Exhibit 10.1


 


AMENDMENT NO. 1 TO STOCKHOLDER AND VOTING AGREEMENT


 


THIS
AMENDMENT NO. 1 TO STOCKHOLDER AND VOTING AGREEMENT (this “Amendment”), dated
as of June 1, 2010, is made and entered into among Merit Medical Systems, Inc.,
a Utah corporation (the “Buyer”), and Cerberus Partners, L.P. and Cerberus
International, Ltd. (each a “Stockholder” and collectively, the “Stockholders”).


 


RECITAL


 


The Buyer and the Stockholders previously entered into that certain
Stockholder and Voting Agreement, dated as of May 13, 2010 (the “Agreement”),
and now desire to amend certain of the terms thereof.  Except as otherwise defined herein,
capitalized terms used herein, but not otherwise defined, have the respective
meanings ascribed thereto in the Agreement.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants, and agreements contained in the
Agreement and this Amendment, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:


 


1.               Amendment.  Each of the
parties hereto agree that Recital B of the Agreement shall be deleted and
replaced in its entirety with the following:


 


B.                                     As of the date
hereof, the Stockholders beneficially own and are entitled to dispose of (or to
direct the disposition of) and to vote (or to direct the voting of) that number
of shares of (i) the Series A Preferred Stock, par value $0.01 per
share, and (ii) the common stock, par value $0.01 per share, of the
Company, as set forth on the attached Exhibit A (which is incorporated
herein by this reference) (all such preferred and common shares collectively,
the “Shares”), which Shares entitle the Stockholders to vote on all matters
presented to the stockholders of the Company. 
The Shares owned by the Stockholders, together with any other shares of
capital stock of the Company the beneficial ownership of which is acquired by
the Stockholders, subsequent to the date of this Agreement, are collectively
referred to herein as “Subject Shares.”


 


2.                                       No Further
Amendment; Miscellaneous. 
Except as specifically provided in this Amendment, the remaining
provisions of the Agreement remain in effect according to their respective
terms.  The “Miscellaneous” provisions
set forth in Article IV of the Agreement are hereby incorporated herein by
reference.


 


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signature page follows]


 

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment No. 1
to Stockholder and Voting Agreement to be signed as of the day and year first
written above.


 


	
   

  	
  The Buyer:

  
	
   

  	
   

  
	
   

  	
  MERIT MEDICAL SYSTEMS,
  INC.:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kent Stanger

  
	
   

  	
  Name:

  	
  Kent Stanger

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  The
  Stockholders:

  
	
   

  	
   

  
	
   

  	
   CERBERUS
  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
    By:

  	
    Cerberus Associates, L.L.C.,

  
	
   

  	
   

  	
    its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Seth P. Plattus

  
	
   

  	
  Name: Seth P. Plattus

  
	
   

  	
  Title:
  Senior Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CERBERUS INTERNATIONAL, LTD.

  
	
   

  	
   

  
	
   

  	
    By:

  	
    Partridge Hill Overseas Management, LLC,

  
	
   

  	
   

  	
    its investment manager

  
	
   

  	
   

  	
   

  
	
   

  	
    By:

  	
  /s/ Seth P. Plattus

  
	
   

  	
  Name: Seth P. Plattus

  
	
   

  	
  Title: Senior Managing
  Director

  
	
   

  	
   

  
	
   

  	
  Addresses
  for the Stockholders pursuant to Section 4.6:

  
	
   

  	
   

  
	
   

  	
  c/o Cerberus Capital Management, L.P.

  
	
   

  	
  299 Park Avenue

  
	
   

  	
  New
  York, NY 10171

  
	
   

  	
  Attention:
  General Counsel

  
	
   

  	
  Facsimile:
  (212) 891-1540

  
	
   

  	
   

  
	
   

  	
  with
  a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Lowenstein
  Sandler PC

  
	
   

  	
  65
  Livingston Avenue

  
	
   

  	
  Roseland,
  NJ 07068

  
	
   

  	
  Attention:
  Robert G. Minion, Esq.

  
	
   

  	
  Facsimile:
  (973) 597-2400

  
					



 

















 


EXHIBIT A


 


Series A Preferred Stock


 


	
  Stockholder

  	
   

  	
  Number of Series A Preferred Shares

  (on an as converted basis)

  
	
  Cerberus
  International, Ltd.

  	
   

  	
  3,171 shares of
  Series A Preferred Stock (792,750 shares of common stock on an as
  converted basis)

  
	
   

  	
   

  	
   

  
	
  Cerberus
  Partners, L.P.

  	
   

  	
  1,645 shares of
  Series A Preferred Stock (411,250 shares of common stock on an as
  converted basis)

  



 


Common Stock


 


	
  Stockholder

  	
   

  	
  Number of shares of Company Common Stock

  
	
  Cerberus
  International, Ltd.

  	
   

  	
  937,212 shares of
  Company Common Stock

  
	
   

  	
   

  	
   

  
	
  Cerberus
  Partners, L.P.

  	
   

  	
  469,256 shares
  of Company Common Stock