NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER...Diomed Holdings Inc • October 1st, 2007 • Surgical & medical instruments & apparatus • New York
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN INTERCREDITOR AGREEMENT (AS THE SAME MAY BE AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME PURSUANT TO THE TERMS THEREOF, THE “INTERCREDITOR AGREEMENT”), DATED AS OF SEPTEMBER 28, 2007, AMONG HERCULES TECHNOLOGY GROWTH CAPITAL, INC. (THE “LENDER”) AND EACH OF IROQUOIS CAPITAL LP, CRANSHIRE CAPITAL, L.P., PORTSIDE GROWTH AND OPPORTUNITY FUND AND ROCKMORE INVESTMENT MASTER FUND LTD (THE “SUBORDINATED CREDITORS”). EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR AGREEMENT APPLICABLE TO A “SUBORDINATED CREDITOR” (AS SUCH TERM IS DEFINED IN THE INTERCREDITOR AGREEMENT), AS IF SUCH HOLDER WERE AN ORIGINAL SIGNATORY THERETO AS A SUBORDINATED CREDITOR FOR ALL PURPOSES OF THE INTERCREDITOR AGREEMENT.
ContractDiomed Holdings Inc • October 1st, 2007 • Surgical & medical instruments & apparatus • New York
This Guaranty and the rights, remedies, representations and obligations of the parties hereto are subject to the terms and conditions of that certain Intercreditor Agreement between Hercules Technology Growth Capital, Inc. and each of Iroquois Capital LP, Cranshire Capital, L.P., Portside Growth and Opportunity Fund and Rockmore Investment Master Fund Ltd. dated as of September 28, 2007.
ContractPledge and Security Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • New York
This Pledge and Security Agreement and the rights, remedies, representations and obligations of the parties hereto are subject to the terms and conditions of that certain Intercreditor Agreement between Hercules Technology Growth Capital, Inc. and each of Iroquois Capital LP, Cranshire Capital, L.P., Portside Growth and Opportunity Fund and Rockmore Investment Master Fund Ltd dated as of September 28, 2007.
PREFERRED STOCKHOLDER AGREEMENT AND CONSENTAgreement and Consent • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus
This Agreement and Consent is made as of the 28th day of September, 2007, between Diomed Holdings, Inc. (the “Company”), a Delaware corporation, and the undersigned (the “Holder”), who is the registered holder of shares of Series 2006 Preferred Stock (the “Preferred Stock) issued by the Company pursuant to the Securities Purchase Agreement, dated as of July 27, 2006, between the Company and the Purchasers of Preferred Stock named therein (the “2006 Purchase Agreement”). Capitalized terms used below with definition shall have the respective meanings given them in the Company’s Certificate of Incorporation, as amended through the date hereof (as so amended, the “Certificate of Incorporation”).
INTERCREDITOR AGREEMENTIntercreditor Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • California
THIS INTERCREDITOR AGREEMENT (this “Agreement”), dated as of September 28, 2007, (the “Effective Date”), by and between Hercules Technology Growth Capital, Inc. (“Senior Creditor”) and each of Iroquois Capital LP, Cranshire Capital, L.P., Portside Growth and Opportunity Fund and Rockmore Investment Master Fund Ltd. (together, the “Subordinated Creditor”). Capitalized terms used but not otherwise defined herein shall have the meanings given them in Section 1 below.
PATENT SECURITY AGREEMENTPatent Security Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • California
This Agreement is dated the 28th day of September, 2007, among Diomed Holdings, Inc., a Delaware corporation, Diomed, Inc., a Delaware corporation, each with its chief executive office and principal place of business located at One Dundee Park, Andover, Massachusetts 01810, (each, a “Grantor” and collectively, the “Grantors” ), and Hercules Technology Growth Capital, Inc., a Maryland corporation, with its chief executive office and principal place of business located at 400 Hamilton Avenue, Suite 310, Palo Alto, California 94301 (“Secured Party”).
TRADEMARK SECURITY AGREEMENTTrademark Security Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • California
This Agreement is dated the 28th day of September, 2007, among Diomed Holdings, Inc., a Delaware corporation, Diomed, Inc., a Delaware corporation, each with its chief executive office and principal place of business located at One Dundee Park, Andover, Massachusetts 01810, (each, a “Grantor” and collectively, the “Grantors” ), and Hercules Technology Growth Capital, Inc., a Maryland corporation, with its chief executive office and principal place of business located at 400 Hamilton Avenue, Suite 310, Palo Alto, California 94301 (“Secured Party”).
STOCK PLEDGE AGREEMENTStock Pledge Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • California
THIS STOCK PLEDGE AGREEMENT (“Pledge Agreement”) is made this 28th day of September, 2007 by DIOMED HOLDINGS, INC. and DIOMED, INC., each a Delaware corporation (each a “Pledgor” and together, the “Pledgors”), in favor of HERCULES TECHNOLOGY GROWTH CAPITAL, INC. (“Pledgee”).
ContractGuarantor Pledge and Security Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • New York
This Guarantor Pledge and Security Agreement and the rights, remedies, representations and obligations of the parties hereto are subject to the terms and conditions of that certain Intercreditor Agreement between Hercules Technology Growth Capital, Inc. and each of Iroquois Capital LP, Cranshire Capital, L.P., Portside Growth and Opportunity Fund and Rockmore Investment Master Fund Ltd dated as of September 28, 2007.
ContractWarrant Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • California
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933 ACT AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.
COLLATERAL GRANT OF SECURITY INTEREST IN COPYRIGHTSDiomed Holdings Inc • October 1st, 2007 • Surgical & medical instruments & apparatus • California
This Collateral Grant of Security Interest in Copyrights (this “Agreement”) is made as of this 28th day of September, 2007, by each of Diomed Holdings, Inc., a Delaware corporation, and Diomed, Inc., a Delaware corporation (each a “Grantor”, and collectively, the “Grantors”), for the benefit of Hercules Technology Growth Capital, Inc., a Maryland corporation (“Grantee”).
LOAN AND SECURITY AGREEMENTLoan and Security Agreement • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus • California
THIS LOAN AND SECURITY AGREEMENT is made and dated as of September 28, 2007 and is entered into by and between DIOMED HOLDINGS, INC., a Delaware corporation (“Holdings”), and DIOMED, INC., a Delaware corporation (“Lead Borrower”), and each of their respective Subsidiaries organized in a jurisdiction of the United States of America (each a “US Subsidiary”) that hereinafter becomes a “Borrower” pursuant to the terms hereof (each an “Additional Borrower”, and Lead Borrower, Holdings and each Additional Borrower hereinafter collectively referred to as the “Borrowers” and, each individually, a “Borrower”), and HERCULES TECHNOLOGY GROWTH CAPITAL, INC., a Maryland corporation (the “Lender”).
DEBENTURE HOLDER AGREEMENT AND CONSENTDebenture Holder Agreement and Consent • October 1st, 2007 • Diomed Holdings Inc • Surgical & medical instruments & apparatus
This Agreement and Consent is made as of the 28th day of September, 2007, between Diomed Holdings, Inc. (the “Company”), a Delaware corporation, and the undersigned (the “Holder”), who is the registered holder of (a) certain Variable Rate Convertible Debentures due October 2008 (the “2004 Debentures”) of the Company, which are convertible into shares of the Company's common stock, par value $0.001 per share (the "Common Stock") (the "Existing Conversion Shares"), and, if applicable, (b) warrants (the “Warrants”) to purchase Common Stock, issued by the Company pursuant to the Securities Purchase Agreement, dated September 28, 2004, between the Company and the Purchasers of 2004 Debentures and Warrants named therein (the “2004 Purchase Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to them in the 2004 Purchase Agreement.
