EXHIBIT 10.8
AMENDMENT TO DEBENTURE AND SHARE PURCHASE AGREEMENT
This AMENDMENT (the "AMENDMENT") to DEBENTURE AND SHARE PURCHASE
AGREEMENT, dated as of February 6, 2004 (the "2004 DEBENTURE PURCHASE
AGREEMENT"), 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 collectively with Xxxxx and Care, the
"MAJORITY LENDERS"), and other signatories thereto (including, without
limitation, through Joinder Agreements) (collectively with the Majority Lenders,
the "LENDERS"), is dated this 1st day of June, 2004. Capitalized terms used
herein which are not defined herein have the meanings ascribed to them in the
2004 Debenture Purchase Agreement.
WHEREAS, pursuant to the terms of the 2004 Debenture Purchase Agreement,
the aggregate principal amount of the Debentures cannot exceed $14 million
without the prior written consent of the holders of at least 60% of the
principal amount of the Debentures then held by the Majority Lenders;
WHEREAS, pursuant to the terms of the 2004 Debenture Purchase Agreement,
no Debenture may be issued after the Termination Date;
WHEREAS, as of the date of this Amendment, the Company has issued
Debentures in the aggregate principal amount of $14,000,000.00 under the 2004
Debenture Purchase Agreement;
WHEREAS, the Company proposes to issue additional Debentures, such that
the aggregate principal amount of Debentures to be issued under the 2004
Debenture Purchase Agreement will exceed $14,000,000;
WHEREAS, the Company anticipates that some Debentures may be issued after
the Termination Date;
WHEREAS, pursuant to Section 14.1 of the 2004 Debenture Purchase
Agreement, an amendment of any provision of the 2004 Debenture Purchase
Agreement must be in writing and signed by the Company (and the Company's
Independent Committee) and the holders of at least 60% of the principal amount
of the Debentures then held by the Lenders;
WHEREAS, the Majority Lenders are holders of at least 60% of the principal
amount of Debentures presently held by the Lenders;
WHEREAS, the Majority Lenders desire to amend the 2004 Debenture Purchase
Agreement as set forth below;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and obligations set forth herein, the parties hereby agree as follows:
1. Section 3.1 of the 2004 Debenture Purchase Agreement is hereby deleted in
its entirety and replaced with the following:
"The initial Closing will take place at the offices of St.
Xxxx & Xxxxx, L.L.C., Xxx Xxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000
simultaneously with the execution of this Agreement, or such other
place, time and date as shall be mutually agreed to by the Company
and the Purchasers. The Company and the Purchasers acknowledge and
agree that the Debentures may be sold by the Company on one or more
Closing Dates; provided, however, that (i) the aggregate principal
amount of the Debentures shall not exceed $17,500,000 without the
prior written consent of the holders of at least 60% of the
principal amount of the Debentures then held by Xxxxxxx Xxxxxxxxxx
XX, XX, Xxxxx Xxxxxxxxx Health Ventures V, L.P., Xxxxx Partners III,
L.P. and (ii) that no Debentures shall be issued after the
Termination Date. Upon the issuance of additional Debentures under
this Agreement, any additional Purchaser (each an "Additional
Investor") shall be required to execute a Joinder Agreement, which
Joinder Agreement shall include the aggregate principal amount of
the Debentures issued to such Purchaser. Any Additional Investors in
the Debentures executing a Joinder Agreement shall be deemed a
"Purchaser" for all purposes of this Agreement. Each issuance to an
Additional Investor shall be made on the terms and conditions of
this Agreement."
2. The Definition of "Termination Date" set forth in Article XX of the 2004
Debenture Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
"Termination Date" means the earlier of (a) June 30, 2004, or
(b) the Conversion Event.
3. The parties hereto agree that, except as expressly modified by this
Amendment, all provisions of the 2004 Debenture Purchase Agreement shall
remain in full force and effect.
4. This Amendment may be executed in any number of counterparts, including by
facsimile copy, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Amendment on the date written above.
XXXXXX DRUG CO., INC.
000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
Its: President and Chief Executive Officer
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
By: Xxxxxxx Xxxxxx
Its: Independent Committee Member
/s/ Xxxxxxx Xxxxxx
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By: Xxxxxxx Xxxxxx
Its: Independent Committee Member
/s/ Xxxx Xxxxx
--------------------------------------------
By: Xxxx Xxxxx
Its: Independent Committee Member
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
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By: Xxxxx Xxxxxxxxxxx
Its: General Partner
CARE CAPITAL INVESTMENTS II, LP
By: Care Capital, L.L.C., General Partner
Princeton Overlook One
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxx X. Xxxxxx
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By: Xxxxx X. Xxxxxx
Its: Authorized Signatory
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
