EXHIBIT 10.61
SECURITIES PLEDGE AGREEMENT
THIS SECURITIES PLEDGE AGREEMENT (this "Agreement") is dated as of this
___ day of March, 2002, by and between Xxxxxxxx Xxxx and Xxxx Family
Investments, L.L.L.P. (collectively, the "Pledgor") and ComVest Venture
Partners, L.P., a Delaware limited partnership with its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Pledgee").
WITNESSETH:
WHEREAS, in order to provide financing for the repayment of certain
indebtedness of Horizon Medical Products, Inc., a Delaware corporation (the
"Company"), the Company has proposed to issue and sell to Pledgee and, if so
elected by Pledgee, certain Additional Note Purchasers (as such term is defined
in the Note Purchase Agreement referred to below) its Senior Subordinated
Convertible Notes (the "Notes") upon the terms and subject to the conditions
contained in that certain Note Purchase Agreement, dated as of the date hereof
(the "Note Purchase Agreement") by and between the Company, Pledgee and such
Additional Note Purchasers as are parties thereto (capitalized terms used, but
not otherwise defined herein, shall have the meaning given to such terms in the
Note Purchase Agreement);
WHEREAS, in order to induce Pledgee and any Additional Note Purchasers
to enter into the Note Purchase Agreement and to purchase the Notes in
accordance therewith, Pledgor has agreed to enter into this Agreement and, on
the terms and subject to the conditions contained herein, to pledge all of the
Pledged Securities (as defined below) to Pledgee, for the ratable benefit of
Pledgee and each Additional Note Purchaser, if any.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Definitions. The term "Pledged Securities" shall mean the securities
described in Schedule I hereto and any shares of the Company's Capital Stock
(including securities exercisable for or convertible into Capital Stock) that
Pledgor purchases or otherwise acquires beneficial ownership of after the
execution of this Agreement, together with all certificates, options, rights, or
other distributions issued as an addition to, in substitution or in exchange
for, or on account of, any such securities, and all proceeds of all of the
foregoing, now or hereafter owned or acquired by the Pledgor.
2. Agreement to Pledge.
(a) As security for the obligations of Pledgor under Section 5.5, 5.8
and 1.11 of the Securityholders Agreement (as defined in the Note Purchase
Agreement), the Pledgor hereby pledges, hypothecates, assigns, transfers and
delivers unto Pledgee, its successors and assigns, for the ratable benefit of
the Pledgee and each Additional Note Purchaser, if any, the Pledged Securities
in form transferable for delivery, together with all right, title, interest,
powers, privileges and preferences pertaining or incidental thereto, and grants
the Pledgee a lien on and security interest therein.
(b) If the Pledgor shall become entitled to receive or shall receive,
in connection with any of the Pledged Securities, any:
(i) certificate representing such Pledged Securities, including, but
without limitation, any certificate representing a dividend or in connection
with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off or
split-off;
(ii) option, warrant, or right, whether as an addition to or in
substitution or in exchange for any of the Pledged Securities, or otherwise;
(iii) dividend or distribution payable in cash or in property,
including securities issued by other than the issuer of any of the Pledged
Securities; or
(iv) extraordinary or liquidating dividends, redemptions or
distributions, then:
the Pledgor shall accept the same as the Pledgee's agent, in trust for the
Pledgee, and shall deliver them forthwith to the Pledgee in the exact form
received with, as applicable, the Pledgor's endorsement when necessary, or
appropriate stock powers duly executed in blank, to be held by the Pledgee,
subject to the terms hereof, as part of the Pledged Securities.
3. Pledgor's Warranties and Representations. The Pledgor represents and
warrants that:
(a) It has, and has duly exercised, all requisite power and authority
to enter into this Agreement, to pledge the Pledged Securities for the purposes
described in Section 2(a), and to carry out the transactions contemplated by
this Agreement;
(b) It is the legal and beneficial owner of all of the Pledged
Securities and the Pledged Securities constitute all of the Capital Stock of the
Company which is owned of record or beneficially by the Pledgor and which, as of
the date hereof, is not subject to any pledge, mortgage, hypothecation, lien,
charge, encumbrance or security interest in favor of any third party other than
Pledgee and the Additional Note Purchasers as provided herein;
(c) Except as provided herein, all of the Pledged Securities are owned
by the Pledgor of record and beneficially, free of any pledge, mortgage,
hypothecation, lien, charge, encumbrance or security interest in such securities
or the proceeds thereof; and
(d) Upon delivery of the Pledged Securities to the Pledgee or its
agent, this Agreement shall create, for the ratable benefit of Pledgee and each
Additional Note Purchaser, a valid first lien upon and perfected security
interest in the Pledged Securities and the proceeds thereof, subject to no prior
security interest, lien, charge or encumbrance, or agreement purporting to grant
to any third party a security interest in the property or assets of the Pledgor
which would include the Pledged Securities.
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4. Pledgor's Covenants.
(a) The Pledgor hereby covenants that, until the indebtedness
represented by the Notes has been repaid in full and the Notes cancelled, it
will not sell, convey, or otherwise dispose of any of the Pledged Securities or
any interest therein or create, incur, or permit to exist any pledge, mortgage,
lien, charge, encumbrance or any security interest whatsoever in or with respect
to any Pledged Securities or the proceeds thereof, other than created hereby.
(b) The Pledgor warrants and will, at its own expense, defend the
Pledgee's right, title, special property and security interest in and to the
Pledged Securities against the claims of any person, firm, corporation or other
entity.
5. Notices in Regard of Pledged Securities. The Pledgor will promptly
deliver to the Pledgee all written notices, and will promptly give the Pledgee
written notice of any other notices, received by it with respect to Pledged
Securities, and the Pledgee will promptly give like notice to the Pledgor of any
such notices received by it or its nominee.
6. Agreement to Execute Further Documents. The Pledgor shall at any
time, and from time to time, promptly upon the written request of the Pledgee,
execute and deliver such further documents and do such further acts and things
as the Pledgee may reasonably request to effect the purposes of this Agreement,
including, without limitation, delivering to the Pledgee upon the occurrence of
an Event of Default irrevocable proxies with respect to the Pledged Securities
in form satisfactory to the Pledgee. Until receipt thereof, this Agreement shall
constitute the Pledgor's proxy to the Pledgee or its nominee to vote all of the
Pledged Securities then registered in the Pledgor's name.
7. Power of Attorney. From and after an Event of Default, the Pledgor
hereby appoints the Pledgee as the Pledgor's attorney-in-fact for the purpose of
carrying out the provisions of this Agreement and taking any action and
executing any instrument which either may deem necessary or advisable to
accomplish the purposes hereof. Without limiting the generality of the
foregoing, the Pledgee shall have the right and power to receive, endorse and
collect all checks and other orders for the payment of money made payable to the
Pledgor representing any interest or dividend or other distribution payable in
respect of the Pledged Securities or any part thereof and to give full discharge
for the same.
8. Return of Pledged Securities. Pledgee shall continue to hold the
Pledged Securities as collateral and security, for the ratable benefit of itself
and each Additional Note Purchaser, if any, unless and until the indebtedness
represented by the Notes is fully paid and satisfied. Upon the repayment in full
of all of the indebtedness represented by the Notes and the satisfaction of all
additional costs and expenses of the Pledgee as provided herein, this Agreement
shall terminate and the Pledgee shall deliver to the Pledgor, at the Pledgor's
expense, such of the Pledged Securities as shall not have been sold or otherwise
applied pursuant to this Agreement.
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9. General.
(a) Beyond the exercise of reasonable care to assure the safe custody
of the Pledged Securities while held hereunder, the Pledgee shall have no duty
or liability to preserve rights pertaining thereto and shall be relieved of all
responsibility for the Pledged Securities upon surrendering it or them or
tendering surrender of it or them to the Pledgor.
(b) No course of dealing between the Pledgor and the Pledgee, nor any
failure to exercise, nor any delay in exercising, any right, power or privilege
of the Pledgee hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
(c) The rights and remedies provided herein are cumulative and are in
addition to and not exclusive of any rights or remedies provided by law,
including, but without limitation, the rights and remedies of a secured party
under the Uniform Commercial Code.
(d) The provisions of this Agreement are severable, and if any clause
or provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision or part thereof in such jurisdiction and shall not in any
manner affect such clause or provision in any other jurisdiction or any other
clause or provision in this Agreement in any jurisdiction.
(e) Any notice required or permitted by this Agreement shall be
effective if mailed, postage prepaid, by registered or certified mail, return
receipt requested, or if delivered to the Pledgor or Pledgee at their addresses
specified below, or at such other addresses as the Pledgor or the Pledgee may
theretofore have designated in writing and given in like manner to the other.
(f) This Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the parties hereto.
(g) This Agreement shall be construed in accordance with the
substantive law of the State of New York without regard to principles of
conflicts of law and is intended to take effect as an instrument under seal.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
Signed, sealed, sworn to and PLEDGOR:
delivered in the presence of:
XXXXXXXX X. XXXX
/s/ Xxxxxxxx X. Xxxx
-------------------------------- ----------------------------------------
Witness Xxxxxxxx X. Xxxx
/s/ Xxxxxxxx Xxxxxx
--------------------------------
Notary Public
Notarized this 15th day of March, 2002. Address:
3935 Paces Manor
My commission expires: Xxxxxxx, Xxxxxxx 00000
(NOTARIAL SEAL)
Signed, sealed, sworn to and PLEDGOR:
delivered in the presence of:
XXXX FAMILY INVESTMENTS, L.L.L.P.
-------------------------------- By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
/s/ Xxxxxxxx Xxxxxx Name: Xxxxxxxx X. Xxxx
-------------------------------- Title: Managing General Partner
Notary Public
Notarized this 15th day of March, 2002. Address:
3935 Paces Manor
My commission expires: Xxxxxxx, Xxxxxxx 00000
(NOTARIAL SEAL)
COMVEST COUNTERPART SIGNATURE PAGE TO
PLEDGE AGREEMENT
Signed, sealed, sworn to and PLEDGEE:
delivered in the presence of:
-------------------------------- COMVEST VENTURE PARTNERS, L.P.
Witness
/s/ Xxxxxxxx Xxxxxx
--------------------------------- By: /s/ Xxxxxx X. Xxxxxx
Notary Public -------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: President and Managing Director
----------------------------------
Notarized this 15th day of March, 2002.
Address:
My commission expires:
000 Xxxxx Xxxxxx
(NOTARIAL SEAL) Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE I
Amount and Description of Pledged
Issuer Securities Name of Holder
------ --------------------------------- --------------
Horizon Medical Products, Inc. 2,814,198 Shares of Company common Xxxxxxxx X. Xxxx and
stock, Cert. Nos. HMP0025, HMP0073, Xxxx Family
HMP0072 and ___________ Investments, L.L.L.P.
POWER OF ATTORNEY TO TRANSFER SECURITIES
FOR VALUE RECEIVED, the undersigned, Xxxxxxxx X. Xxxx and Xxxx Family
Investments, L.L.L.P., hereby sell, assign and transfer to ComVest Venture
Partners, L.P., 2,814,198 shares of Company common stock, Certificate Nos.
HMP0025, HMP0073, HMP0072, and ___________ standing in their names on the books
of Horizon Medical Products, Inc. and do hereby irrevocably constitute and
appoint any officer or transfer agent of the corporation the power of attorney
to transfer all said shares on the books of the within named corporation with
full power of substitution.
Signed, sealed, sworn to and XXXX FAMILY INVESTMENTS, L.L.L.P.
delivered in the presence of:
-------------------------------- By:
Witness -------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Partner
--------------------------------
Notary Public
Notarized this ___ day of March, 2002.
My commission expires:
(NOTARIAL SEAL)
Signed, sealed, sworn to and XXXXXXXX X. XXXX
delivered in the presence of:
-------------------------------- ----------------------------------------
Witness Xxxxxxxx X. Xxxx
--------------------------------
Notary Public
Notarized this ___ day of March, 2002.
My commission expires:
(NOTARIAL SEAL)
