EXHIBIT 10.1
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 principal
anniversary of the Closing Date amount of the Note
The one year anniversary of the 5% Premium - 105% of the principal
Closing Date through the 15 month amount of the Note
anniversary of the Closing Date
The 15 month anniversary of the 5% Premium - 105% of the principal
Closing Date through March 16, 2004 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/ Xxxxxxxx X. Xxxx
---------------------------------------------
Xxxxxxxx X. Xxxx
Chairman and CEO
PURCHASER
COMVEST VENTURE PARTNERS
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Xxxx Xxxxxxxx
Managing Director
ADDITIONAL NOTE PURCHASERS
MEDTRONIC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Development Officer
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