EXHIBIT 10.9
FIRST AMENDMENT TO DEBENTURE PURCHASE AGREEMENT
This FIRST AMENDMENT TO DEBENTURE PURCHASE AGREEMENT (the "AMENDMENT") dated
December 20, 2002, by and among Xxxxxx Drug Co., Inc. (the "COMPANY"), Xxxxx
Partners III, L.P. ("XXXXX"), Care Capital Investments II, LP ("CARE"), Essex
Woodlands Health Ventures V, L.P. ("ESSEX") and other signatories thereto (the
"PURCHASE AGREEMENT") is made this 11th day of August, 2003. Capitalized terms
not defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
RECITALS
A. On December 20, 2002, the Company issued approximately $26,400,000 in
principal amount of 5% Convertible Senior Secured Debentures due March 31,
2006 (the "2002 DEBENTURES"), all in accordance with the Purchase
Agreement;
B. Section 1.2(b) of the Purchase Agreements allows the Company to issue
additional 2002 Debentures, provided, however, that (i) the aggregate
principal amount of the 2002 Debentures does not exceed $35 million and
(ii) no 2002 Debentures (other than debentures evidencing the payment of
interest on the 2002 Debentures) are to be issued after August 30, 2003
(the "TERMINATION DATE")
C. On May 5, 2003, at the Company's request, the Company received a letter
executed by each of Xxxxx, Care and Essex (the "MAJORITY 2002
DEBENTUREHOLDERS") advising that the Majority 2002 Debentureholders would
provide funding to meet the Company's 2003 capital requirements, up to an
aggregate amount not to exceed $8.6 million (the "LETTER OF SUPPORT").
D. It is contemplated that the funding by the Majority 2002 Debentureholders
under the Letter of Support will continue after the Termination Date
E. The parties desire to amend the Purchase Agreement to provide for a new
Termination Date.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and obligations set forth herein, the parties hereby agree as follows:
1. The Purchase Agreement, including, without limitation, Section
1.2(b) and Article XX thereof, is hereby amended to change the
definition of Termination Date to mean December 31, 2003.
2. The parties hereto agree that, expect as expressly modified herein,
all provisions of the Purchase Agreement shall remain in full force
and effect.
3. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute
the same Amendment.
IN WITNESS WHEREOF, the parties have cause this Amendment to be executed
by their respective duly authorized officers a of the date first above written.
XXXXXX DRUG CO., INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
Acting Chief Executive Officer
XXXXX PARTNERS III, L.P.
By: Claudius, L.L.C., General Partner
000 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx Xxxxxxxxxxx
----------------------------------------
By: Xxxxx Xxxxxxxxxxx
Its: General Partner
XXXXX EMPLOYEE FUND III, L.P.
By: Wesson Enterprises, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx X. Xxxxxx
----------------------------------------
By: Xxxxx X. Xxxxxx
Its: General Partner
CARE CAPITAL INVESTMENTS II, LP
By: Care Capital II, LLC, General Partner
Princeton Overlook One
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxx X. Xxxxxx
----------------------------------------
By: Xxxxx X. Xxxxxx
Its: Authorized Signatory
XXXXX PARTNERS INTERNATIONAL, III, L.P.
By: Claudius, L.L.C., General Partner
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx Xxxxxxxxxxx
----------------------------------------
By: Xxxxx Xxxxxxxxxxx
Its: General Partner
ESSEX WOODLANDS HEALTH VENTURES V, L.P.
By: Essex Woodlands Health Ventures V, L.L.C.,
its General Partner
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
/s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------
By: Xxxxxxxx Xxxxxxxxx
Its: Managing Director
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