THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit
4.3
THIRD
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT is made on May 24, 2010 (this
“Agreement”),
by and between Bison Capital Equity Partners II-A, L.P., a Delaware limited
partnership, and Bison Capital Equity Partners II-B, L.P., a Delaware limited
partnership (collectively, “Purchaser”),
on the one hand, and The Center for Wound Healing, Inc., a Nevada corporation
(the “Company”),
on the other hand. Any capitalized term used but not otherwise
defined herein shall have the same meaning as set forth in the Securities
Purchase Agreement dated as of March 31, 2008 by and between Purchaser and the
Company, as amended by the First Amendment to Securities Purchase Agreement
dated as of April 16, 2009 and the Second Amendment to Securities Purchase
Agreement dated February 12, 2010 (as otherwise amended, the “Securities
Purchase Agreement”).
1. Consolidated
Adjusted EBITDA for the fiscal year ending June 30, 2008 (for purposes of
determining Base Multiple and consequently the Put Price) shall be adjusted to
account for (a) the difference between net accounts receivables (gross accounts
receivables net of the applicable allowance for bad debts) as of June 30, 2008
that are related to revenue recognized during the fiscal year ending June 30,
2008 (“FY08
Net AR”) and the known or estimated collection of FY08 Net AR, and (b)
any positive expenses accrued or recognized after June 30, 2008 that relate to
the fiscal year ending June 30, 2008. At each fiscal quarter end beginning
with June 30, 2010, the Company will certify to Purchaser whether any
adjustments to Consolidated Adjusted EBITDA need to be made in order to comply
with the immediately foregoing sentence. The parties acknowledge and
agree that the Consolidated Adjusted EBITDA for the fiscal year ending June 30,
2008 that the parties agree to or as calculated pursuant to the Securities
Purchase Agreement (a) does not reflect GAAP and (b) is not the Company’s
earnings as reported in accordance with GAAP, but rather, the Consolidated
Adjusted EBITDA for the fiscal year ending June 30, 2008 is a contractually
negotiated financial metric that the parties are using solely as between
themselves merely for purposes of determining the Company’s
performance.
2. This
Agreement amends the Securities Purchase Agreement and all references to the
Securities Purchase Agreement shall be deemed to incorporate this
Agreement. All other terms and conditions of the Transaction
Documents shall remain in full force and effect and shall not be affected by
this Agreement.
3. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original as against any party whose signature appears hereon,
and all of which shall together constitute one and the same
instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
4. Sections 14.5, 14.6, 14.7 and 14.8 of the
Securities Purchase Agreement are hereby incorporated by reference and made a
part of this Agreement mutatis
mutandis, except that the references therein to “this Agreement” shall
include this Agreement.
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5. The
Company confirms and agrees that this Agreement shall constitute a Transaction
Document under the Securities Purchase Agreement. Accordingly, it
shall be an Event of Default under the Securities Purchase Agreement if any
representation or warranty made or deemed made by the Company under or in
connection with this Agreement shall have been incorrect in any material respect
when made or deemed made or if the Company fails to perform or comply with any
covenant or agreement contained herein.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have each caused this Agreement to be duly
signed as of the date first above written.
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BISON
CAPITAL EQUITY PARTNERS II-A, L.P.
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By:
BISON CAPITAL PARTNERS II, LLC, its general partner
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By:
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/s/ Xxxxxxx X . Xxxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxxx | |||
| Title: Managing Member | |||
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BISON
CAPITAL EQUITY PARTNERS II-B, L.P.
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By:
BISON CAPITAL PARTNERS II, LLC, its general partner
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By:
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/s/ Xxxxxxx X . Xxxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxxx | |||
| Title: Managing Member | |||
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By:
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/s/
Xxxxxx X. Xxxxxxx
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| Name: Xxxxxx X. Xxxxxxx | |||
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Title: Chief
Executive Officer
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