
the date hereof, received any notice from the Principal Market to the effect that Parent is not in
compliance with the listing or maintenance requirements of the Principal Market. Parent is in
compliance with all such listing and maintenance requirements.



3.22 Accountants. Parent’s accountants are set forth in the SEC Filings and, to the Knowledge
of Parent, such accountants are an independent registered public accounting firm as required by the
Securities Act.



3.23 No Market Manipulation. Parent has not, and to its knowledge no Person acting on its
behalf has, (a) taken, directly or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of Parent to facilitate the sale or
resale of any of the Shares, (b) sold, bid for, purchased, or, paid any compensation for soliciting
purchases of, any of the Shares, or (c) paid or agreed to pay to any Person any compensation for
soliciting another to purchase any other securities of Parent.



ARTICLE 4

MISCELLANEOUS




4.1 Further Assurances. Each Party agrees to furnish upon request to any other Party such
further information, to execute and deliver to any other Party such other documents, and to do such
other acts and things, all as any other Party may reasonably request, of the requesting Party’s
sole cost and expense, for the purpose of carrying out the intent of this Amendment.



4.2 No Third-Party Beneficiaries4.3 . This Amendment does not confer any rights or remedies
upon any Person other than the Parties.



4.4 Agreement in Full Force and Effect 4.5 . Except as amended by this Amendment, the
Agreement continues in full force and effect and is valid and binding on the Parties as well any
related agreements, and the applicable provisions of the Agreement apply to this Amendment as if
included herein, including, without limitation, the provisions of Article XI of the Agreement not
repeated in this Amendment.



4.6 Successors and Assigns4.7 . This Amendment is binding upon and inures to the benefit of
the Parties and their respective successors and permitted assigns. The Seller may not assign,
delegate or otherwise transfer (whether by operation of law or otherwise) any of Seller’s rights,
interests or obligations in this Amendment without the prior written approval of Parent. Parent
may assign any or all of its rights or interests, or delegate any or all of its obligations, in
this Amendment to (a) any successor to Parent, or any acquirer of a material portion of the
businesses or assets of Parent, (b) one or more of Parent’s Affiliates, or (c) any lender to Parent
as security for obligations to such lender; provided, however, that Parent shall remain fully
liable for all covenants set forth herein, including payment of the Tranche 2 when due.



4.8 Counterparts4.9 . This Amendment may be executed by the Parties in counterparts and shall
be effective as of the date set forth above when each Party shall have executed and delivered a
counterpart hereof, whether or not the same counterpart is executed and delivered by each Party.
When so executed and delivered, each such counterpart shall be deemed an original and all such
counterparts shall be deemed one and the same document. Transmission of images of signed signature
pages by facsimile, e-mail or other electronic means shall have the same effect as the delivery of
manually signed documents in person.



4.10 Notices4.11 . Any notice pursuant to this Amendment must be in writing and will be
deemed effectively given to another Party on the earliest of the date (a) one Business Day after
receipt of confirmation if such notice is sent by facsimile, (b) three Business Days after delivery
of such notice into the custody and control of an overnight international courier, (c) one Business
Day after delivery of such notice in person and (d) such notice is received by that Party; in each
case to the appropriate address below (or to such other address as a Party may designate by notice
to the other Parties):



If to Seller:




Andrea Biffi, CEO


SOFAR, S.p.A


Via Firenze 40


20060 Trezzano Rosa (MI), Italy


Fax: 0039 02-90967239


Phone: 0039 02-9093621




Copy to (which will not constitute notice):




Stefano Candela


Franzosi Dal Negro Setti


Via Brera, 5


20121 Milan, Italy


Fax: 0039 02-80299259


Phone: 0039 02-85909220




If to Parent and Buyer:




Todd Pope, CEO


TransEnterix, Inc.


635 Davis Drive, Suite 300


Morrisville, North Carolina 27560


Phone: (919) 765-8400




Copy to (which will not constitute notice):




Joshua Weingard


Chief Legal Officer


TransEnterix, Inc.


635 Davis Drive, Suite 300


Morrisville, North Carolina 27560


Phone: 305-575-4602




Mary Mullany


Ballard Spahr LLP


1735 Market Street, 51st Floor


Philadelphia, PA 19103




Phone: 215-864-8631



4.12 Governing Law4.13 . This Amendment will be governed by the laws of the Republic of Italy
without giving effect to any choice or conflict of law principles of any jurisdiction; provided,
however, that the issuance of the Shares shall be governed by the laws of the State of Delaware
A.S.A.P. and the U.S. federal securities laws.



4.14 Amendments and Waivers4.15 . No amendment of any provision of this Amendment will be
valid unless the amendment is in writing and signed by Parent and Seller. No waiver of any
provision of this Amendment will be valid unless the waiver is in writing and signed by the waiving
Party. The failure of a Party at any time to require performance of any provision of this
Amendment will not affect such Party’s rights at a later time to enforce such provision. No waiver
by any Party of any breach of this Amendment will be deemed to extend to any other breach hereunder
or affect in any way any rights arising by virtue of any other breach.



[Signature page follows]The Parties have executed and delivered this Amendment to the
Membership Interest Purchase Agreement as of the date first written above.




“Buyer”:




TRANSENTERIX INTERNATIONAL, INC.




By: /s/ Joseph P. Slattery

Name: Joseph P. Slattery

Title: EVP and Chief Financial Officer





“Seller”:




SOFAR, S.P.A.




By: /s/ Andrea Biffi

Name: Andrea Biffi

Title: Chief Executive Officer





“Parent”:




TRANSENTERIX, INC.




By: /s/ Joseph P. Slattery

Name: Joseph P. Slattery

Title: EVP and Chief Financial Officer