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(3)
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Securities Exchange and Registration Rights Agreement
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Contemporaneously with the MSLP Loan Agreement, the Company, Venus USA, Venus Canada, Venus Concept Ltd., an Israeli corporation
(Venus Ltd.) and the Madryn Noteholders (as defined below), entered into a Securities Exchange Agreement (the Exchange Agreement) dated as of December 8, 2020, pursuant to which the Company (i) repaid
on December 9, 2020, $42,500,000 aggregate principal amount owed under the credit agreement dated as of October 11, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the Madryn Credit
Agreement), by and among Venus Canada, Venus USA (collectively, the Madryn Borrowers), the Company, as a Guarantor, Venus Ltd., as a Guarantor, the other Guarantors from time to time party thereto, the lenders
from time to time party thereto (the Madryn Lenders), and Madryn Health Partners, LP, as Administrative Agent (Madryn) and (ii) issued, on December 9, 2020, to the Madryn Health Partners (Cayman
Master), LP and Madryn Health Partners, LP (the Madryn Noteholders) secured subordinated convertible notes in the aggregate principal amount of $26,695,110.54 (which amount includes a closing fee of $1,600,000). The Madryn Credit
Agreement was terminated effective December 9, 2020 upon the funding and closing of the MSLP Loan and the issuance of the Notes. The Exchange Agreement also provides the Madryn Noteholders with certain registration rights related to the shares
issuable upon conversion of the Notes described below.
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(4)
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Issuance of Secured Subordinated Convertible Notes
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On December 9, 2020, the Company issued $26,695,110.54 aggregate principal amount of secured subordinated convertible notes (the
Notes) to the Madryn Noteholders pursuant to the terms of the Exchange Agreement.
The Notes will accrue interest at a
rate of 8.00% per annum from the date of original issuance of the Notes to the third anniversary date of the original issuance and thereafter interest will accrue at a rate of six percent (6.00%) per annum. Under certain circumstances, in the case
of an event of default under the Notes, the then applicable interest rate will increase by four percent (4.00)% per annum. Interest is payable quarterly in arrears on the last business day of each calendar quarter of each year after the original
issuance date, beginning on December 31, 2020. The Notes will mature on December 9, 2025, unless earlier redeemed or converted.
In connection with the Exchange Agreement, the Company also entered into (i) a Guaranty and Security Agreement dated as of
December 9, 2020 (the Madryn Security Agreement), by and among the Company, Venus USA, Venus Canada, Venus Ltd. and Madryn, as collateral agent, pursuant to which the Company agreed to grant Madryn a security interest, in
substantially all of its assets, to secure the obligations under the Notes and (ii) a Subordination of Debt Agreement dated as of December 9, 2020 (the CNB Subordination Agreement), by and among the Company, Madryn
Noteholders and CNB. Obligations under the Notes are secured by substantially all of the assets of the Company and its subsidiaries party to the Madryn Security Agreement. The obligations of the Company under the Notes and the security interests and
liens created by the Madryn Security Agreement are subordinated to the indebtedness of the Company owing to CNB (including, but not limited, pursuant to the MSLP Loan Agreement and the CNB Loan Agreement) and any security interests and liens which
secure such indebtedness owing to CNB.
Pursuant to the Madryn Security Agreement, upon the occurrence and during the continuance of an
event of default under the Madryn Notes, if the Company is unable to repay all outstanding amounts, the Madryn Noteholders may, subject to the terms of the CNB Subordination Agreement, foreclose on the collateral granted to it to collateralize the
indebtedness, including the enforcement of the Madryn Security Agreement, which will significantly affect the Companys ability to operate its business. The security interests and liens granted to the Madryn Noteholders under the Madryn
Security Agreement will terminate