EXHIBIT 10.35
Execution Form
AMENDMENT TO SECURED LOAN AGREEMENT
THIS AMENDMENT TO SECURED LOAN AGREEMENT (this "Amendment"), is dated as
of May 28, 2003 and amends the Secured Loan Agreement (the "Secured Loan
Agreement"), dated as April 22, 2003, into by and among Diomed Holdings, Inc., a
Delaware corporation, with headquarters located at One Dundee Park, Andover, MA
01810 (the "Company"), Diomed, Inc., a Delaware corporation and a wholly-owned
subsidiary of the Company ("Diomed"), each entity named on the signature page
hereto as a Lender (each, a "Lender") and Gibralt US, Inc., a Colorado
corporation (the "Designated Lender"). Capitalized terms used but not defined
herein shall have their respective meanings set forth in the Secured Loan
Agreement, unless the context clearly indicates otherwise.
W I T N E S S E T H:
WHEREAS, the Company, Diomed, the Lenders and the Designated Lender have
entered into the Secured Loan Agreement pursuant to which the Lenders committed
to provide to the Company up to $1,200,000 of interim financing pending the
completion of the Contemplated Equity Financing; and
WHEREAS, as a result of information received by the Company as to
prevailing expectations among investors that might be interested in investing
capital in the Company, the Company and Diomed have determined that it was
essential to induce the holders of the Class D Notes to eliminate the
indebtedness represented by the Class D Notes and participate in the
Contemplated Equity Financing of the Company by converting their Class D Notes
into that round, thereby investing on the same terms and conditions as third
party investors; and
WHEREAS, in light of the foregoing considerations, the Company and Diomed
have proposed to the Lenders that the Secured Loan Agreement and the Class D
Notes be amended, inter alia, to provide that the Lenders are obligated to
convert the outstanding principal amount and accrued interest under their Class
D Notes into shares of Common Stock; and
WHEREAS, the Lenders are willing to amend the Secured Loan Agreement and
the Class D Notes (i) to provide for the redemption of the Class D Notes upon
the consummation of the Contemplated Equity Offering on or before July 31, 2003
(as more specifically provided herein); and (ii) to provide that the Company
shall seek AMEX listing of the Common Stock underlying the Class D Convertible
Preferred Stock issued under the Secured Loan Agreement at a future Special
Meeting of the stockholders at which stockholder approval of the issuance of
Common Stock under the Contemplated Equity Offering will be sought, rather than
at its 2003 Annnual Meeting of Stockholders.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Secured Loan Agreement and the Class D Notes issued thereunder as follows:
1. Section 1(e) of the Secured Loan Agreement is hereby amended and
restated in full to read as follows:
"(e) Redemption of Class D Notes upon Consummation of the Contemplated
Equity Financing. As set forth in the Class D Notes, if the Company consummates
the Contemplated Equity Financing (as defined in the Second Exchange Agreement
dated as of May 28, 2003 by and among the Company, Diomed, the Designated Note
Purchaser (as defined therein) and the Note Purchasers listed therein) on or
prior to July 31, 2003 such that pursuant to the Contemplated Equty Financing
the Company has raised $6,000,000 or more in cash or other property valued at
fair market value in good faith by the Board of Directors, or a combination of
both, calculated on a gross basis prior to deduction for commissions, fees or
any other expenses of raising such funds, then the Lenders shall accept as
payment in full of the unpaid principal amount of and accrued interest under the
Class D Notes the Company's issuance of shares of Common Stock or other
securities issued by the Company in the Contemplated Equity Financing at the
same price and other terms and subject to the same conditions as the
Contemplated Equity Financing."
2. Section 4(g) of the Secured Loan Agreement is hereby amended and
restated to read as follows:
"(g) AMEX Listing of Common Shares. The Company shall seek approval at a
special meeting of stockholders of the issuance of the Common Shares upon
conversion of the Commitment Shares, pursuant to the rules and regulations of
the AMEX (specifically, Section 713 of the Listing Standards, Policies and
Requirements of the AMEX). Said special meeting shall be held as promptly as is
practicable after the consummation of the Contemplated Equity Offering, at which
meeting the Company shall, if required, also seek stockholder approval of the
issuance of the Common Stock or other securities to be issued (directly or upon
conversion or exchange) under the terms of the securities that may be sold in
the Contemplated Equity Financing."
3. The caption of Section 2 and Sections 2(a) and 2(b) of each of the
Class D Notes are hereby amended and restated in full to read as follows:
"2. Redemption upon Consummation of Contemplated Equity Financing;
Holder's Option to Demand Repayment upon Non-Occurrence of Contemplated Equity
Financing.
(a) Upon the consummation of the Contemplated Equity Financing on or prior
to July 31, 2003 wherein the Company has raised $6,000,000 or more in cash or
other property valued at fair market value in good faith by the Board of
Directors, or a combination of both, calculated on a gross basis prior to
deduction for commissions, fees or any other expenses of raising such funds, the
Company shall provide written notice to the Designated Lender in accordance with
the notice provisions set forth in Section 11 of the Secured Loan Agreement,
which notice shall include the terms and conditions of the Contemplated Equity
Financing, whereupon this Class D Note and any other Class D Notes owned by the
Holder shall be automatically converted into Common Stock or other equity
securities issued by the Company in the Contemplated Equity Financing at the
price and other terms and subject to the same conditions as the Contemplated
Equity Financing, such that such indebtedness will be treated as proceeds from
the Contemplated
Equity Financing on the same basis as the proceeds provided by the other
investors in the Contemplated Equity Financing, whereupon the Company shall to
issue an amount of Common Stock or other equity securities issued in the
Contemplated Equity Financing equal to the amount of indebtedness represented by
the Holder's Notes (including all accrued and unpaid interest) as of the date of
redemption divided by the purchase price per share of the Common Stock or other
equity securities issued in the Contemplated Equity Financing (the "Redemption
Price"). At the time of redemption of this Note upon the consummation of the
Contemplated Equity Financing as aforesaid, the Company shall record the
issuance of the securities representing the Redemption Price on the Company's
records as of the time of the redemption, and shall provide Certificates
evidencing such issuance to the Designated Lender as soon as practicable after
the redemption. The Holder's failure to return this Note to the Company after
the satisfaction by the Company or Diomed of its obligations shall not cause the
Company or Diomed to have any indebtedness or obligation to the Holder or any
other Person.
(b) If the Contemplated Equity Financing is not consummated on or prior to
July 31, 2003, then the Holder may, at its option and in its sole discretion, by
providing written notice to the Company, declare this Note, together with all
accrued and unpaid interest herein, to be immediately due and payable, whereupon
the Holder may immediately enforce any and all of the Holder's rights and
remedies provided herein or any other rights or remedies afforded by law. Upon
receipt of such Notice, Diomed shall pay to the Holder in cash the entire
principal amount and accrued and unpaid interest on this Note, whereupon the
indebtedness represented by this Note (including all accrued and unpaid
interest) shall be considered paid in full for all purposes, and the Note shall
be cancelled and promptly returned by the Holder to the Company. The Holder's
failure to return this Note to the Company after payment is made as aforesaid
shall not cause the Company to have any indebtedness or obligation to the Holder
or any other Person."
4. All other terms and conditions of the Secured Loan Agreement and the
Class D Notes shall remain in full force and effect.
[Signature page follows.]
IN WITNESS WHEREOF, this Amendment has been duly executed by the Lenders,
the Designated Lender, Diomed and the Company as of the date set forth below.
Date: May 28, 2003
COMPANY:
Diomed Holdings, Inc.
By:____________________________________
Name: James A. Wylie, Jr.
Title: Chief Executive Officer
DIOMED:
Diomed, Inc.
By:____________________________________
Name: James A. Wylie, Jr.
Title: Chief Executive Officer
DESIGNATED LENDER
Gibralt US, Inc.
By:____________________________________
Name: Johnny Ciampi
Title: Authorized Person
LENDER
Gibralt US, Inc.
By:____________________________________
Name: Johnny Ciampi
Title: Authorized Person
LENDER
James A. Wylie, Jr.
_______________________________________
LENDER
Peter Norris
_______________________________________