EXHIBIT 10.2
HORIZON MEDICAL PRODUCTS, INC.
AMENDED AND RESTATED
SECURITYHOLDERS AGREEMENT
This Amended and Restated Securityholders' Agreement (this "Agreement")
is entered into 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"), Medtronic, Inc., a Minnesota
corporation ("Medtronic" and, together with ComVest, each, an "Investor," and,
together, the "Investors"), Standard Federal Bank National Association, a
national banking association, acting by and through LaSalle Business Credit,
Inc., a Delaware corporation ("Lender"), and Xxxxxxxx Xxxx (a "Major
Stockholder" and, together with the Investors, the "Company Stockholders"). This
Agreement supercedes the Securityholders Agreement among the parties hereto and
certain other persons dated as of March 16, 2002 (the "Original Agreement").
RECITALS
WHEREAS, the Company and the Investors executed a Note Purchase
Agreement, dated as of March 1, 2002 (the "Purchase Agreement"), pursuant to
which the Company agreed to issue, and the Investors agreed to purchase, up to
$15,000,000 of the Company's Senior Subordinated Convertible Notes (the
"Subordinated Notes"); and, pursuant to the terms of the Subordinated Notes and
the Purchase Agreement, (i) the Investors have the option to convert a portion
of principal of the Subordinated Notes for shares of common stock of the Company
(the "Common Stock") at a conversion price of $.01 per share, (ii) upon certain
Events of Default as defined in the Purchase Agreement the Investors may also
convert the principal of the Subordinated Notes into Shares of Common Stock (the
"Default Stock"); (iii) pursuant to the terms of a Convertible Promissory Bridge
Note, dated the date hereof, the holder of such Note is entitled to receive
shares of Common Stock (the "Bridge Stock"), and (iv) pursuant to the terms of
the Fee Letter, dated March 1, 2002, between ComVest and the Company, ComVest
may receive certain additional shares of Common Stock (the "Fee Stock");
WHEREAS, ComVest has also agreed, in the event that the Company is
unable to secure a bank or other financial institution to provide the Company
with a line of credit or other senior debt financing, pursuant to which the
Company would receive or be entitled to draw down immediately available funds of
at least $15,000,000, to provide such funds to the Company by purchasing the
Company's Senior Secured Notes in the principal amount of $15,000,000 (the
"Senior Notes"); and in connection with the issuance of the Senior Notes,
ComVest has the option to exchange certain of the Senior Notes for shares of
Common Stock; and
WHEREAS, in order to induce the Investors to purchase the Subordinated
Notes pursuant to the Purchase Agreement and, if applicable, to induce ComVest
to purchase the Senior Notes, the Company has agreed to provide the Investors
with certain rights as set forth in the Original Agreement (as defined below);
WHEREAS, in order to induce Lender to enter into that certain Loan and
Security Agreement to be dated as of March 18, 2002, between Lender and the
Company, the Company agreed to issue to Lender a warrant (the "Lender Warrant")
to purchase a number of shares of Common Stock equal to one percent (1%) of the
Common Stock of the Company (on a fully diluted basis) and to provide certain
registration rights to Lender in connection therewith; and
WHEREAS, as of the date hereof the Investors have agreed to extend the
term of the Senior Notes pursuant to that certain Amendment No. 1 to the Note
Purchase Agreement, dated as of October 21, 2003, and in connection therewith
the parties desire to make certain changes to the Original Agreement as set
forth in this Agreement, including the removal of Xxxxxxx Xxxxxxxx as a party to
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
AGREEMENT
1. Registration Rights.
1.1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Affiliate" shall mean with respect to a Person, any
other Person that directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, such Person.
Without limiting the foregoing, with respect to ComVest, an "Affiliate" shall
mean the General Partner of ComVest or any Person that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with, the General Partner of ComVest or any partnership in which
the General Partner of ComVest is a general partner.
(b) "Amex" shall mean the American Stock Exchange" or
such other national securities exchange or inter dealer quotation system as the
Common Stock shall be listed or traded.
(c) "Board of Directors" shall mean the Board of
Directors of the Company.
(d) "Closing" shall mean the closing of the transactions
contemplated by the Purchase Agreement.
(e) "Closing of the Extension" shall mean the date that
the Company, ComVest and Medtronic agree in writing upon the person who shall
serve as a member of the Board of Directors, pursuant to Section 5.1(d) of this
Agreement.
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(f) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(g) "Conversion Stock" means (i) the shares of Common
Stock issued or issuable upon conversion of the Subordinated Notes, (ii) the
shares of Common Stock issued or issuable upon conversion of the Senior Notes,
(iii) the Bridge Stock, (iv) the Fee Stock, and (v) the Default Stock.
(h) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(i) "Holder" shall mean any stockholder of the Company or
Person holding Registrable Securities or a security convertible into, or
exchangeable for, Registrable Securities, who is or hereafter becomes a party to
this Agreement or the rightful and permitted assign or successor of such a party
to whom the rights under this Section 1 have been transferred in accordance with
Section 1.10; provided, that, notwithstanding anything to the contrary, (i) Xxxx
shall only be deemed to be a Holder for purposes of Sections 1.3, 1.5, 1.7, 1.8
and 1.12 hereof and (ii) Lender shall only be deemed a Holder for purposes of
Section 1 and Section 6 hereof.
(j) "Xxxx" means Xx. Xxxxxxxx Xxxx, a Major Stockholder
hereunder.
(k) "Xxxx Stock" means up to 832,000 shares of Common
Stock held of record by Xxxxxxxx Xxxx and pledged to Tapir Investments (Bahamas)
Ltd.
(l) "Lender Warrant Stock" means the shares of Common
Stock issued or issuable upon exercise of the Lender Warrant.
(m) "Person" shall mean an individual, partnership,
association, joint venture, corporation, trust or unincorporated organization, a
government or any department, agency or political subdivision thereof or other
entity.
(n) "Registrable Securities" means (i) the Conversion
Stock; (ii) for purposes of Sections 1.3, 1.5, 1.7, 1.8 and 1.12 only, the Xxxx
Stock and the Xxxxxxxx Stock; (iii) the Lender Warrant Stock; and (iv) stock
issued in respect of the Common Stock referred to in (i), (ii) and (iii) as a
result of a stock split, stock dividend, recapitalization or the like, which has
not been sold to the public.
(o) The terms "register," "registered" and "registration"
refers to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
(p) "Registration Expenses" shall mean all expenses,
except as otherwise stated below, incurred by the Company in complying with
Sections 1.3 and 1.6 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders in the event of each registration provided for in
Section 1.3 hereof.
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(q) "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
(r) "Selling Expenses" shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable to the
securities registered or sold by the Holders.
(s) "Stock" means and includes all shares of Common Stock
issued and outstanding at the relevant time plus (i) all shares of Common Stock
that may be issued upon exercise of any options, warrants and other rights of
any kind that are then exercisable, and (ii) all shares of Common Stock that may
be issued upon conversion of (A) any convertible securities, including, without
limitation, preferred stock and debt securities then outstanding, which are by
their terms then convertible into or exchangeable for Common Stock, or (B) any
such convertible securities issuable upon exercise of options, warrants or other
rights that are then exercisable.
1.2. [Reserved].
1.3. Company Registration.
(a) of Registration. If at any time or from time to time
the Company shall determine to register any of its securities, either for its
own account or the account of Holders, other than (i) a registration relating
solely to employee benefit plans; or (ii) a registration relating solely to a
Commission Rule 145 transaction or (iii) the registration required under Section
1.6(a) hereunder, the Company will:
(i) each Holder in writing at least thirty (30)
days prior to filing any registration statement under the Securities Act; and
(ii) subject to paragraph (b) of this Section,
include in such registration (and any related qualification under blue sky laws
or other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests, made within
twenty (20) days after receipt of such written notice from the Company, by any
Holder.
(b) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 1.3(a)(i). In such event the right of any
Holder to registration pursuant to Section 1.3 shall be conditioned upon such
Holder's participation in such underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other Holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 1.3, if the
managing underwriter determines that marketing factors require limitation of the
number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration. In that case, the
Company shall so advise all Holders and any other holders distributing their
securities through such underwriting and the number of securities that may be
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included in the registration and underwriting shall be allocated (i) first up to
that number of shares of Common Stock constituting the Xxxx Stock at such time
up to that dollar amount secured by the pledge of Xxxx Stock at such time (the
"Xxxx Stock Amount"), provided that the managing underwriter determines that
such priority with respect to the Xxxx Stock is compatible with the success of
the offering, (ii) second, to the Company, and (iii) third among all Holders
(other than Xxxx) who are entitled to include and have requested the inclusion
of their Registrable Securities in such offering pursuant to this Section 1.3 on
a pro rata basis in proportion to the respective number of Registrable
Securities so requested to be included by such Holders, in priority to the
inclusion of any other securities that are proposed to be sold in such offering
by any other Persons (other than the Company). If all of the Registrable
Securities requested for inclusion in such registration and underwriting by the
Holders as aforesaid have been so included, the remaining number of securities,
if any, that may be included in the registration and underwriting shall be
allocated among any other holders distributing securities in such offering
(provided that such other holders have contractual rights to participate in such
registration and such rights have been granted pursuant to Section 1.13 of this
Agreement). Anything herein to the contrary notwithstanding, subject to the sale
of Xxxx Stock, as provided in clause (i) above, (x) in no event shall the
aggregate amount of Registrable Securities of the Holders (other than Xxxx)
included in the offering be reduced below forty percent (40%) of the total
amount of securities included in such offering, unless the Holders of sixty-six
and two-thirds percent (66-2/3%) of the Registrable Securities (excluding the
Xxxx Stock) consent in writing to such a reduction and (y) the number of
Registrable Securities (excluding the Xxxx Stock) included in any registration
shall not be reduced unless there are first excluded all other securities (other
than securities to be offered for the account of the Company) proposed to be
included in the registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the managing underwriter.
1.4. [Reserved].
1.5. Expenses of Registration. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders (whether for
a registration requested pursuant to Section 1.3 or any registration requested
pursuant to Section 1.6 for offerings on a continuous basis pursuant to Rule 415
under the Securities Act) shall be borne by the Holders of such securities pro
rata on the basis of the number of shares so registered. All Registration
Expenses incurred in connection with all registrations pursuant to Sections 1.3
shall be borne by the Company.
1.6. Shelf Registration; Registration Procedures. At its expense,
the Company will:
(a) Within ninety (90) days from the date hereof, prepare
and file with the Commission a registration statement on Form S-3, or if such
form is not available, Form S-1 (the "Registration Statement"), to enable the
resale of the Registrable Securities by the Holders thereof from time to time
and use its best efforts to cause such Registration Statement to be declared
effective as promptly as possible after filing, but in any event no later than
the date occurring one hundred and eighty (180) days from the date hereof and to
remain continuously effective until such time as all Registrable Securities have
been sold thereunder or pursuant to Rule 144 under the Securities Act (the
"Registration Period");
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(b) Furnish to the Holders with respect to the
Registrable Securities registered under the Registration Statement such
reasonable numbers of copies of the Registration Statement, preliminary
prospectus and final prospectus in conformity with the requirements of the
Securities Act, any amendments or supplements thereto, and such other documents
as the Holders may reasonably request in order to facilitate the public sale or
other disposition of all or any of the Registrable Securities by the Holders;
(c) Prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary to
keep the Registration Statement effective at all times until the end of the
Registration Period;
(d) Register and qualify the securities covered by the
Registration Statement under such other securities, or "Blue Sky," laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions;
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
(f) Permit a single firm of legal counsel ("Legal
Counsel") designated by the Holders to review the Registration Statement and all
amendments and supplements thereto a reasonable period of time prior to their
filing with the Commission;
(g) Promptly after a Registration Statement covering
Registrable Securities is ordered effective by the Commission, the Company shall
deliver, or shall cause its legal counsel to deliver, to the transfer agent for
such Registrable Securities (with copies to the Holders) confirmation that such
Registration Statement has been declared effective by the SEC;
(h) Notify each Holder of Registrable Securities covered
by the Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and at the request of any Holder promptly prepare and furnish to such
seller and each underwriter, if any, a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing;
(i) Obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement at the earliest possible moment;
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(j) File in a timely manner any reports required to be
filed by the Company under the Securities Act, the Exchange Act and the
securities laws of any jurisdiction in which the Registrable Securities were
sold;
(k) Cause all Registrable Securities covered by such
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
(l) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities;
(m) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed; and
(n) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.7. Indemnification.
(a) The Company will indemnify each Holder, each of its
officers and directors, partners and members, and each person controlling such
person within the meaning of Section 15 of the Securities Act, with respect to
which registration, qualification or compliance has been effected pursuant to
this Section 1, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Company of the Securities Act or any
rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such
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registration, qualification or compliance, and the Company will reimburse each
such Holder, each of its officers and directors, and each person controlling
such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action as such expenses are incurred; provided that the
Company will not be liable to any such person in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission (or alleged untrue statement or
omission), made in reliance upon and in conformity with written information
furnished to the Company in an instrument duly executed by such Holder,
controlling person or underwriter and stated to be specifically for use therein
or the preparation thereof.
(b) Each Holder will, if Registrable Securities held by
such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, severally but not jointly,
indemnify the Company, each of its directors and officers, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, such Holders, such directors, officers, persons,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company in an instrument
duly executed by such Holder and stated to be specifically for use therein or
the preparation thereof; provided, however, that the indemnity agreement
contained in this subsection 1.7(b) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if such
settlement is effected without the consent of the Holder. Notwithstanding the
foregoing, the liability of each Holder under this subsection (b) shall be
limited to an amount equal to the net proceeds received by such Holder from the
sale of Registrable Securities held by such Holder in such registration.
(c) Each party entitled to indemnification under this
Section 1.7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 1.7 unless the failure
to give such notice is materially prejudicial to an Indemnifying Party's ability
to defend such action and provided
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further, that the Indemnifying Party shall not assume the defense for matters as
to which there is a conflict of interest or separate and different defenses. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party a
release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section
1.7 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages, or liabilities
referred to therein, the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, expense or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the
violation(s) that resulted in such loss, claim, damage, expense or liability, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by a court
of law by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact related to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, that in no event
shall any contribution by a Holder hereunder exceed the net proceeds from the
offering received by such Holder.
The obligations of the Company and Holders under this Section 1.7 shall survive
completion of any offering of Registrable Securities in a registration statement
and the termination of this Agreement. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
1.8. Information by Holder. The Holders of securities included in
any registration shall furnish to the Company such information regarding such
Holders, the Registrable Securities held by them and the distribution proposed
by such Holders as the Company may request in writing and as shall be required
in connection with any registration, qualification or compliance referred to in
this Section 1.
1.9. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration the Company agrees to use its best efforts to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times during which the Company is required to comply with the reporting
requirements of the Securities Act or the Exchange Act;
(b) take such action as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities;
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(c) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(d) so long as a Holder owns any Registrable Securities
to furnish to such Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
and of the Securities Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as such Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing such Holder to sell any such securities
without registration.
1.10. Transfer of Registration Rights. Subject to Section 6.1
hereof, the rights to cause the Company to register securities granted to a
Holder under Section 1.3 may be assigned to a transferee or assignee in
connection with any transfer or assignment of Registrable Securities by such
Holder, provided that the transferor provides the Company with written notice of
the proposed transfer and: (i) the transferee is a partner, member, former
partner or member, stockholder or Affiliate of the Holder; (ii) the transferee
is a Holder's sibling, mother, father or child or a trust for the benefit of a
Holder; or (iii) the transferee is a foundation or other charitable organization
associated with Medtronic.
1.11. Standoff Agreements. (a) The Major Stockholder agrees, until
the date which is five (5) business days after the Registration Statement has
been declared effective, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any shares of Common Stock
or any other securities of the Company or enter into any agreement with respect
to the foregoing (collectively, a "Sale"); provided, that such agreements shall
not apply to (a) shares of Common Stock purchased after the date hereof by the
Major Stockholder in the public market or in a registered offering, and (b) with
respect to Xxxx, up to the Xxxx Stock Amount which may be sold by Xxxx, pursuant
to an underwritten public offering of Common Stock with a reputable national or
regional investment bank.
(b) The Major Stockholder further agrees after the date
any registration statement is declared effective with respect to an underwritten
public offering of the Company's equity securities, not to engage in any Sale
for such period of time as to which the Holders agree to the same restriction;
provided that Xxxx may engage in a Sale of the Xxxx Stock.
1.12. Termination. Any registration rights granted pursuant to this
Section 1 shall terminate (if not already terminated as provided herein) and the
Company shall have no obligations pursuant to Sections 1.3 with respect to any
Registrable Securities proposed to be sold by a Holder in a registration
pursuant to Section 1.3 if, in the opinion of counsel to the Company, all
Registrable Securities held by a Holder (and any affiliate of the Holder with
whom such Holder must aggregate its sales under Rule 144) may be sold in a
three-month period without registration under the Securities Act pursuant to
Rule 144.
1.13. Other Registration Rights. The Company shall not, without the
prior written consent of Holders of sixty-six and two-thirds percent (66-2/3%)
of the Registrable Securities
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then outstanding grant any registration rights superior to or on a parity with
the rights granted pursuant to this Section 1 other than the registration rights
previously granted by the Company to Tapir Investments (Bahamas) Ltd. pursuant
to the Rights Agreement dated as of April 9, 1998, as in effect on the date
hereof.
2. Holders' Right of First Refusal Upon Issuance of Securities by the
Company.
2.1. Right of First Refusal. The Company hereby grants to each
Holder or any of their transferees pursuant to Section 2.1(f) hereof
(collectively, hereinafter, the "Rights Holders") the right of first refusal to
purchase all or part of its pro rata share of New Securities (as defined in this
Section 2.1) which the Company may, from time to time, propose to sell and
issue. For purposes of this right of first refusal, a pro rata share for a
Rights Holder is the number of New Securities to be issued multiplied by the
ratio that the number of shares of Stock then held by or issuable to (assuming
full conversion and exercise of the Subordinated Notes and the Senior Notes,
respectively) such Rights Holder bears to the sum of the total number of shares
of Stock then outstanding (assuming full conversion and exercise of the
Subordinated Notes and the Senior Notes, respectively).
(a) Except as set forth below, "New Securities" shall
mean any Equity Securities (as defined below), whether now authorized or not.
"Equity Securities" shall mean any securities having voting rights in the
election of the Board of Directors not contingent upon default, or any
securities evidencing an ownership interest in the Company, or any securities
convertible into or exercisable for any shares of the foregoing, or any
securities issuable pursuant to any agreement or commitment to issue any of the
foregoing. Notwithstanding the foregoing, "New Securities" does not include (i)
the Conversion Stock; (ii) stock issued in connection with any stock split,
stock dividend or recapitalization by the Company, (iii) shares of Common Stock
issued to officers, directors, employees or consultants of the Company pursuant
to stock grants, stock purchase and stock option plans or other stock incentive
programs, agreements or arrangements approved by the Board of Directors unless
such shares constitute greater than 10% of the Company's outstanding Common
Stock at the time of issuance, (iv) shares of Common Stock or preferred stock of
the Company issued or issuable upon conversion, exercise or exchange of
currently outstanding warrants, or (v) securities issued pursuant to the
acquisition of all or part of another company by the Company by merger or other
reorganization, or by purchase or all or part of the assets of another company,
pursuant to a plan or arrangement approved by the Board of Directors.
(b) In the event the Company proposes to undertake an
issuance of New Securities, it shall give each Rights Holder written notice of
its intention, describing the type of New Securities, and the price and terms
upon which the Company proposes to issue the same. Each Rights Holder shall have
twenty (20) days from the date of receipt of any such notice to agree to
purchase up to its respective pro rata share of such New Securities for the
price and upon the applicable terms specified in the notice by giving written
notice to the Company and stating therein the quantity of New Securities to be
purchased.
(c) If not all of the Rights Holders elect to purchase
their pro rata share of the New Securities, then the Company shall promptly
notify in writing the Rights Holders who do so elect and shall offer such Rights
Holders the right to acquire such unsubscribed shares. The
11
Rights Holders shall have five (5) business days after receipt of such notice to
notify the Company of their election to purchase all or a portion of the
unsubscribed shares.
(d) In the event a Rights Holder fails to exercise the
right of first refusal within said twenty (20) day period, the Company shall
have ninety (90) days thereafter to sell or enter into an agreement (pursuant to
which the sale of New Securities covered thereby shall be closed, if at all,
within fifteen (15) days from the date of said agreement) to sell the New
Securities not elected to be purchased by Rights Holders at the price and upon
the terms no more favorable to the purchasers of such securities than specified
in the Company's notice. In the event the Company has not sold the New
Securities within said ninety (90) day period (or sold and issued New Securities
in accordance with the foregoing within fifteen (15) days from the date of said
agreement), the Company shall not thereafter issue or sell any New Securities,
without first offering such securities in the manner provided above.
(e) The right of first refusal granted under this Section
2.1 shall expire upon the closing of a statutory share exchange, consolidation
or merger of this Company with or into any other corporation or corporations
(other than a wholly-owned subsidiary), or the sale, transfer or other
disposition of all or substantially all of the assets of this Company.
(f) The right of first refusal hereunder may be assigned
to a transferee or assignee (other than a competitor as reasonably determined by
the Company in good faith) in connection with any transfer or assignment of
Registrable Securities, provided that the transferor provides the Company with
written notice of the proposed transfer and (i) the transferee is a partner (or
former partner), member (or former member), stockholder or Affiliate of the
Holder, (ii) the transferee is a Holder's sibling, mother, father or child or a
trust for the benefit of a Holder, or (iii) the transferee is a foundation or
other charitable organization associated with Medtronic.
3. Limitations on Transfers.
3.1. Right of First Refusal on Sales.
(a) Sales to Third Parties. If at any time the Major
Stockholder (the "Offeror") desires to sell, transfer, hypothecate, pledge,
assign or otherwise dispose of all or any part of his shares pursuant to a bona
fide offer from a third party (the "Proposed Transferee"), the Offeror shall
submit a written offer (the "Offer") to sell such shares (the "Offered Shares")
to the Holders on terms and conditions, including price (the "Offered Price"),
not less favorable to the Holders than those on which the Offeror proposes to
sell such Offered Shares to the Proposed Transferee. The Offer shall disclose
the identity of the Proposed Transferee, the Offered Shares proposed to be sold,
the total number of shares owned by the Offeror, the terms and conditions,
including the Offered Price and any other material facts relating to the
proposed sale and shall include a copy of any written proposal, term sheet or
other agreement relating to the proposed transfer. The Offer shall further state
that the Holders may acquire, in accordance with the provisions of this
Agreement, the Offered Shares for the Offered Price and upon the other terms and
conditions, including deferred payment (if applicable), set forth therein. For
the purposes of Section 3.1, the Offered Shares shall not include the Xxxx
Stock.
(b) Holders' Right of First Refusal.
12
(i) Offered Shares may be purchased by the
Holders as set forth below. Each Holder shall have the opportunity to purchase
its pro rata share of the Offered Shares. For purposes of this Section 3 only, a
Holder's pro rata share shall be determined by multiplying the number of Offered
Shares by a ratio calculated by dividing the number of shares of Stock held by
or issuable to (assuming full conversion of the Subordinated Notes and the
Senior Notes, respectively) such Holder by the total number of shares of Stock
held by all Holders (assuming full conversion of the Subordinated Notes and the
Senior Notes, respectively). (The amount of Offered Shares that each Holder is
entitled to purchase under this Section 3.1(b) shall be referred to as its "Pro
Rata Fraction"). If any Holder, or their respective assignees, desire to
purchase any of the Offered Shares, such Holder must, within a fifteen (15) day
period (the "Holder Refusal Period") following receipt of the Offer, give
written notice ("Holder Notice") to the Offeror and to the Company of such
party's election to purchase its Pro Rata Fraction of the Offered Shares. A
failure by a Holder to exercise its Right of First Refusal within the Holder
Refusal Period shall be deemed a waiver of such right with respect to that
particular Offer only. In the event that a Holder does not wish to purchase such
Holder's Pro Rata Fraction, then the Offeror shall notify all Holders who
elected to purchase their full pro rata share of the number of shares not so
purchased, and any Holder who has elected to purchase its full Pro Rata Fraction
shall have the right to purchase, on a pro rata basis with any other Holder who
so elects, any Offered Share not purchased by providing notice to the Offeror
within seven (7) days of receipt of such notice (the "Second Holder Refusal
Period").
(c) Closing on Offered Shares. Sales of the Offered
Shares to be sold to the Holders pursuant to this Section 3 shall be made at the
offices of the Company on the 45th day following the date the Offer was made (or
if such 45th day is not a business day, then on the next succeeding business
day). Such sales shall be effected by the Offeror's delivery to the Holder of a
certificate or certificates evidencing the Offered Shares to be purchased by it,
duly endorsed for transfer to such Holder, against payment to the Offeror of the
Offered Price therefor by such Holder. If the Offered Price includes
consideration other than cash, the cash equivalent value of the non-cash
consideration will be determined by an independent third party appraiser
selected by the Board of Directors of the Company, which determination will be
binding upon the parties absent fraud or error.
(d) Sales to Proposed Transferee. If the Holders do not
purchase all of the Offered Shares, the Offered Shares not so purchased may be
sold by the Offeror at any time within ninety (90) days after the date the Offer
was made, subject to the provisions of Sections 3.2 and 3.3 below. Any such sale
shall, subject to Sections 3.2 and 3.3, be to the Proposed Transferee, at not
less than the Offered Price and upon other terms and conditions, if any, not
more favorable to the Proposed Transferee than those specified in the Offer. Any
Offered Shares not sold within such 90-day period shall once again be subject to
the requirements of a prior offer pursuant to this Section 3.1.
3.2. Prohibited and Permitted Transfers.
(a) Prohibited Transfers. The Major Stockholder may not
sell, assign, transfer, grant an option to or for, pledge, hypothecate,
mortgage, encumber or dispose of (in each case, a "Transfer") all or any of his
shares except as expressly provided in this Agreement and except as provided
pursuant to the Note Purchase Agreement.
13
(b) Legends. The Company shall affix to each certificate
evidencing shares of Common Stock issued to Holders a legend in substantially
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED OR AN EXEMPTION THEREFROM AND, IN
EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET
FORTH IN A SECURITYHOLDERS' AGREEMENT DATED AS OF
MARCH 16, 2002 AND AMENDED AND RESTATED AS OF OCTOBER
21, 2003, AS IT MAY BE AMENDED FROM TIME TO TIME, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE ISSUER. NO REGISTRATION OR TRANSFER OF
THESE SHARES WILL BE MADE ON THE BOOKS OF THE ISSUER
UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN
COMPLIED WITH."
In the event a Holder shall transfer any shares of Common Stock to any Person in
accordance with this Agreement, such securities shall nonetheless bear legends
as provided above; provided, however, that the provisions of this Section shall
not apply in respect of sales of shares included in registered public offerings
under the Securities Act or a sale of shares of Common Stock pursuant to Rule
144 under the Securities Act.
(c) Permitted Transfers. Notwithstanding the foregoing,
the Major Stockholder may effect a Permitted Transfer. For purposes of this
Agreement, "Permitted Transfer" means any transfer by the Major Stockholder (i)
of such party's shares to or for the benefit of any parent, sibling, spouse,
child or grandchild of the Major Stockholder, or to a trust for the benefit of
any of the foregoing, (ii) by will or the laws of descent and distribution to
any of the persons listed in Section 3.3(i) (any person referred to in clause
(i) or (ii) of this paragraph is defined as a "Permitted Transferee"), (iii) any
transfer in connection with the merger or consolidation of the Company with or
into any other corporation or other entity or person (an "Acquisition") or the
sale of all or substantially all of the outstanding shares of capital stock of
the Company to a third party provided that such Acquisition or sale of shares
has been approved by the Board and/or shareholders as required by the
Certificate of Incorporation, (iv) sales pursuant to Rule 144 of the Securities
Act, or (v) of the Xxxx Stock as provided in this Agreement.
14
As used herein, the term "Major Stockholder" is deemed to include any Permitted
Transferees of the Major Stockholder, except as expressly provided otherwise,
and any Permitted Transferee shall agree to be bound by this Agreement.
3.3. No Agreements. The Major Stockholder shall not grant any
irrevocable proxy or any other proxy inconsistent with this agreement or enter
into or agree to be bound by any voting trust with respect to any shares of
Common Stock, nor shall the Major Stockholder enter into any stockholder
agreements or arrangements of any kind with any person with respect to any
shares of Common Stock (whether or not such agreements and arrangements are with
other holders of Common Stock who are not parties to this Agreement), including
agreements or arrangements with respect to the acquisition, disposition or
voting (if applicable) of any shares of Common Stock, except as expressly
provided in this Agreement, nor shall the Major Stockholder act, for any reason,
as a member of a group or in concert with any other persons in connection with
the acquisition, disposition or voting (if applicable) of any shares of Common
Stock, except to the extent consistent with this Agreement.
4. Intentionally Omitted.
5. Board of Directors; Voting of Capital Stock; Certain Other Matters.
5.1. Board of Directors. Immediately following the Closing of the
Extension and until such time as the principal amount of all Subordinated Notes,
together with all interest thereon, has been paid in full and ComVest has sold
more than 50% of the Common Stock issuable upon the conversion of the
Subordinated Notes purchased by ComVest pursuant to the Note Purchase Agreement,
the parties hereto shall take all action within their respective power,
including the voting of Common Stock, required to cause the Board of Directors
to consist of seven (7) directors as follows:
(a) Designees of ComVest. ComVest shall designate two (2)
directors of the Company;
(b) ComVest Independent Director. ComVest shall designate
one (1) additional director of the Company who shall be an "independent
director" in accordance with the requirements of the Amex.
(c) Medtronic Independent Director. Medtronic shall
designate one (1) additional director of the Company who shall be an
"independent director" in accordance with the requirements of the Amex.
(d) Additional Independent Director. ComVest and
Medtronic shall jointly designate one addition director of the Company who shall
be an "independent director" in accordance with the requirements of the Amex,
and who shall have experience in the Company's industry; provided that such
designation shall be approved by the Board of Directors of the Company, which
approval may not be unreasonably withheld or delayed.
(e) Management Representation. The Board of Directors of
the Company shall designate two (2) members of senior management as directors of
the Company.
15
(f) Medtronic Observer. Medtronic shall designate one (1)
person who shall be an observer on the Board of Directors with no voting rights.
As of the date of this Agreement the ComVest designees pursuant to
Section 5.1(a) shall be Xxxxxx Blue, a current member of the Board of Directors
and Xxxxxx Xxxxxx who shall be elected to the Board effective upon the Closing
of the Extension.
As of the date of this Agreement the ComVest designee pursuant to
Section 5.1(b) and the Medtronic designee pursuant to Section 5.1(c) shall be
Xxxxx X. Brands and Xxxxxx X. Xxxxxx, respectively.
As of the date of this Agreement the Company designees pursuant to
Section 5.1 (c) shall be Xxxxxxxx Xxxx a current member of the Board of
Directors and Xxxxxx X. Xxxxxx who shall be elected to the Board of Directors
effective upon the Closing of the Extension.
To effect the implementation of this Section upon the execution of this
Agreement, Messrs. H. Xxxx Xxxxxx, A. Xxxxxx Xxxxxxxx, and Xxxxxxx X. Xxxxxxxx,
Xx. shall deliver to the Company letters of resignation dated effective as of
the Closing of the Extension.
5.2. Removal. If a director designated and elected pursuant to
Section 5.1 hereof has been designated by ComVest or Medtronic and ComVest or
Medtronic requests that such director be removed (with or without cause) by
written notice thereof to the other Holders, the Company and the Major
Stockholder, then such director shall be removed, with or without cause, upon
the affirmative vote of holders of a majority of the outstanding shares of
Common Stock, and each party hereto hereby agrees to vote all shares of Common
Stock owned or held of record by such holder to effect such removal upon such
request.
5.3. Vacancies. In the event that a vacancy is created on the Board
of Directors at any time by the death, disability, retirement, resignation,
removal (with or without cause) of a director or otherwise, or if for any reason
there shall exist or occur any vacancy on the Board of Directors, each Company
Stockholder hereby agrees to cause the director(s) designated by such Company
Stockholder to, subject to such director's applicable fiduciary duties, vote for
that individual designated to fill such vacancy and serve as a director by
whichever of the Company Stockholders that had designated (pursuant to Section
5.1 hereof) the director whose death, disability, retirement, resignation or
removal (with or without cause) resulted in such vacancy on the Board of
Directors (in the manner set forth in Section 5.1); provided, however, that such
other individual so designated may not previously have been a director of the
Company who was removed for cause from its Board of Directors.
5.4. Intentionally Omitted.
5.5. Covenant to Vote. During the period that ComVest and Medtronic
retain the appointment rights under Section 5.1 hereof, each Company Stockholder
hereby agrees to take all actions necessary to call, or to cause the Company and
the appropriate officers and directors of the Company to call, a special or
annual meeting of stockholders of the Company and to vote all shares of voting
stock of the Company owned or held of record by such Company Stockholder at any
such annual or special meeting in favor of, or take all action by written
consent in lieu of any such meeting necessary to ensure that the number of
directors constituting
16
the entire Board of Directors is consistent with, and that the election as
members of the Board of Directors of those individuals so designated is in
accordance with, and to otherwise effect the intent of, this Section 5.
Notwithstanding the foregoing, at any such annual or special meeting Xxxx shall
only be required to vote his shares of Common Stock in favor of one of the
designees pursuant to Section 5.1(a), the designee pursuant to Section 5.1(b)
and the designee pursuant to Section 5.1(c), as he was originally obligated to
do under the Original Agreement and he shall not specifically be required to
vote his shares of Common Stock in favor of any of the other designees pursuant
to Section 5.1 of this Agreement.
5.6. Events of Default. Until such time as the entire principal
amount of all Subordinated Notes, together with all interest thereon, has been
paid in full, if (a) the Company or any Major Stockholder fails to comply in any
material respect with any covenants or agreements contained herein and fails to
cure such breach within ten (10) days after written notice thereof, (b) there
shall occur an "Event of Default" with respect to the Purchase Agreement as such
term is defined in the Purchase Agreement or (c) there shall occur an "Event of
Default" under any agreement governing the Senior Indebtedness (as defined in
the Purchase Agreement) as such term shall be defined in such agreement then,
without limiting any of the foregoing rights, remedies and powers, and in
addition thereto, ComVest shall have the right to immediately elect such
additional number of Persons designated by it to the Board of Directors of the
Company, such that, when such number of additional Persons so designated is
combined with the number of Persons theretofore elected to the Board of
Directors of the Company as designees of the Investors pursuant to Section
5.1(a), Persons designated by the Investors and serving as members of the Board
of Directors of the Company shall comprise a majority of the entire Board of
Directors of the Company.
6. Miscellaneous.
6.1. Assignment.
(a) The rights of the Company or any Holder other than
the Investors under this Agreement may be assigned only to (i) a stockholder,
partner, former partner, member, former member or beneficiary of a Holder, (ii)
a spouse, child, parent or beneficiary of the estate of a Holder; (iii) to an
affiliate (as defined for purposes of Rule 144 of the Securities Act) of the
Holder; or (iv) a trust for the benefit of the persons set forth in (i) or (ii);
provided, however, that no party may be assigned any of the foregoing rights
unless the Company is given written notice by the assigning party at the time of
such assignment stating the name, address and tax identification number of the
assignee and identifying the securities of the Company as to which the rights in
question are being assigned; and provided further that any such assignee shall
receive such assigned rights subject to all the terms and conditions of this
Agreement, including without limitation the provisions of this Section 6.1.
Notwithstanding anything contained in this Agreement to the contrary, (A) any
rights to cause the Company to register securities and any preemptive rights and
rights of first refusal to purchase certain new securities proposed to be sold
by the Company or other shareholders may be transferred or assigned by ComVest
(together with any affiliates, a "ComVest Entity"), or any relevant ComVest
Entity to another ComVest Entity, provided that (a) the Company is given written
notice at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of such transferee or assignee and
identifying the specific rights being transferred or assigned and (b) such
transferee or assignee
17
assumes the obligations of the ComVest Entity and agrees to be bound, hereunder
and (B) any rights to cause the Company to register securities and any
preemptive rights and rights of first refusal to purchase certain new securities
proposed to be sold by the Company or other shareholders may be transferred or
assigned by Medtronic (together with any affiliates, a "Medtronic Entity"), or
any relevant Medtronic Entity to another Medtronic Entity, provided that (a) the
Company is given written notice at the time of or within a reasonable time after
said transfer or assignment, stating the name and address of such transferee or
assignee and identifying the specific rights being transferred or assigned and
(b) such transferee or assignee assumes the obligations of the Medtronic Entity
and agrees to be bound, hereunder.
6.2. Survival. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
6.3. Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
6.4. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia without giving
effect to its principles regarding conflicts of laws. The Company and each of
the Company Stockholders irrevocably consents to the non-exclusive personal
jurisdiction of the federal and state courts located in New York County, New
York, as applicable, for any matter arising out of or relating to this
Agreement. 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.
6.5. Determination of Share Amounts. To determine the number of
Registrable Securities held by a Holder for purposes of this Agreement, all
Registrable Securities held by an Affiliate of the Holder shall be deemed held
by such Holder.
6.6. Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein. With the written consent of the record or
beneficial holders of at least eighty percent (80%) of the Registrable
Securities held by the Holders, the obligations of the Company and the Major
Stockholder under this Agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
otherwise amending or restating this Agreement in any respect.
6.7. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally, via
facsimile with confirmation of transmission, mailed by first class mail, postage
prepaid, or delivered by courier or overnight delivery, (a) if to a Company
Stockholder, at such party's address or facsimile number as set
18
forth on Schedule I attached hereto, or at such other address or facsimile
number as such party shall have furnished to the Company in writing, (b) if to
the Company, at Horizon Medical Products, Inc., Seven North Parkway Square, 0000
Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 or such address as the Company shall
have furnished to the Company Stockholder in writing or if by facsimile to (404)
264-2611 or (c) if to Lender, at Lender's address or Lender's address set forth
on Schedule IA attached hereto, or at such other address or facsimile number as
Lender shall have furnished Company in writing. Notices that are mailed shall be
deemed received five (5) days after deposit in the United States mail. Notices
that are sent via facsimile shall be deemed received upon receipt of
confirmation of transmission.
6.8. Delays or Omissions. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any holder
of any shares, upon any breach or default of the Company under this Agreement,
shall impair any such right, power or remedy of such holder nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any holder
of any provisions or conditions of this agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
6.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.10. Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable the remainder of this Agreement and application of such provision
to persons or circumstances shall be interpreted so as best to reasonably effect
the intent of the parties hereto, the parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision which will achieve to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
6.11. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
6.12. Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Investors 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 the Company or the Major Stockholders set forth herein. Therefore, it is
agreed that, in addition to any other remedies that may be available to Investor
upon any such violation, the Investors shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by any
other means available to the Investors at law or in equity without any
requirement of the posting of a bond or other security.
6.13. Attorneys' Fees. The Company shall reimburse ComVest for its
actual out-of-pocket legal expenses incurred in connection with the negotiations
and execution of this
19
Agreement and the extension of the Senior Notes as provided in Section 16.2 of
the Note Purchase Agreement (which expenses have been approximately $40,000). If
any action at law or in equity (including arbitration) is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this
Securityholders' Agreement as of the date set forth in the first paragraph
hereof.
COMPANY:
HORIZON MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxxx Xxxx
Title: Chief Executive Officer
20
COMVEST COUNTERPART SIGNATURE PAGE TO
SECURITYHOLDERS' AGREEMENT
COMVEST VENTURE PARTNERS, L.P.
By ComVest Capital Management LLC,
its General Partner
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO SECURITYHOLDERS' AGREEMENT]
21
MEDTRONIC COUNTERPART SIGNATURE PAGE TO
SECURITYHOLDERS' AGREEMENT
MEDTRONIC, INC.
Medtronic, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Development Officer
[SIGNATURE PAGE TO SECURITYHOLDERS' AGREEMENT]
22
MAJOR STOCKHOLDER COUNTERPART SIGNATURE PAGE TO
SECURITYHOLDERS' AGREEMENT
MAJOR STOCKHOLDER:
/s/ Xxxxxxxx Xxxx
-----------------------------------
Xxxxxxxx Xxxx
23
