EXHIBIT 6
CO-SALE AGREEMENT
THIS CO-SALE AGREEMENT is made this 2nd day of March, 2001, by and
among Luxtec Corporation, a Massachusetts corporation (the "Company"), and the
persons listed as Stockholders in the signature pages hereto (collectively, the
"Stockholders" and individually, a "Stockholder").
WHEREAS, in connection with the Agreement and Plan of Merger, dated
November 27, 2000, as amended by Amendment No. 1 to the Agreement and Plan of
Merger, dated February 8, 2001 (together, the "Merger Agreement"), by and among
the Company, Laser Merger Sub Inc., a Delaware corporation and a wholly-owned
subsidiary of the Company, and PrimeSource Surgical, Inc., a Delaware
corporation ("PSS"), the Company will issue shares of Series B Preferred Stock,
shares of Series C Preferred Stock and shares of Series D Preferred Stock to
certain of PSS's stockholders;
WHEREAS, on February 3, 1998, PSS entered into an Investors' Rights
Agreement (the "Investors' Rights Agreement") and a Voting Agreement (the
"Voting Agreement") with holders of the PSS Common Stock and Series A Preferred
Stock, on June 14, 1999, PSS entered into the Amended and Restated Stockholders
Agreement (the "Amended and Restated Stockholders Agreement"), on various dates
in November, 1999, PSS entered into Amendment No. 1 to Amended and Restated
Stockholders' Agreement, on August 17, 2000, PSS entered into a Second Amended
and Restated Stockholders' Agreement (the "Second Amended and Restated
Stockholders' Agreement") and on January 23, 2001, PSS entered into Third
Amended and Restated Stockholders' Agreement (collectively with the Investors'
Rights Agreement, the Voting Agreement, the Amended and Restated Stockholders'
Agreement and the Second Amended and Restated Stockholders' Agreement, the
"Prior Agreements");
WHEREAS, the parties hereto are willing to execute this Agreement and
to be bound by the provisions hereof;
NOW, THEREFORE, in consideration of the premises, the agreements set
forth below, and the parties' desire to further their interests, the parties
agree as follows:
34. Certain Definitions.
All terms not otherwise defined herein shall have the meanings set
forth in the Registration Rights Agreement, dated as of the date hereof (the
"Registration Rights Agreement"), by and among the Company and the stockholders
signatories thereto.
"Rollover Stock" shall mean the Alternative Equity Financing Stock,
Qualified Equity Financing Stock or Future Preferred Stock.
"Rollover Stockholder" shall mean the Stockholders of Rollover Stock.
Exhibit 6-1
35. "Tag-Along" Rights for Sales by Rooney or Bayley or Series B
Stockholders.
(a) If either Rooney or Bayley or Series B Stockholders (for
purposes of this Section 2, the "Proposed Transferor") at any time or from time
to time, in one transaction or in a series of related transactions, desires to
sell, transfer or otherwise dispose of (collectively, "Transfer") (for purposes
of this Section 2, a "Tag-Along Sale") shares of Common Stock and/or Preferred
Stock to any Person (including the Company or any Subsidiary of the Company)
(for purposes of this Section 2, the "Proposed Transferee"), then each of the
Rollover Stockholders and Series C Stockholders shall have the right, but not
the obligation, to elect that the Proposed Transferor be obligated to require,
as a condition to such Tag-Along Sale, that the Proposed Transferee purchase
from each such electing Rollover Stockholder or Series C Stockholder:
up to the number of shares of Common Stock derived by multiplying the
total number of shares of Common Stock owned by or issuable to such electing
Rollover Stockholder or Series C Stockholder by a fraction, the numerator of
which is equal to the number of shares of Common Stock then owned by or issuable
to the Proposed Transferor that are to be purchased by the Proposed Transferee
(without giving effect to any reduction in such number of shares by reason of
any Rollover Stockholder's or Series C Stockholder's election to exercise the
"tag-along" rights provided in this Section 2 in connection with such
transaction) and the denominator of which is the total number of shares of
Common Stock owned by or issuable to the Proposed Transferor prior to such sale;
and
up to the number of shares of Preferred Stock having an aggregate
redemption value equal to the amount derived by multiplying the aggregate
redemption value of the shares of Rollover Stock or Series C Preferred Stock
owned by or issuable to such electing Rollover Stockholder or Series C
Stockholder times a fraction, the numerator of which is the aggregate redemption
value of the shares of Preferred Stock then owned by or issuable to the Proposed
Transferor that are to be purchased by the Proposed Transferee (without giving
effect to any reduction in such number of shares by reason of any Rollover
Stockholder's or Series C Stockholder's election to exercise the "tag-along"
rights provided in this Section 2 in connection with such transaction) and the
denominator of which is the aggregate redemption value of the shares of
Preferred Stock owned by or issuable to the Proposed Transferor prior to such
sale;
PROVIDED, HOWEVER, that if any Rollover Stockholder or Series C Stockholder
chooses not to sell any or all shares which such Rollover Stockholder or Series
C Stockholder may be entitled to sell under this SECTION 2(a), and one or more
of the Rollover Stockholders or Series C Stockholders is exercising its right to
sell the maximum number of shares permissible (for purposes of this Section 2,
each, a "Reoffer Stockholder"), then each Reoffer Stockholder and each of the
Proposed Transferors shall have the option to sell such shares as to which the
option to sell has not been exercised (for purposes of this Section 2, the
"Reoffer Shares"), subject to allocation among them pro rata based on their
respective ownership of shares of Common Stock or Preferred Stock, as the case
may be.
Any such sales by any Rollover Stockholder or Series C Stockholder
shall be on the same terms and conditions as the proposed Tag-Along Sale by the
Proposed Transferor. Each Rollover Stockholder or Series C Stockholder whose
shares are sold in a Tag-Along Sale shall be
Exhibit 6-2
required to bear a proportionate share of the expenses of the transaction,
including, without limitation, legal, accounting and investment banking fees and
expenses.
(b) The Proposed Transferor participating in a Tag-Along Sale
shall promptly (and in no event less than thirty (30) business days prior to the
consummation thereof) provide the Company with notice (for purposes of this
Section 2, the "Proposed Transferor Notice") of the proposed Tag-Along Sale
(which the Company shall transmit to each Rollover Stockholder or Series C
Stockholder within three (3) business days of its receipt thereof) containing
the following:
the name and address of the Proposed Transferee of the shares in the
Tag-Along Sale;
the number of shares of Common Stock and Preferred Stock proposed to be
Transferred by the Proposed Transferor in the event that none of the Rollover
Stockholders or Series C Stockholders elects to participate;
the proposed amount and form of consideration to be paid for such
shares and the terms and conditions of payment offered by the Proposed
Transferee;
the aggregate number of shares of Common Stock and Preferred Stock held
of record by such Proposed Transferor as of the date of the notice (for purposes
of this Section 2, the "Notice Date") from the Proposed Transferor to the
Company;
the aggregate number of shares of Common Stock and Preferred Stock held
of record as of the Notice Date by all Rollover Stockholders and Series C
Stockholders as a group;
the maximum number of shares of Common Stock and Preferred Stock each
such Rollover Stockholder or Series C Stockholder is entitled to include in the
Tag-Along Sale (as computed in accordance with the equations set forth in
Section 2(a)); and
that the Proposed Transferee has been informed of the "tag-along"
rights provided for in Section 2(a).
(c) If a Rollover Stockholder or Series C Stockholder desires
to participate in such Tag-Along Sale, such Series C Stockholder shall provide
written notice (for purposes of this SECTION 2, the "Tag-Along Notice") to such
Proposed Transferor not later than ten (10) business days after the Notice Date
setting forth the number of shares of Common Stock, Rollover Stock and Series C
Preferred Stock, if any, such Rollover Stockholder or Series C Stockholder
elects to include in the Tag-Along Sale. In the event that any Rollover
Stockholder or Series C Stockholder chooses not to sell any or all which such
other Rollover Stockholder or Series C Stockholder may be entitled to sell under
SECTION 2(a), the Proposed Transferor participating in the Tag-Along Sale shall
promptly (and in no event less than fifteen (15) business days prior to the
consummation of such Tag-Along Sale) provide the Company with notice (for
purposes of this SECTION 2, the "Reoffer Notice") of such Reoffer Shares
available for sale pursuant to SECTION 2(a) (which the Company shall transmit to
each Reoffer Stockholder within three (3) business days of its receipt thereof).
If a Reoffer Stockholder desires to
Exhibit 6-3
participate in the sale of any of the Reoffer Shares, such Reoffer Stockholder
shall provide written notice thereof to such Proposed Transferor not later than
five (5) business days after receipt of the Reoffer Notice setting forth the
number of additional shares of Common Stock and Preferred Stock, if any, such
Reoffer Stockholder elects to include in the Tag-Along Sale. A Rollover
Stockholder or Series C Stockholder may elect to include shares in a Tag-Along
Sale only if such Rollover Stockholder or Series C Stockholder elects to include
in such Tag-Along Sale a ratio of shares of Common Stock to shares of Rollover
Stock or Series C Preferred Stock equal to the ratio of shares of Common Stock
to shares of Preferred Stock proposed to be sold by the Proposed Transferor in
the Tag-Along Sale; PROVIDED, HOWEVER, that (i) if a Rollover Stockholder or
Series C Stockholder is selling all shares of Common Stock owned by it and its
Affiliates in such Tag-Along Sale, then the number of shares of Rollover Stock
or Series C Preferred Stock sold by such Rollover Stockholder or Series C
Stockholder in the Tag-Along Sale shall not be limited by the provisions of this
sentence and (ii) if a Rollover Stockholder or Series C Stockholder is selling
all of the shares of Rollover Stock or Series C Preferred Stock owned by it and
its Affiliates in such Tag-Along Sale, then the number of shares of Common Stock
sold by such Rollover Stockholder or Series C Stockholder in the Tag-Along Sale
shall not be limited by the provisions of this sentence. In the event that the
Proposed Transferee does not purchase the shares of the Proposed Transferor,
then the proposed Tag-Along Sale by the Rollover Stockholders or Series C
Stockholders to such Proposed Transferee shall not take place.
(d) The provisions of this SECTION 2 shall not apply to any
transaction in which shares of Common Stock or Series B Preferred Stock are
proposed to be sold publicly pursuant to a registration statement filed under
the Act.
(e) Notwithstanding anything herein to the contrary, the
rights and obligations provided for in this SECTION 2 shall terminate, with
respect to all shares (other than Series C Preferred Stock) held by each
Rollover Stockholder or Series C Stockholder, upon the occurrence of the
effective date of the Company's registration statement in connection with its
closing of a firm commitment underwritten public offering of shares of Common
Stock by the Company and any selling stockholders in which (i) the aggregate
price paid for such shares by the public shall be at least $25,000,000 and (ii)
implies a post-equity valuation of the Company of at least $75,000,000.
36. RESTRICTIONS ON ROONEY'S AND BAYLEY'S TRANSFER.
Each of Rooney and Bayley agrees that he will not sell,
transfer or pledge any of his respective shares of the Company capital stock (or
any direct or indirect interest therein) or any stock certificate representing
the same, now or hereafter at any time owned by him, except as consented to in
writing by a holders of a majority of the shares of the Series C Preferred
Stock, which consent shall not be unreasonably withheld.
37. EFFECTIVENESS OF AGREEMENT. This Agreement shall not become
effective until the Effective Time (as defined in the Merger Agreement) of the
Merger. If the Merger (as defined in the Merger Agreement) is not consummated
then this Agreement shall be of no force and effect and the Prior Agreements
shall remain in full force and effect pursuant to its terms.
Exhibit 6-4
38. NOTICES.
All notices, requests, consents and other communications provided for
or permitted hereunder shall be made in writing and shall be delivered by
hand-delivery, registered or certified first-class mail, return receipt
requested, or sent by telecopier or telex, addressed as follows:
(a) if to GE, at its address set forth on the signature pages
hereto, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
(b) if to a Stockholder who is not GE, at the most current
address given by the Stockholder to the Company in accordance with the
provisions hereof, which address initially is the address of the Stockholder set
forth on the signature pates hereto; and
(c) if to Rooney or Bayley, initially at his address set forth
on the signature pages hereto and thereafter at such other address, notice of
which is given in accordance with the provisions hereof, with a copy to Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇. All such
notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five (5) business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
39. ENTIRE AGREEMENT AND AMENDMENTS.
(a) This Agreement, together with the Registration Rights
Agreement dated as of even date herewith, constitutes the entire agreement of
the parties with respect to the subject matter hereof and thereof, and upon the
effectiveness of this Agreement as set forth in Section 4 hereof, supersedes the
Prior Agreements in their entirety with respect to each party to such prior
agreements. The parties hereto acknowledge and agree that the Prior Agreements
shall be of no force and effect with respect to the parties hereto following the
effectiveness of this Agreement.
(b) Neither this Agreement nor any provision hereof may be
waived, modified, amended or terminated except by a written agreement signed by
Rooney, Bayley and the Stockholders owning at least eighty percent (80%) of the
shares owned by the Stockholders; PROVIDED, HOWEVER, that any amendment hereto
shall require the consent of the holders of 50% of the then outstanding shares
of Series C Preferred Stock provided that any amendment or modification of this
Agreement that would adversely affect any of the expressed rights contained
herein of any party hereto may be effected only with the consent of such party.
40. GOVERNING LAW; SUCCESSORS AND ASSIGNS.
This Agreement shall be governed by the laws of the State of Delaware
and shall bind and inure to the benefit of and be binding upon the respective
heirs, personal representatives,
Exhibit 6-5
executors, administrators, successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Without limiting the
generality of the foregoing, all covenants and agreements of the Stockholders
shall bind any and all subsequent holders of their shares, and the Company
agrees that it shall not transfer on its records any such shares unless (i) the
transferor Stockholder shall have first delivered to the Company and the other
Stockholders the written agreement of the transferee to be bound by this
Agreement to the same extent as if such transferee had originally been a
Stockholder hereunder and (ii) the certificate or certificates evidencing the
shares so transferred bear the legend required by Section 14 of the Registration
Rights Agreement.
41. EXPENSES.
If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
42. SEVERABILITY.
If any provision of this Agreement, or the application thereof, will
for any reason and to any extent be invalid or unenforceable, the remainder of
this Agreement and application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provision.
43. AGGREGATION OF STOCK.
All shares of Registrable Securities held or acquired by affiliated
entities or any Stockholder shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
44. FURTHER ASSURANCES.
Each party agrees to cooperate fully with the other parties and to
execute such further instruments, documents and agreements and to give such
further written assurances as may be reasonably requested by any other party to
evidence and reflect the transactions described herein and contemplated hereby
and to carry into effect the intents and purposes of this Agreement.
45. CAPTIONS.
Captions are for convenience only and are not deemed to be part of this
Agreement.
46. COUNTERPARTS.
Exhibit 6-6
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
47. NO INCONSISTENT AGREEMENTS.
The Company shall not, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
Other than as disclosed on SCHEDULE A attached hereto, the Company has
not previously entered into any agreement with respect to its securities
granting any "piggy back" registration rights to any Person. The Company
represents and warrants to each of the Holders of Registrable Securities that,
except as set forth in this Agreement or on SCHEDULE B attached hereto, as of
the date hereof, there are no outstanding "demand" registration rights with
respect to the Company's securities. The rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any such agreements.
48. FORMS.
All references in this Agreement to particular forms of Registration
Statements are intended to include all successor forms which are intended to
replace, or to apply to similar transactions as, the forms herein referenced.
* * * * *
(Signatures on following pages)
Exhibit 6-7
IN WITNESS WHEREOF, the parties hereto have executed this Co-Sale
Agreement as of the day and year first above written.
LUXTEC CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive
Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
GE Capital Equity Investments, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit 6-8
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ IV L.P.
By: Its General Partner
CSHB Ventures IV L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
BAM Enterprises, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit 6-9
Webbmont Holdings, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President of General Partner
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Investors Equity, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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---------------------------------
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
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Exhibit 6-10
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Geneva Middle Market Investors, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit 6-11