EXHIBIT 10.55
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of
March 1, 2002 among ComVest Venture Partners, L.P., a Delaware limited
partnership ("INVESTOR"), and the undersigned shareholders of Horizon Medical
Products, Inc., a Georgia corporation (the "COMPANY"), listed on Exhibit A
hereto (collectively, the "Stockholders"). As used in this Agreement, the term
"Stockholder" means, with respect to each person listed on Exhibit A hereto,
such person.
RECITALS
A. Investor, Medtronics, Inc. ("MEDTRONICS") and the Company have
executed a Note Purchase Agreement (the "PURCHASE AGREEMENT") dated as of March
1, 2002, pursuant to which the Company has agreed to issue and the Investor has
agreed to purchase $4,400,000 of the Company's Senior Subordinated Convertible
Notes (the "SUBORDINATED NOTES") and, if applicable, up to $15,000,000 of the
Company's Senior Notes (the "SENIOR NOTES"), Medtronic has agreed to purchase
$4,000,000 of the Company's Subordinated Notes and, in the sole discretion of
the Investor, the Company shall issue an additional $6,600,000 of Subordinated
Notes to additional purchasers (collectively, the "TRANSACTION").
B. Investor, Bank of America, N.A. and Banc of America Commercial
Finance Corporation, formerly known as NationsCredit Commercial Corporation
(collectively, the "SELLER"), have entered into an agreement (the "BOA
AGREEMENT") setting forth the terms and conditions of a purchase by Investor of
all of the Seller's right, title, interest and benefit to, in and under that
certain loan to the Company (the "LOAN") evidenced by a Revolving Credit Note in
the original principal amount of $50,000,000 from the Company to Seller dated as
of May 26, 1998 (the "NOTE").
C. Investor has entered into the Purchase Agreement and the BofA
Agreement in reliance upon the execution and delivery of this Agreement by the
Stockholders.
D. Each Stockholder is the record holder and/or beneficial owner (as
defined in rule 13d-3 under the Securities and Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) of such number of shares of the Company's outstanding
capital stock ("COMPANY STOCK") and securities convertible into Company Stock as
indicated on Exhibit A, which Exhibit A sets forth the nature of such ownership.
NOW, THEREFORE, in consideration of the foregoing and the covenants,
promises and representations set forth herein, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Until the later of (i) the
earlier of (A) such date and time as the Stockholder/AMEX Conversion Approval
and the Stockholder Approval (each as defined in the Purchase Agreement) have
each been obtained or (B) such date and time
as the Purchase Agreement shall have been terminated in accordance with its
terms; and (ii) if Investor closes the transaction contemplated by the BofA
Agreement and purchases the Note, 6 months from the date hereof (the "EXPIRATION
DATE"), no Stockholder will assign, sell, pledge, hypothecate or otherwise
transfer or dispose of any of the Shares (as defined in Section 4.1 below), or
any interest therein, deposit any of such shares or securities into a voting
trust or enter into a voting agreement or arrangement or grant any proxy with
respect thereto (except as contemplated by this Agreement and the Proxy (as
defined in Section 3 below)) or enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect transfer or
disposition of any of the Shares. In the case of any transfer by operation of
law, this Agreement shall be binding upon the transferee.
1.2 Additional Purchases. Each Stockholder agrees that any
shares of the Company's capital stock or other securities of the Company that
such Stockholder purchases or with respect to which such Stockholder otherwise
acquires beneficial ownership (as such term is defined in Rule 13d-3 under the
Exchange Act) after the execution of this Agreement and prior to the Expiration
Date shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
2. Agreement to Vote Shares. Each Stockholder will, with respect to the
Shares, at every meeting of the stockholders of the Company called with respect
to, and at every adjournment thereof, and on every action or approval by consent
of the stockholders of the Company with respect to approval of the Purchase
Agreement and the transactions contemplated therein and any matter that could
reasonably be expected to facilitate the consummation of the transactions
contemplated by the Purchase Agreement vote such Shares in favor of approval of
the Purchase Agreement and the transactions contemplated therein and any matter
that could reasonably be expected to facilitate the consummation of the
transactions contemplated by the Purchase Agreement (including, without
limitation, any issuance by the Company of the Subordinated Notes and the Senior
Notes, and shares of its common stock issuable upon the exercise of conversion
(or similar) rights granted to the holders of the Subordinated Notes and the
Senior Notes, and any amendments to the Company's Certificate of Incorporation
or Bylaws required pursuant to the Purchase Agreement). Each Stockholder agrees
not to take any actions contrary to such Stockholder's obligations under this
Agreement.
3. Irrevocable Proxy. Each Stockholder acknowledges that concurrently
with the execution of this Agreement, such Stockholder has executed and
delivered to Investor an Irrevocable Proxy, coupled with an interest, the form
of which is attached hereto as Exhibit B (the "PROXY"), so as to vote the Shares
set forth therein in accordance with this Agreement and each Stockholder hereby
grants to Investor such irrevocable proxy.
4. Representations, Warranties and Covenants of the Stockholders.
4.1 Each Stockholder owns, beneficially and/or of record, as
of the date hereof, the number of shares of Company Stock or securities
convertible into Company Stock set forth next to his name in Exhibit A hereto
(the "SHARES"), subject to no rights of others and free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on the Stockholder's voting rights, charges and other
encumbrances of
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any nature whatsoever other than those imposed by federal and state securities
laws (provided that 831,789 Shares held by Xxxxxxxx Xxxx have been pledged to
Tapir Investments (Bahamas) Ltd., pursuant to a Loan and Pledge Agreement, dated
April 1998). On the date hereof, the Shares constitute all of the shares of
Company Stock or securities convertible into Company Stock owned, beneficially
and/or of record, by each such Stockholder. The Stockholder's right to vote or
dispose of the Shares owned, beneficially and/or of record, by such Stockholder
is not subject to any voting trust, voting agreement, voting arrangement or
proxy and such Stockholder has not entered into any contract, option or other
arrangement or undertaking with respect thereto.
4.2 Each Stockholder has the legal capacity to execute,
deliver and perform this Agreement and the Proxy. This Agreement constitutes a
valid and binding obligation of each Stockholder enforceable against such
Stockholder in accordance with its terms. If such Stockholder is an individual
married and the Shares constitute community property under applicable law, this
Agreement has been duly authorized, executed and delivered by, and constitutes
the valid and binding agreement of, the Stockholder's spouse enforceable against
such spouse in accordance with its terms. If such Stockholder is a person other
than an individual, such Stockholder has full power and authority to make, enter
into and carry out the terms of this Agreement and the Proxy.
4.3 The execution, delivery and performance by each
Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) result in any breach or violation of
or be in conflict with or constitute a default under the terms of any law,
order, regulation or agreement or arrangement to which he is a party or by which
he is bound, (ii) require any filing with or authorization by any governmental
entity, or (iii) require any consent or other action by any person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration or to a loss of any benefit to which he is entitled
under any provision of any agreement or other instrument binding on him.
5. Additional Documents. Each Stockholder hereby covenants and agrees
to execute and deliver any additional documents and instruments, and take such
actions, necessary or desirable, in the opinion of Investor, to carry out the
intent of this Agreement.
6. Consent and Waiver. Each Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the transactions
contemplated in the Purchase Agreement under the terms of any agreements to
which such Stockholder is a party or pursuant to any rights such Stockholder may
have.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Miscellaneous.
8.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then
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the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
8.2 Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein or in the Proxy, neither this
Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by either of the parties without prior written consent of the
other.
8.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
8.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Buyer will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreement
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Investor upon any such violation,
Investor shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Investor at law or in equity without any requirement of the posting of a bond or
other security.
8.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to Investor: Comvest Venture Partners, L.P.
c/o Commonwealth Associates L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
With a copy to: Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
If to a Stockholder: At the address provided on the signature
page hereto
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
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8.6 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of New York without giving effect to the conflicts of laws principles thereof.
Each of the parties hereto hereby further consents to the jurisdiction of the
federal and state courts located in New York County, New York for the purpose of
pursuing any remedy. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any such dispute,
action or proceeding based on a lack of personal jurisdiction or the laying of
venue.
8.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
8.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
COMVEST VENTURE PARTNERS, L.P.
By: Comvest Capital Management LLP,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: President and Managing Director
-----------------------------------
SHAREHOLDERS
/s/ Xxxxxxxx X. Xxxx
----------------------------------------
Xxxxxxxx X. Xxxx
Address for Notice:
0000 Xxxxxxxxx Xxxxxxx
Seven Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxx Family Investments, L.L.L.P.
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------
Xxxxxxxx X. Xxxx
Managing General Partner
Address for Notice:
0000 Xxxxxxxxx Xxxxxxx
Seven Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Address for Notice:
0000 Xxxxxxxxx Xxxxxxx
Seven Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
EXHIBIT A
OWNERSHIP OF CAPITAL STOCK
---------------------------------- ---------------------- ------------------------ ----------------- ------------------
Beneficial Owner Shares of Common Shares of Preferred Options Warrants
---------------- ----------------- -------------------- -------- --------
Stock Stock
----- -----
---------------------------------- ---------------------- ------------------------ ----------------- ------------------
Xxxxxxxx X. Xxxx 3,646,198* -- -- --
---------------------------------- ---------------------- ------------------------ ----------------- ------------------
Xxxxxxx X. Xxxxxxxx, Xx. 2,921,890 -- -- --
---------------------------------- ---------------------- ------------------------ ----------------- ------------------
Xxxx Family Investments, L.L.L.P.
924,210 -- -- --
---------------------------------- ---------------------- ------------------------ ----------------- ------------------
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* Includes the 924,210 shares of Common Stock owned by Xxxx Family
Investments, L.L.L.P. which Xx. Xxxx is deemed to beneficially own as the
managing general partner.
EXHIBIT B
IRREVOCABLE PROXY
WITH RESPECT TO THE CAPITAL STOCK OF
HORIZON MEDICAL PRODUCTS, INC.
This Irrevocable Proxy is granted pursuant to the Voting Agreement,
dated as of March 1, 2002 (the "VOTING AGREEMENT"), among ComVest Venture
Partners, L.P. ("INVESTOR"), Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx and the Xxxx Family
Investments, L.L.L.P. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Voting Agreement.
The undersigned Stockholder of Horizon Medical Products, Inc., a
Georgia corporation (the "COMPANY"), hereby irrevocably appoints as the sole and
exclusive attorney and proxy of the undersigned until the Expiration Date, with
full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of the Company
and any other securities of Company beneficially owned by the undersigned, which
shares and other securities are listed on Exhibit A to the Voting Agreement (the
"Shares"), and any and all other shares or securities issued or issuable in
respect thereof on or after the date hereof. Upon the execution hereof, all
prior proxies given by the undersigned with respect to the Shares and any and
all other shares or securities issued or issuable in respect thereof on or after
the date hereof are hereby revoked and no subsequent proxies will be given.
Investor and the undersigned Stockholder agree and acknowledge that the
grant of this Irrevocable Proxy is a material inducement for Investor to enter
into the Purchase Agreement and is therefore coupled with an interest and
irrevocable. The attorneys and proxies named above will be empowered at any time
prior to the Expiration Date to exercise all voting and other rights (including,
without limitation, the power to execute and deliver written consents with
respect to the Shares) of the undersigned at every annual, special or adjourned
meeting of the Company shareholders, and in every written consent in lieu of
such a meeting, or otherwise, in favor of approval of the Purchase Agreement,
the transactions contemplated therein and any other matter that could reasonably
be expected to facilitate the consummation of such transactions (including,
without limitation, any issuance by the Company of the Subordinated Notes and
the Senior Notes, and shares of its common stock issuable upon the exercise of
conversion (or similar) rights granted to the holders of the Subordinated Notes
and the Senior Notes, and any amendments to the Company's Certificate of
Incorporation or Bylaws required pursuant to the Purchase Agreement).
The attorneys and proxies named above may only exercise this proxy to
vote the Shares subject hereto at any time prior to the Expiration Date at every
annual, special or adjourned meeting of the shareholders of the Company and in
every written consent in lieu of such meeting, in favor of approval of the
Purchase Agreement and the transactions contemplated therein, and any other
matter that could reasonably be expected to facilitate the consummation of the
transactions as described above, and may not exercise this proxy on any other
matter.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: March 1, 2002
/s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
Signature Page
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: March 1, 2002
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx, Xx.
Signature Page
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: March 1, 2002
XXXX FAMILY INVESTMENTS, L.L.L.P.
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
Managing General Partner
Signature Page
