EXECUTION COPY
AMENDMENT NO. 1
TO
NOTE PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment"), dated as of October 21, 2003
by and among Horizon Medical Products, Inc., a Georgia corporation (the
"Company"); Comvest Venture Partners, L.P., a Delaware limited partnership
("ComVest," and together with its successors and assigns, the "Purchaser") and
the Additional Note Purchasers (as defined in the Note Purchase Agreement
(defined below)), amends that certain Note Purchase Agreement among the parties
hereto dated as of March 1, 2002 (the "Note Purchase Agreement").
WHEREAS, the Company has requested an extension of the time to repay
the indebtedness and certain other modifications to the Note Purchase Agreement;
and
WHEREAS, the Lenders have agreed to such modification subject to
certain terms and conditions. NOW, THEREFORE, in consideration of the
premises and mutual covenants of the parties hereunder, the
Company, the Purchaser and the Additional Note Purchasers agree as follows:
Section 1. All capitalized terms used but not otherwise defined herein
shall have the meaning ascribed to such terms in the Note Purchase Agreement.
2. Amendments. The Note Purchase Agreement and to the extent applicable
the Notes are hereby modified as follows:
(a) The definition "Maturity Date" shall be amended in its
entirety to read as follows: ""Maturity Date" means July 16, 2005".
(b) The definition "Securityholders Agreement" shall be amended
in its entirety to read as follows: ""Securityholders Agreement"
shall mean that certain Amended and Restated Securityholders Agreement,
dated as of the date hereof in the form attached hereto as Exhibit E,
as may from time to time be amended, modified, or supplemented
according to its terms among the Company and certain holders of the
capital stock of the Company at the time of the Closing."
(c) Section 3.1(c) shall be amended in its entirety to read as
follows: "(c) The premium to be paid on the principal amount of any
prepayment shall be as follows:
Payment Date Principal Premiums
Closing Date through the one year No Premium - 100% of the
anniversary of the Closing Date principal amount of the Note
The one year anniversary of the Closing
Date through the 15 month anniversary 5% Premium - 105% of the
of the Closing Date principal amount of the Note
The 15 month anniversary of the Closing 5% Premium - 105% of the
Date through March 16, 2004 principal amount of the Note
After March 17, 2004 No Premiums - 100% of the
principal amount of the Note"
(d) After Section 9.7, the following section shall be added:
"Section 9.8. Additional Covenants. For so long as any of the Notes
remain outstanding the prior written approval of ComVest and Medtronic shall be
required in order to affect any of the following:
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(a) Hiring the CEO or any employee of similar status; paying
annual compensation of $200,000 or more to any employee; or granting
options to purchase 100,000 or more shares of Stock to any employee;
(b) The acquisition of the Company by another entity by means of
any transaction or series of related transactions with the Company
(including, without limitation, any stock purchase, reorganization,
merger or consolidation but, excluding any merger effected exclusively
for the purpose of changing the domicile of this Corporation); or any
other transaction which results in the disposition of 50% or more of
the voting power of all classes of capital stock of the Company unless
the Company's stockholders of record as constituted immediately prior
to such acquisition or sale will, immediately after such acquisition or
sale (solely by virtue of securities issued as consideration for this
Corporation's acquisition or sale or otherwise) hold at least 50% of
the voting power of the surviving or acquiring entity;
(c) The sale of all or any material portion of the assets of the
Company;
(d) The liquidation, dissolution or winding up of the Company;
(e) Making, or permitting any subsidiary to make, any loan or
advance to, or own any stock or other securities of, any subsidiary or
other corporation, partnership, or other entity unless it is wholly
owned by the Company;
(f) Making, or permitting any subsidiary to make, any loan or
advance to any person (other than expense advances), including, without
limitation, any executive employee or director of the Company or any
subsidiary;
(g) Guaranteeing, directly or indirectly, or permitting any
subsidiary to guarantee, directly or indirectly, any indebtedness
except for trade accounts of the Company or any subsidiary arising in
the ordinary course of business;
(h) Any capital expenditures exceeding $150,000 in any single
instance or $500,000 in the aggregate in any Fiscal Year;
(i) Entering into, modifying or terminating any Material Contract,
having an aggregate economic impact to the Company of $500,000 or more
in any Fiscal Year; or
(j) The redemption by the Company of any of its securities;
(e) Effective Date. This amendment shall be effective upon such time as
the additional independent director is selected pursuant to Section 5.1(d) of
the Amended and Restated Securityholders Agreement.
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(f) Original Agreement. Except as modified herein the Original
Agreement remains in full force and effect.
COMPANY
HORIZON MEDICAL PRODUCTS, INC.
By:/s/
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Name:
Its: Chairman and CEO
PURCHASER
COMVEST VENTURE PARTNERS
By:
--------------------------------------------
Name:
Its:
ADDITIONAL NOTE PURCHASERS
MEDTRONIC, INC.
By:
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Name:
Its:
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