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EXHIBIT 10.3
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.
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 Purchaser and Medtronic, Inc. ("Medtronic") have agreed to
such modification subject to the terms and
conditions set forth herein; and
WHEREAS,
the other Additional Note Purchasers have the right, but not
the
obligation, to become parties to this
Amendment.
NOW,
THEREFORE, 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."
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""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, payable
on
demand, on any overdue principal and, to the extent permitted
by
applicable law, on any overdue inter