CONSENT AND AMENDMENT TO NOTEHOLDERS AGREEMENT
CONSENT
AND AMENDMENT TO NOTEHOLDERS AGREEMENT
This
Consent and Amendment (the “Amendment”)
to
Noteholders Agreement (“Agreement”)
dated
as of February 6, 2004 by and among Essex Woodlands Health Ventures V, L.P.,
a
Delaware limited partnership (“Essex”),
▇▇▇▇▇
Partners III, L.P., a Delaware limited partnership (“▇▇▇▇▇”),
acting in its capacity as a Holder (as defined herein) and as agent for the
Holders (“Agent”)
and
Care Capital Investments II, L.P., a Delaware limited partnership (“Care
Capital”),
certain of the affiliates of Care Capital and ▇▇▇▇▇ and certain other
participants in the Senior Note (such affiliates and participants, together
with
▇▇▇▇▇, Care and Essex, the “Holders”),
is
dated as of June 28, 2007. Capitalized terms appearing in this Amendment without
definition will have the meanings ascribed to such terms in the
Agreement.
PRELIMINARY
STATEMENTS
The
parties thereto wish to amend the Agreement to allow the Agent with the consent
of holders of not less than 98.38% of the aggregate Participation Percentage
to
amend the Senior Note and the Loan (as defined in the Loan Agreement, as amended
through the date hereof) with respect to the maturity date and interest rate
applicable thereto. In addition, the parties hereto wish to consent to extension
of the maturity date of the Senior Note and the Loan to September 30, 2007.
Previously said Loan and Senior Note were due to mature on June 30,
2007.
AMENDMENT
AND CONSENT
In
consideration of the mutual covenants contained in this Amendment and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE
1
CONSENT
The
parties hereto hereby irrevocably consent to the extension of the maturity
date
of the Loan and the Senior Note to September 30, 2007.
ARTICLE
2
AMENDMENT
OF NOTEHOLDERS AGREEMENT
2.1
The
Agreement is hereby amended as follows:
A. Section
2.1 of the Agreement is amended by adding a new subsection (f) as follows:
(f)
“Notwithstanding the foregoing the Agent is authorized to amend the Senior Note
and the Loan (as defined in the Loan Agreement, as amended through the date
of
Amendment of the Agreement dated as of June 28, 2007) to modify the interest
rate applicable thereto and to extend the maturity thereof, with the consent
of
the holders
of not less than 98.38% of the aggregate Participation Percentage.”
B. Section
5.6 of the Agreement is replaced in its entirety with the following:
“No
modification or amendment to this Agreement may be made except by a written
instrument signed by the Agent and the Requisite Holders; provided,
that
any amendment to Article 4 shall require the written consent of each Claimant;
and further
provided
that any
modification to Section 2.1(f) shall require the approval of holders of not
less
than 98.38% of the aggregate Participation Percentage.”
ARTICLE
3
MISCELLANEOUS
3.1 GOVERNING
LAW
This
Amendment and the rights of the parties hereunder shall be governed in all
respects by the laws of the State of New York wherein the terms of this
Amendment were negotiated, excluding to the greatest extent permitted by law
any
rule of law that would cause the application of the laws of any jurisdiction
other than the State of New York.
3.2 SEVERABILITY
If
any
provision or portion of any provision of this Amendment is held to be
unenforceable or invalid by any court of competent jurisdiction, the remaining
portions of any such provision and the remaining provisions hereof shall remain
in effect.
3.3 COUNTERPARTS
This
Amendment may be executed simultaneously in one or more counterparts, including
by facsimile copy, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have executed this Consent and Amendment
to
Noteholders Agreement as of the date first written above.
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LENDER
AND AGENT:
▇▇▇▇▇
PARTNERS III, L.P.
By:
Claudius, L.L.C., General Partner
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇.
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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LENDER:
CARE
CAPITAL OFFSHORE INVESTMENTS II, LP
By:
Care Capital II, LLC, as general partner
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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By:
▇▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Its:
General Partner
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Its:
Authorized Signatory
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LENDER:
▇▇▇▇▇
PARTNERS INTERNATIONAL, III, L.P.
By:
Claudius, L.L.C., General Partner
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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LENDER:
CARE
CAPITAL INVESTMENTS II, LP
By:
Care Capital II, LLC, as general partner
▇▇
▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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By:
▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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| Its: General Partner |
Title:
Authorized Signatory
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LENDER:
▇▇▇▇▇
EMPLOYEE FUND III, L.P.
By:
Wesson Enterprises, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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LENDER:
ESSEX
WOODLANDS HEALTH
VENTURES
V, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇▇ Tharangaj | ||
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Its:
General Partner
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Its:
Managing Director
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LENDER:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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LENDER:
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
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LENDER:
▇▇▇▇▇▇
▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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LENDER:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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LENDER:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ LLC
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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LENDER:
▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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/s/
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/s/ ▇▇▇▇ ▇▇▇▇▇ | ||
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