Exhibit 10.7
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made this 28th day of February, 2002 between
Kyphon Inc., a Delaware corporation (the "Company"), and the undersigned lenders
to the Company (the "Lenders").
Recitals
--------
WHEREAS, the Company and the Lenders are parties to that certain Amended
and Restated Loan Agreement dated November 20, 2001 (the "Loan Agreement");
WHEREAS, the Loan Agreement provides for the issuance of Convertible
Promissory Notes (the "Notes") to the Lenders in connection with each Advance
(as defined in the Loan Agreement);
WHEREAS, Section 9.12 of the Loan Agreement and Section 10 of the Notes
provide that the Loan Agreement and the Notes, respectively, may be amended with
the written consent of the Company and the Lenders holding at least two-thirds
(66 2/3%) of the aggregate principal amount of the Notes outstanding; and
WHEREAS, the Company and the Lenders desire to amend the Loan Agreement and
the Notes in order to (i) increase the total amount the Company may borrow from
the Lenders to $20,000,000, (ii) extend the term of the Lenders' commitment
under the Loan Agreement to June 30, 2002 and (iii) and extend the date for
automatic conversion of the Notes to June 30, 2002.
Agreement
---------
NOW, THEREFORE, the parties hereto agree as follows:
1. That Section 1.3 of the Loan Agreement is hereby amended and restated
to read in its entirety as follows:
"1.3 "Borrowing Base" shall mean $20,000,000."
--------------
2. That Section 2.6 of the Loan Agreement is hereby amended and restated
to read in its entirety as follows:
"2.6 Term of Commitment. The Lenders' commitment to lend under this
------------------
Loan Agreement shall terminate on June 30, 2002."
3. That Section 4.4 of the Loan Agreement is hereby amended and restated
to read in its entirety as follows:
"4.4 Alternative Conversion. In the event that Kyphon has not
----------------------
completed an IPO or the Next Financing by June 30, 2002, the Loans
shall automatically convert thereafter into Preferred Stock at a price
of $3.50 per share."
4. That Section 2(c) of the Notes (including the Notes that are currently
outstanding and the Notes that are issuable in connection with future Advances)
is hereby amended and restated to read in its entirety as follows:
"Alternative Conversion. In the event that the Company has not
----------------------
completed an IPO or the Next Financing by June 30, 2002, the principal
of and interest accrued on this Note shall automatically convert on
such date into shares of Preferred Stock (as defined in the Loan
Agreement), par value $0.001 per share, at a price of $3.50 per
share."
(The remainder of this page is intentionally left blank.)
-2-
IN WITNESS WHEREOF, this Amendment Agreement has been executed as of
the date first above written.
"COMPANY"
KYPHON INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Chief Financial Officer
Kyphon Inc. Amendment Agreement Signature Page
"LENDERS"
WARBURG, XXXXXX VENTURES, L.P.
By: Warburg, Xxxxxx & Co.
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Partner
---------------------------------
Kyphon Inc. Amendment Agreement Signature Page
INVESTOR GROWTH CAPITAL
LIMITED
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Title: A-director
---------------------------------
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Title: B-director
---------------------------------
INVESTOR GROUP, L.P.
By: Investor Group G.P. Limited
------------------------------------
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Title: A-director
---------------------------------
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Title: B-director
---------------------------------
Kyphon Inc. Amendment Agreement Signature Page
VERTICAL LIFE SCIENCES, L.P.
By: Vertical Group, L.P.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx
General Partner
Kyphon Inc. Amendment Agreement Signature Page
J & A GROUP, LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Managing Director and President
Kyphon Inc. Amendment Agreement Signature Page
