EXHIBIT 10.5
AMENDMENT NO. 4 TO NOTE PURCHASE
AGREEMENT
This Amendment No. 4 to Note
Purchase Agreement (this “Amendment”), dated as of May
12, 2004, amends that certain Note Purchase Agreement, dated as of
March 1, 2002, 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 therein), as amended by Amendment No. 1 to
Note Purchase Agreement, dated as of June 10, 2002, Amendment No. 2
to Note Purchase Agreement, dated as of July 29, 2002, and
Amendment No. 1 to Note Purchase Agreement dated as of October 21,
2003 (as amended, the “Note Purchase Agreement”).
Capitalized terms used in this Amendment but not defined herein
have the meanings given to such terms in the Note Purchase
Agreement.
W HEREAS ,
the Company has requested an extension of the time to repay the
indebtedness and certain other modifications to the Note Purchase
Agreement; and
W HEREAS ,
the Purchaser and Medtronic, Inc. (“Medtronic”) have
agreed to such modification subject to the terms and conditions set
forth herein; and
W HEREAS ,
the other Additional Note Purchasers have the right, but not the
obligation, to become parties to this Amendment.
N OW ,
T HEREFORE , in consideration of the premises and mutual
covenants of the parties hereunder, the Company, the Purchaser and
the Electing Noteholders (as defined below) agree as
follows:
Section 1. Amendments . The
Note Purchase Agreement and, to the extent applicable, the Notes
are hereby modified as follows:
(a) The definition of
“Maturity Date” is hereby deleted in its entirety and
replaced with the following:
“ “ Maturity
Date ” means (i) with respect to the Electing Notes, July
16, 2008 and (ii) with respect to the Non-Electing Notes, July 16,
2005.”
(b) The following definitions are
hereby added to Section 1 of the Note Purchase
Agreement:
“ “ Electing
Noteholders ” means the Purchaser, Medtronic, and each
Additional Note Purchaser who is a party to this
Amendment.”
“ “ Electing
Notes ” means the Purchaser Senior Subordinated
Convertible Note, the Medtronic Additional Note, and the Additional
Notes held by the Electing Noteholders.”
“ “ Medtronic
Co-Marketing Agreement ” means that certain Co-Promotion
Agreement dated as of March 15, 2002, between Medtronic and the
Company, and as amended by that amendment thereto dated as of April
15, 2003.”
“ “ Merger
” means the Merger (as defined in the Merger Agreement) and
the other transactions contemplated by the Merger
Agreement.”
“ “ Merger
Agreement ” means the Agreement and Plan of Merger, dated
May 12, 2004, by and among RITA MEDICAL SYSTEMS, INC., a Delaware
corporation (“Parent”), HORNET ACQUISITION CORP., a
Delaware corporation and a wholly-owned subsidiary of Parent, and
the Company.”
“ “ Merger
Closing Date ” means the Closing Date as defined in the
Merger Agreement.”
“ “ Non-Electing
Notes ” means the Additional Notes held by the Additional
Note Purchasers who do not execute this Amendment as Electing
Noteholders.”
(c) Section 2.1(a) is hereby deleted
in its entirety and replaced with the following:
“(a)(i) The Company has duly
authorized the issue, sale and delivery of (A) its Purchaser Senior
Subordinated Convertible Note, in the aggregate principal amount of
$4,400,000, to be dated the date of issue thereof, (B) its
Medtronic Additional Note, in the aggregate principal amount of
$4,000,000, to be dated the date of issue thereof and (C) its
Additional Notes, in the aggregate principal amount of up to
$6,600,000, to be dated the date of issue thereof.
(ii) Each of the Electing Notes
shall bear interest from such date on the unpaid principal amount
thereof (calculated on the basis of a 360-day year and actual days
elapsed) at a rate per annum equal to (A) 6% per annum from the
date thereof to and including the date that is the six month
anniversary of the Closing Date, (B) 8% per annum from the date
that is the six month anniversary of the Closing Date until the
first anniversary of the Merger Closing Date, and (C) 14% from the
first anniversary of the Merger Closing Date until such time as the
Electing Notes shall have been paid in full, such interest to be
payable quarterly in arrears on the fifth day of each month
(commencing on the date that is the three month anniversary of the
Closing Date), and at maturity, to bear interest, p
