EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of March
2, 2001, is 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, the Company is a party to that certain Agreement and Plan of
Merger entered into as of 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"), pursuant to which the Company
will issue shares of its Series B Preferred Stock, shares of its Series C
Preferred Stock and shares of its Series D Preferred Stock to certain of PSS's
stockholders;
WHEREAS, in order to induce certain of the Stockholders to approve the
Merger Agreement, the Company has agreed to provide the Stockholders certain
rights set forth in this Agreement;
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 the Second Amended
and Restated Stockholders' Agreement, (the "Second Amended and Restated
Stockholders' Agreement") and on January 23, 2001, PSS entered into the 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 transactions contemplated by the Merger Agreement will
benefit the Company;
WHEREAS, the Company desires to enter into that certain Amended and
Restated Loan and Security Agreement (the "Loan Agreement"), dated as of March
2, 2001, by and among the Company, certain of the Company's subsidiaries, and
Ark CLO 2000-1, Limited, in order to induce Ark CLO 2000-1, Limited to enter
into the Loan Agreement, the Company has agreed to provide the Ark CLO 2000-1,
Limited certain rights set forth in this Agreement;
WHEREAS, the transactions contemplated by the Loan Agreement will
benefit the Company; and
WHEREAS, the parties are willing to execute this Agreement and to be
bound by the provisions hereof;
Exhibit 5-1
NOW, THEREFORE, in consideration of the premises, the agreements set
forth below, and the parties' desire to further the interests of the Company and
its present and future stockholders, the parties agree as follows:
9. Certain Definitions.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Affiliate" means, with respect to a specified Person, (a) any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, (b) any other Person that
owns, directly or indirectly, five percent (5%) or more of such specified
person's capital stock, (c) any employee or director of such specified Person,
(d) any member of the family of any Person specified in clauses (a), (b), and
(c), or (e) any corporation, limited liability company, partnership, trust or
other entity in which any Person set forth in clauses (a), (b), (c) or (d)
above, or member of the family of any such Person, is a director, officer,
trustee, partner or holder of more than five percent (5%) of the outstanding
capital stock thereof. For the purposes of this definition, "control," when used
with respect to any specified person, means the power to direct the management
and policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Alternative Equity Financing Stock" shall mean the series of equity
security of the Company issued in any equity financing of the Corporation
subsequent to the date hereof that does not qualify as a Qualified Equity
Financing.
"Board of Directors" shall mean the Board of Directors of the Company.
"Claim" shall mean any loss, claim, damages, liability or expense
(including the reasonable costs of investigation and reasonable legal fees and
expenses).
"Common Stock" shall mean the Common Stock, par value $.01 per share,
of the Company.
"Demand Registration" shall mean a registration pursuant to Section 2
hereof.
"Equity Security" shall mean any capital stock of the Company or any
security convertible, with or without consideration, into any such stock, or any
security carrying any warrant or right to subscribe for or purchase any such
stock, or any such warrant or right.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as from
time to time amended.
"Firm Commitment Underwritten Offering" shall mean an offering in which
the
Exhibit 5-2
underwriters agree to purchase securities for distribution pursuant to a
Registration Statement under the Securities Act and in which the obligation of
the underwriters is to purchase all the securities being offered if any are
purchased.
"Future Preferred Stock" shall mean a series of preferred stock of the
Company conveying to its holders rights and obligations substantially similar to
those provided by the Company's Certificate of Designations for Series C
Preferred Stock, as issued at the Effective Time (as defined in the Merger
Agreement).
"Holder" shall mean the beneficial owner of a security. For all
purposes of this Agreement, the Company shall be entitled to treat the record
owner of a security as the beneficial owner of such security unless the Company
has been given written notice of the existence and identity of a different
beneficial owner. A Holder of Preferred Stock shall be deemed to be the Holder
of the Common Stock into which such Preferred Stock could be converted.
"Indemnified Holder" shall mean any Holder of Registrable Securities,
any officer, director, employee or agent of any such Holder and any Person who
controls any such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act.
"Junior Securities" means any class or series of the Company's capital
stock which ranks junior to the Series C Preferred Stock as to dividend
distributions or distributions upon the liquidation, winding up and dissolution
of the Company.
"Misstatement" shall mean an untrue statement of a material fact or an
omission to state a material fact required to be stated in a Registration
Statement or Prospectus or necessary to make the statements in a Registration
Statement, Prospectus or preliminary prospectus not misleading.
"Other Stockholders" shall mean the Stockholders other than the Series
C Stockholders.
"Person" shall mean a natural person, partnership, corporation,
business trust, association, joint venture or other entity or a government or
agency or political subdivision thereof.
"Piggyback Registration" shall mean a registration pursuant to Section
3 hereof.
"Preferred Stock" shall mean any shares of any series of preferred
stock other than the Series D Preferred Stock issued as of the date hereof or in
the future by the Company.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated
by reference in such prospectus.
"PSS Common Stock" shall mean the Common Stock, par value $0.001 per
share, of PrimeSource Surgical, Inc., as it existed prior to the Effective Time
(as defined in the Merger Agreement).
Exhibit 5-3
"PSS Preferred Stock" shall mean any series of Preferred Stock, par
value $0.001 per share, of Prime Source Surgical, Inc., as it existed prior to
the Effective Time (as defined in the Merger Agreement).
"Qualified Equity Financing" shall mean any equity financing of the
Company subsequent to the date hereof with gross proceeds in excess of
$10,000,000 less the aggregate stated liquidation value of all of the then
outstanding shares of Series C Preferred Stock.
"Qualified Equity Financing Stock" shall mean the series of equity
security of the Company issued in a Qualified Equity Financing.
"Registrable Securities" shall mean (a) the shares of Common Stock
issued or issuable upon conversion of the shares of Qualified Equity Financing
Stock, Future Preferred Stock or Alternative Equity Financing Stock issued in
exchange for the Series D Preferred Shares, (b) any securities issued or
issuable with respect to such Common Stock by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or reorganization, (c) any shares of Common Stock or securities
issued or issuable with respect to such Common Stock as provided in (b) above,
acquired by the Stockholders from the Company subsequent to the date hereof,
whether or not owned by the Stockholders at the time of a Registration;
provided, that any such share or other security shall be deemed to be
Registrable Securities only if and so long as it is a Transfer Restricted
Security (collectively, (a), (b) and (c) are referred to herein as the "Future
Registrable Securities"), (d) the shares of Common Stock issued or issuable upon
exercise of the Warrants (e) any securities issued or issuable with respect to
such Common Stock by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
reorganization, (f) any shares of Common Stock or securities issued or issuable
with respect to such Common Stock as provided in (e) above, acquired by the
Stockholders from the Company subsequent to the date hereof, whether or not
owned by the Stockholders at the time of a Registration; provided, that any such
share or other security shall be deemed to be Registrable Securities only if and
so long as it is a Transfer Restricted Security (collectively, (d), (e) and (f)
are referred to herein as the "Warrant Registrable Securities"), (g) the shares
of Common Stock issued or issuable upon conversion of the Series C Preferred
Stock, (h) any securities issued or issuable with respect to such Common Stock
by way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or reorganization, (i) any
shares of Common Stock or securities issued or issuable with respect to such
Common Stock as provided in (g) above acquired by the Series C Stockholders from
the Company subsequent to the date hereof, whether or not owned by the Series C
Stockholders at the time of a Registration; provided, that any such share or
other security shall be deemed to be Registrable Securities only if and so long
as it is a Transfer Restricted Security (collectively, (g), (h) and (i) are
referred to herein as the "Series C Registrable Securities"), (j) the shares of
Common Stock issuable or issued upon conversion of the Series B Preferred Stock
if such Series B Preferred Stock has been issued by the Company in exchange for
PSS Preferred Stock held by any of the Stockholders on February 3, 1998, (k) the
shares of Common Stock issued at the Effective Time in exchange for PSS Common
Stock held by any of the Stockholders on February 3, 1998, (l) any shares of
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or
Exhibit 5-4
in replacement of the shares referenced in (j) and (k) above, (m) the shares of
Common Stock issuable upon the exercise of that certain warrant of PSS, which
has been assumed by the Company pursuant to the Merger Agreement, dated February
3, 1998, issued to Citizens Bank of Massachusetts pursuant to the Warrant
Agreement of even date therewith, (n) the shares of Common Stock issuable upon
the exercise of those options, which have been assumed by the Company pursuant
to the Merger Agreement, to purchase PSS Common Stock, dated January 17, 1997,
held by ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), (o) the
shares of Common Stock issuable upon the exercise of those options, which have
been assumed by the Company pursuant to the Merger Agreement, to purchase PSS
Common Stock, dated January 30, 1998, held by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, (p) the shares of Common Stock issuable upon the exercise of any
warrants which have been assumed by the Company pursuant to the Merger
Agreement, issued to any guarantor in connection with the Credit Agreement dated
as of February 3, 1998, between the Company and Citizens Bank of Massachusetts
and (q) the shares of Common Stock issued or issuable upon exercise of that
certain warrant for the purchase of 100,000 shares of Common Stock, issued, on
March 2, 2001, by the Company to Ark CLO 2000-1 Limited; excluding in all cases
(j) through (q) above, however, any Registrable Securities sold by a Holder in a
transaction in which such Holder's rights under SECTION 11 are not assigned.
"Registration" shall mean a Demand Registration or a Piggyback
Registration.
"Registration Expenses" shall mean the out-of-pocket expenses of a
Registration, including:
(1) all registration and filing fees (including fees with
respect to filings required to be made with the
National Association of Securities Dealers);
(2) fees and expenses of compliance with securities or
blue sky laws (including fees and disbursements of
counsel for the underwriters or selling holders in
connection with blue sky qualifications of the
Registrable Securities and determinations of their
eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders
of a majority of the Registrable Securities being
sold may designate);
(3) printing, messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the Company and
of not more than one firm of attorneys for the
sellers of the Registrable Securities;
(5) expenses of the underwriters and fees and
disbursements of counsel for the underwriters, in
each case, to the extent required to be paid pursuant
to an underwriting agreement relating to a
Registration;
(6) fees and disbursements of all independent certified
public accountants of the Company incurred in
connection with such Registration (including the
Exhibit 5-5
expenses of any special audit and "cold comfort"
letters incident to such registration);
(7) premiums and other costs of securities acts liability
insurance if the Company so desires or if the
underwriters so require or selling holders of
Registrable Securities reasonably so require; and
(8) fees and expenses of any other Persons retained by
the Company.
"Registration Statement" shall mean any registration statement under
the Securities Act on an appropriate form (which form shall be available for the
sale of the Registrable Securities in accordance with the intended method or
methods of distribution thereof and shall include all financial statements
required by the SEC to be filed therewith) which covers Registrable Securities
pursuant to the provisions of this Agreement, including the Prospectus included
in such registration statement, amendments (including post-effective amendments)
and supplements to such registration statement, and all exhibits to and all
material incorporated by reference in such registration statement.
"Securities Act" shall mean the Securities Act of 1933, as from time to
time amended.
"SEC" shall mean the Securities and Exchange Commission.
"Series B Preferred Shares" shall mean shares of the Series B
Convertible Preferred Stock of the Company, par value $1.00 per share, held by
certain of the Stockholders.
"Series B Preferred Stock" shall mean the Series B Convertible
Preferred Stock of the Company issued pursuant to the Merger Agreement.
"Series B Stockholders" shall mean the Stockholders of the Series B
Preferred Stock.
"Series C Preferred Shares" shall mean shares of the Series C
Convertible Preferred Stock of the Company, $1.00 par value per share, held by
certain of the Stockholders.
"Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock of the Company issued pursuant to the Merger Agreement.
"Series C Stockholders" shall mean the Stockholders of the Series C
Preferred Stock.
"Series D Preferred Shares" shall mean shares of the Series D
Exchangeable Preferred Stock of the Company, $1.00 par value per share, held by
certain of the Stockholders.
"Series D Preferred Stock" shall mean the Series D Exchangeable
Preferred Stock of the Company issued pursuant to the Merger Agreement.
"Transfer Restricted Security" shall mean a security that has not been
sold to or through a broker, dealer or underwriter in a public distribution or
other public securities transaction or sold
Exhibit 5-6
in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Rule 144 promulgated thereunder (or any
successor rule). The foregoing notwithstanding, a security shall remain a
Transfer Restricted Security until all stop transfer instructions or notations
and restrictive legends with respect to such security have been lifted or
removed.
"Underwriters' Commissions" shall mean discounts of and commissions to
underwriters, selling brokers, dealer managers or similar securities
professionals relating to the distribution of the Registrable Securities.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which securities of the Company are sold to an underwriter for
distribution to the public.
"Unit Purchase Agreement" shall mean the Unit Purchase Agreement dated
as of January 23, 2001, by and among PSS and stockholders named therein.
"Warrants" shall mean (i) the warrants, initially exercisable for PSS
Common Stock, issued pursuant to the Unit Purchase Agreement which have become
exercisable for Common Stock pursuant to the Merger Agreement (ii) the warrants
issued to Geneva Middle Market Investors, L.P. pursuant to an agreement, dated
February 9, 2001, between the Company and Geneva Middle Market Investors, L.P.
10. DEMAND REGISTRATIONS.
(a) TIMING OF DEMAND REGISTRATIONS. At any time after the date
hereof, upon the earlier to occur of (1) June 14, 2002 or (2) the effective date
of a Registration Statement relating to a public offering of the Company's
Common Stock, the Series C Stockholders (on behalf of themselves and all
permitted assignees who are Series C Stockholders) of at least 50% of the Series
C Registrable Securities may request at any time that the Company file a
Registration Statement under the Securities Act on an appropriate form (which
form shall be available for the sale of the Registrable Securities in accordance
with the intended method or methods of distribution thereof and shall include
all financial statements required by the SEC to be filed therewith) covering the
shares of Series C Registrable Securities that are the subject of such request.
(b) NUMBER OF DEMAND REGISTRATIONS; REQUIRED THRESHOLD. The
Company shall be obligated to prepare, file and use its best efforts to cause to
become effective pursuant to this Section 2 no more than two (2) Registration
Statements in the aggregate for the Series C Stockholders of Series C
Registrable Securities (on behalf of each of them and all permitted assignees
who are Series C Stockholders of Series C Registrable Securities); provided,
however, that a Registration Statement shall not be counted as one of the two
(2) Demand Registrations hereunder unless (1) it becomes effective and is
maintained effective in accordance with the requirements specified in SECTION
5(a) or (2) it is filed on a Form S-3 Registration Statement under the
Securities Act. The Company shall be obligated to prepare, file and use its best
efforts to cause to become effective pursuant to this Section 2 up to two
Registration Statements on Form S-3 per year, subject to Section 2(a).
Exhibit 5-7
(c) PARTICIPATION. The Company shall promptly give written
notice to all Series C Stockholders of Series C Registrable Securities, and all
Stockholders of Future Registrable Securities and Warrant Registrable
Securities, upon receipt of a request for a Demand Registration pursuant to
Section 2(a) above. In addition, the Company shall include in such Demand
Registration such shares of Series C Registrable Securities, Future Registrable
Securities and Warrant Registrable Securities for which it has received written
requests to register such shares within twenty (20) calendar days after such
written notice has been given. The Series C Stockholders of Series C Registrable
Securities exercising a Demand Registration request and the Stockholders of
Future Registrable Securities and Warrant Registrable Securities participating
in a Demand Registration shall receive priority with respect to the number of
shares to be included in a Registration Statement.
(d) UNDERWRITER'S CUTBACK. If the public offering of
Registrable Securities is to be underwritten and, in the good faith judgment of
the managing underwriter, the inclusion of all the Series C Registrable
Securities, all the Future Registrable Securities and all the Warrant
Registrable Securities requested to be registered hereunder would interfere with
the successful marketing of a smaller number of such shares of Series C
Registrable Securities, Future Registrable Securities and Warrant Registrable
Securities, the number of shares of Series C Registrable Securities, Future
Registrable Securities and Warrant Registrable Securities, to be included shall
be reduced to such smaller number with the participation in such offering to be
PRO RATA among the Series C Stockholders of Series C Registrable Securities and
the Stockholders of Future Registrable Securities and Warrant Registrable
Securities requesting such registration, based upon the number of shares of
Series C Registrable Securities, Future Registrable Securities and Warrant
Registrable Securities, owned by such Stockholders.
Any shares of Series C Registrable Securities, Future Registrable
Securities and Warrant Registrable Securities that are thereby excluded from the
offering shall be withheld from the market by the Series C Stockholders and
Unitholders thereof for a period (not to exceed thirty (30) calendar days prior
to the effective date and one hundred eighty (180) calendar days thereafter) for
the Company's first public offering or not to exceed ninety (90) calendar days
thereafter for the Company's subsequent Underwritten Offerings that the managing
underwriter reasonably determines is reasonably necessary in order to
successfully market the securities to be offered in such offerings; provided,
that all officers, directors and employees of the Company are similarly bound.
The Company and, subject to the requirements of Section 11 hereof,
other holders of securities of the Company may include such securities in such
Registration if, but only if, the managing underwriter concludes that such
inclusion will not interfere with the successful marketing of all the Series C
Registrable Securities, Future Registrable Securities and Warrant Registrable
Securities requested to be included in such registration.
(e) MANAGING UNDERWRITER. The managing underwriter or
underwriters of any Underwritten Offering covered by a Demand Registration shall
be selected by GE Capital Equity Investments, Inc. ("GE") (if GE owns a majority
of the shares of Common Stock to be offered
Exhibit 5-8
therein), subject to the approval of the Board of Directors, which approval
shall not be unreasonably withheld.
11. PIGGYBACK REGISTRATIONS.
(a) SERIES C PARTICIPATION. Each time the Company decides to
file a Registration Statement under the Securities Act (other than registrations
on Forms S-4 or S-8 or any successor form thereto, and other than a Demand
Registration) covering the offer and sale by it or any of its security holders
of any of its securities for money, the Company shall give written notice
thereof to all Series C Stockholders of Series C Registrable Securities, and the
Stockholders of Future Registrable Securities or Warrant Registrable Securities.
The Company shall include in such Registration Statement such shares of Series C
Registrable Securities, Future Registrable Securities and Warrant Registrable
Securities for which it has received written requests to register such shares
within twenty (20) calendar days after such written notice has been given. If
the Registration Statement is to cover an Underwritten Offering, such Series C
Registrable Securities, Future Registrable Securities and Warrant Registrable
Securities shall be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters.
(b) OTHER STOCKHOLDERS' PARTICIPATION. If (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for stockholders of the Company
other than the Stockholders) any of its stock or other securities under the
Securities Act in connection with the public offering of such securities solely
for cash (other than (i) a registration relating solely to the sale of
securities to participants in a Company stock option or stock issuance plan,
(ii) a registration in which the only Common Stock being registered is Common
Stock issuable upon conversion of debt securities which are also being
registered, or (iii) the Company's first public offering of its Common Stock
subsequent to the date hereof) the Company shall, at such time, promptly give
each Other Stockholder written notice of such registration. Upon the written
request of each Other Stockholder given within twenty (20) calendar days after
receipt of such notice by the Company in accordance with Section 15, the Company
shall, subject to the provisions of Section 3(c), cause to be registered under
the Act all of the Registrable Securities that each such Other Stockholder has
requested to be registered.
(c) UNDERWRITER'S CUTBACK. Subject to the requirements of
Section 10 hereof, if in the good faith judgment of the managing underwriter of
such offering the inclusion of all of the shares of Registrable Securities and
any other shares of Common Stock requested to be registered would interfere with
the successful marketing of a smaller number of such shares, then the number of
shares of Registrable Securities and other shares of Common Stock to be included
in the offering shall be reduced to such smaller number with the participation
in such offering to be in the following order of priority: (1) first, the shares
of Common Stock which the Company proposes to sell for its own account, (2)
second, the shares of Series C Registrable Securities of all Series C
Stockholders of Series C Registrable Securities and the Future Registrable
Securities and Warrant Registrable Securities of all Stockholders requested to
be included, (3) third, the shares of Registrable Securities of Other
Stockholders requested to be included, and (4) fourth, any other shares of
Common Stock requested to be included. Any necessary allocation among
Exhibit 5-9
the Holders of shares within each of (2), (3) and (4) above shall be pro rata
among such Holders requesting such registration based upon the number of shares
of Common Stock and Registrable Securities owned by such Holders.
All shares so excluded from the Underwritten Offering shall be withheld
from the market by the Holders thereof for a period (not to exceed thirty (30)
calendar days prior to the effective date and one hundred eighty (180) calendar
days thereafter for the Company's first public offering subsequent to the date
hereof or not to exceed ninety (90) calendar days thereafter for the Company's
subsequent Underwritten Offerings) that the managing underwriter reasonably
determines is reasonably necessary in order to successfully market the
securities to be offered in such offering.
(d) COMPANY CONTROL. The Company may withdraw a Registration
Statement after filing and after giving notice to the Holders of Registrable
Securities pursuant to Section 3(a) above, but prior to the effectiveness
thereof; provided, that the Company shall promptly notify each Holder of
Registrable Securities in writing of any such action and, provided further, that
the Company shall bear all expenses incurred by each such Holder or otherwise in
connection with such withdrawn Registration Statement.
12. HOLD-BACK AGREEMENTS.
(a) BY HOLDERS OF REGISTRABLE SECURITIES. Upon the written
request of the managing underwriter of any Underwritten Offering of the
Company's securities, a Holder of Registrable Securities shall not sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included in such
registration) without the prior written consent of such managing underwriter for
a period (not to exceed thirty (30) calendar days before the effective date and
one hundred eighty (180) calendar days for the Company's first public offering
subsequent to the date hereof or ninety (90) calendar days thereafter for the
Company's subsequent Underwritten Offerings) that such managing underwriter
reasonably determines is necessary in order to effect such offerings; provided,
that each of the officers, directors and key employees of the Company shall have
entered into substantially similar holdback agreements with such managing
underwriter covering at least the same period.
(b) BY THE COMPANY AND OTHERS. The Company agrees:
not to effect any public or private sale or distribution of its Equity
Securities during the thirty (30) calendar day period prior to, and during the
sixty (60) calendar day period after, the effective date of each Underwritten
Offering made pursuant to a Demand Registration or a Piggyback Registration, if
so requested in writing by the managing underwriter (except as part of such
Underwritten Offering, pursuant to registrations on Forms S-4 or S-8 or any
successor forms thereto or private issuances of Equity Securities as
consideration for any acquisition by the Company or a subsidiary of assets or
capital stock of any unaffiliated third party), and
not to issue any Equity Securities other than for sale in a registered
public offering unless each of the Persons to which such securities are issued
has entered a written agreement binding
Exhibit 5-10
on its transferees not to effect any public sale or distribution of such
securities (except for employee stock options issued to Persons other than:
directors, officers, key employees; or stockholders owning five percent (5%) or
more of the Company's Equity Securities) during such period, including without
limitation a sale pursuant to Rule 144 under the Securities Act (except as part
of such Underwritten Registration, if and to the extent permitted hereunder).
13. REGISTRATION PROCEDURES.
If and whenever the Company is required to register Registrable
Securities in a Demand Registration, the Company will use all commercially
reasonable efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended plan of distribution
thereof. With respect to both Demand Registrations and Piggyback Registrations
(except as otherwise specifically provided), the Company will as expeditiously
as practicable:
(a) prepare and file with the SEC as soon as practicable a
Registration Statement with respect to such Registrable Securities and use all
commercially reasonable efforts to cause such Registration Statement to become
effective and remain continuously effective until the date that is the earlier
to occur of (1) the date six months from the date such Registration Statement
was declared effective, and (2) the date the last of the Registrable Securities
covered by such Registration Statement have been sold, provided, that before
filing a Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to Holders of Registrable Securities covered
by such Registration Statement and the underwriters, if any, draft copies of all
such documents proposed to be filed, which documents will be subject to the
review of such Holders and such underwriters, and the Company shall not file any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto to which any of the Holders or the underwriters, if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement, and such supplements to
the Prospectus, as may be requested by any underwriter of Registrable Securities
or as may be required by the rules, regulations or instructions applicable to
the registration form used by the Company or by the Securities Act or rules and
regulations thereunder to keep the Registration Statement effective until all
Registrable Securities covered by such Registration Statement are sold in
accordance with the intended plan of distribution set forth in such Registration
Statement or supplement to the Prospectus;
(c) promptly notify the selling Holders of Registrable
Securities and the managing underwriter, if any, and (if requested by any such
Person) confirm such advice in writing:
when the Prospectus or any supplement or post-effective amendment has
been filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective,
of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional information,
Exhibit 5-11
of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose,
if at any time the representations and warranties of the Company
contemplated by clause (1) of paragraph (o) below cease to be accurate in all
material respects,
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and
of the existence of any fact which results in the Registration
Statement, the Prospectus or any document incorporated therein by reference
containing a Misstatement;
(d) make all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest practicable time;
(e) unless the Company objects in writing on reasonable
grounds, if requested by the managing underwriter or the Holders of more than
50% of the Registrable Securities then outstanding, each of such Holders (on
behalf of itself and all permitted assignees who are Holders of Registrable
Securities), as promptly as practicable, incorporate in a supplement or
post-effective amendment, such information as the managing underwriter and the
Holders of Registrable Securities agree should be included therein relating to
the sale of the Registrable Securities, including, without limitation,
information with respect to the number of shares of Registrable Securities being
sold to underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the Underwritten Offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such supplement or post-effective amendment as soon as notified of
the matters to be incorporated in such supplement or post-effective amendment;
(f) only with respect to Demand Registrations, promptly prior
to the filing of any document which is to be incorporated by reference into the
Registration Statement or the Prospectus (after initial filing of the
Registration Statement) provide copies of such document to counsel to each of
the Holders of Registrable Securities (on behalf of itself and all permitted
assignees who are Holders of Registrable Securities) and to the managing
underwriter, if any, and make the Company's representatives available for
discussion of such document and make such changes in such document prior to the
filing thereof as counsel for the Holders of Registrable Securities or
underwriters may reasonably request;
(g) furnish to each selling Holder of Registrable Securities
and the managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(h) deliver to each of the Holders of Registrable Securities
(on behalf of each selling Holder of Registrable Securities) and the
underwriters, if any, without charge, as many
Exhibit 5-12
copies of each Prospectus (and each preliminary prospectus) as such Persons may
reasonably request (the Company hereby consenting to the use of each such
Prospectus (or preliminary prospectus) by each of the selling Holders of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus (or
preliminary prospectus));
(i) prior to any public offering of Registrable Securities,
use all commercially reasonable efforts to register or qualify or coordinate
with the selling Holders of Registrable Securities, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as such Holders, or such
underwriters may designate in writing and do anything else necessary or
advisable to enable from a legal perspective the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement;
(j) cooperate with the selling Holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold and cause such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriter may request at least three (3) business days prior to any
sale of Registrable Securities to the underwriters;
(k) use all commercially reasonable efforts to cause the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities;
(l) if the Registration Statement or the Prospectus contains a
Misstatement, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, the Prospectus will
not contain a Misstatement;
(m) use all commercially reasonable efforts to cause all
Registrable Securities covered by the Registration Statement to be listed on any
national securities exchange on which the Company's securities are listed or
authorized for quotation on Nasdaq, if requested by any of the Holders (on
behalf of each Holder and all permitted assignees who are Holders of Registrable
Securities) or the managing underwriter, if any; provided, however, that the
payment of any required listing or other fee shall always be deemed to be
"commercially reasonable" for purposes of this Section 5(m);
(n) provide a CUSIP number for all Registrable Securities not
later than the effective date of the Registration Statement;
(o) enter into such agreements (including an underwriting
agreement) and do anything else reasonably necessary or advisable in order to
expedite or facilitate the disposition
Exhibit 5-13
of such Registrable Securities, and in such connection, whether or not the
registration is an Underwritten Registration:
make such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to holders and underwriters,
respectively, in similar Underwritten Offerings;
obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriter, if any, and each of such Holders (on
behalf of itself and all permitted assignees who are Holders of Registrable
Securities)) addressed to each selling Holder of Registrable Securities and the
underwriter, if any, covering the matters customarily covered in opinions
delivered to holders and underwriters, respectively, in similar Underwritten
Offerings and such other matters as may be reasonably requested any of the
Holders or such underwriters;
obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the selling Holders of
Registrable Securities and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters to holders and underwriters, respectively, in connection with
similar Underwritten Offerings;
if an underwriting agreement is entered into, cause the same to include
customary indemnification and contribution provisions and procedures with
respect to such underwriters; and
deliver such documents and certificates as may be reasonably requested
by each of the Holders of Registrable Securities (on behalf of itself and all
permitted assignees who are Holders of Registrable Securities) and the managing
underwriter, if any, to evidence compliance with clause (1) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company.
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent otherwise reasonably requested by each of the
Holders of Registrable Securities (on behalf of itself and all permitted
assignees who are Holders of Registrable Securities);
(p) make available for inspection by representatives of each
of the Holders of Registrable Securities (on behalf of itself and all permitted
assignees who are Holders of Registrable Securities), any underwriter
participating in any disposition pursuant to such Registration Statement, and
any attorney or accountant retained by the sellers or any such underwriter, all
financial and other records and pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such seller or underwriter in
connection with the Registration; provided, that any records, information or
documents that are designated by the Company in writing as confidential shall be
kept confidential by such Persons unless disclosure of such records, information
or documents is required by court or administrative order; and
Exhibit 5-14
(q) otherwise use all commercially reasonable efforts to
comply with all applicable rules and regulations of the SEC relating to such
Registration, and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act, no
later than forty-five (45) calendar days after the end of any twelve (12) month
period (or ninety (90) calendar days, if such period is a fiscal year)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in an Underwritten Offering, or, if not sold to
underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 12-month period.
14. REGISTRATION EXPENSES.
(a) DEMAND REGISTRATIONS. The Company shall bear all
Registration Expenses incurred in connection with any Demand Registration and of
any Registration which does not become or is not maintained effective in
accordance with the requirements specified in Section 5(a) other than any
Registration terminated prior to effectiveness at the request of, or primarily
as a result of, the actions of Holders whose Registrable Securities are included
in such registration. Notwithstanding the foregoing, the Underwriters'
Commissions incurred in connection with a Demand Registration that becomes
effective shall be shared by the Holders of the Registrable Securities whose
Registrable Securities are included in such Registration pro rata, in accordance
with the aggregate amount of Registrable Securities sold by such Holders.
(b) PIGGYBACK REGISTRATIONS. The Company shall bear all
Registration Expenses incurred in connection with any Piggyback Registrations.
Notwithstanding the foregoing, the Underwriters' Commissions incurred in
connection with a Piggyback Registration that becomes effective shall be shared
by the Holders of the Registrable Securities whose Registrable Securities are
included in such Registration pro rata, in accordance with the aggregate amount
of Registrable Securities sold by such Holders.
(c) COMPANY EXPENSES. The Company also will, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit, the fees and expenses incurred in connection with
any listing of the securities to be registered on a securities exchange, and the
fees and expenses of any Person, including special experts, retained by the
Company.
15. INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. The Company agrees to
indemnify and hold harmless each Indemnified Holder from and against all Claims
arising out of or based upon any Misstatement or alleged Misstatement, except
insofar as such Misstatement or alleged Misstatement was based upon information
furnished in writing to the Company by such Indemnified Holder expressly for use
in the document containing such Misstatement or alleged Misstatement. This
indemnity shall not be exclusive and shall be in addition to any liability which
the Company may otherwise have.
The foregoing notwithstanding, the Company shall not be liable
to the extent that
Exhibit 5-15
any such Claim arises out of or is based upon a Misstatement or alleged
Misstatement made in any preliminary prospectus if (1) such Indemnified Holder
failed to send or deliver a copy of the Prospectus with or prior to the delivery
of written confirmation of the sale of Registrable Securities giving rise to
such Claim and (2) the Prospectus would have corrected such untrue statement or
omission.
In addition, the Company shall not be liable to the extent
that any such Claim arises out of or is based upon a Misstatement or alleged
Misstatement in a Prospectus, (3) if such Misstatement or alleged Misstatement
is corrected in an amendment or supplement to such Prospectus and (4) having
previously been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such Indemnified Holder thereafter
fails to deliver such Prospectus as so amended or supplemented prior to or
concurrently with the sale to the person who purchased a Registrable Security
from such Indemnified Holder and who is asserting such Claim.
The Company shall also provide customary indemnifications to
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in a distribution covered by a Registration
Statement, their officers and directors and each Person who controls such
Persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act).
(b) INDEMNIFICATION PROCEDURES. If any action or proceeding
(including any governmental investigation or inquiry) shall be brought or
asserted against an Indemnified Holder in respect of which indemnity may be
sought from the Company, such Indemnified Holder shall promptly notify the
Company in writing, and the Company may assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Holder and
the payment of all expenses.
Such Indemnified Holder shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such separate counsel shall be at the expense of
such Indemnified Holder unless (1) the Company has agreed to pay such fees and
expenses, (2) the Company shall have failed to assume the defense of such action
or proceeding or has failed to employ counsel reasonably satisfactory to such
Indemnified Holder in any such action or proceeding, or (3) the named parties to
any such action or proceeding (including any impleaded parties) include both
such Indemnified Holder and the Company, and such Indemnified Holder shall have
been advised in writing by counsel that there may be one or more legal defenses
available to such Indemnified Holder that are different from or additional to
those available to the Company.
If such Indemnified Holder notifies the Company in writing
that it elects to employ separate counsel at the expense of the Company as
permitted by the provisions of the preceding paragraph, the Company shall not
have the right to assume the defense of such action or proceeding on behalf of
such Indemnified Holder. The foregoing notwithstanding, the Company shall not be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for such Indemnified Holder and any other Indemnified
Holders (which firm shall be designated in writing by such Indemnified Holders)
in connection with any one
Exhibit 5-16
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances.
The Company shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled with
its written consent, or if there be a final judgment for the plaintiff in any
such action or proceeding, subject to Section 7(a), the Company agrees to
indemnify and hold harmless such Indemnified Holders from and against any loss
or liability by reason of such settlement or judgment.
(c) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each
Holder of Registrable Securities agrees to indemnify and hold harmless the
Company, its directors and officers and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Holder, but only with respect to information relating to such
Holder furnished in writing by such Holder expressly for use in any Registration
Statement, Prospectus or preliminary prospectus. In no event, however, shall the
liability hereunder of any selling Holder of Registrable Securities be greater
than the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation.
In case any action or proceeding shall be brought against the
Company or its directors or officers or any such controlling person, in respect
of which indemnity may be sought against a Holder of Registrable Securities,
such Holder shall have the rights and duties given the Company and the Company
or its directors or officers or such controlling person shall have the rights
and duties given to each such Holder by Sections 7(a) and 7(b) above. The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under Section 7(a) or Section
7(c) above (other than by reason of exceptions provided in those Sections) in
respect of any Claims referred to in such Sections, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Claims in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and of the Holder of Registrable Securities
on the other in connection with the statements or omissions which resulted in
such Claims as well as any other relevant equitable considerations. The amount
paid or payable by a party as a result of the Claims referred to above shall be
deemed to include, subject to the limitations set forth in Section 7(b), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The relative fault of the Company on the one hand and of the
Holder of Registrable Securities on the other shall be determined by reference
to, among other things, whether the Misstatement or alleged Misstatement relates
to information supplied by the
Exhibit 5-17
Company or by the Holder of Registrable Securities and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Misstatement or alleged Misstatement.
The Company and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this Section
7(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), an
Indemnified Holder shall not be required to contribute any amount in excess of
the amount by which (1) the total price at which the securities that were sold
by such Indemnified Holder and distributed to the public were offered to the
public exceeds (2) the amount of any damages which such Indemnified Holder has
otherwise been required to pay by reason of such Misstatement. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
16. REQUIREMENTS FOR PARTICIPATION IN UNDERWRITTEN OFFERINGS.
No Person may participate in any Underwritten Offering pursuant to a
Registration hereunder unless such Person (a) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements, and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
17. SUSPENSION OF SALES.
Upon receipt of written notice from the Company that (a) a Registration
Statement or Prospectus contains a Misstatement, or (b) in the reasonable
determination of the Company, there exist circumstances not yet disclosed to the
public which would be required to be disclosed in such Registration Statement
and the disclosure of which would be materially harmful to the Company, each
Holder of Registrable Securities shall forthwith discontinue disposition of
Registrable Securities until such Holder has received copies of the supplemented
or amended Prospectus required by Section 5(l) hereof, or until such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and, if so directed by the Company, such Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. The Company shall use all
commercially reasonable efforts to minimize the length of such suspension of
sales, provided, that the Company may require the suspension of sales for a
period of ninety (90) calendar days in the event that the disclosure of any
circumstances, in the reasonable determination of the Company, would be harmful
in any material respect to the Company. In no event, however, shall the
aggregate period of time that the Company postpones the filing or declaration of
effectiveness of any Registration Statement pursuant to Section 5 above, or
suspends sales of Registrable Securities pursuant to this Section 9 under any
Registration Statement, taken together
Exhibit 5-18
with all such other periods with respect to such Registrations Statement exceed,
in the aggregate, ninety (90) calendar days.
18. FUTURE REGISTRATION RIGHTS AGREEMENTS.
Except for an underwriting agreement between the Company and one or
more professional underwriters of securities, the Company shall not agree to
register any Equity Securities, other than Junior Securities, under the
Securities Act unless such agreement specifically provides that:
(a) the Holder of such Equity Securities may not participate
in any Demand Registration without the consent of each of the Series C
Stockholders unless:
the offering of the Registrable Securities is to be a Firm Commitment
Underwritten Offering and the managing underwriter concludes that the public
offering or sale of such Equity Securities would not interfere with the
successful marketing of all Series C Registrable Securities requested to be
sold, and
the Series C Stockholders of Series C Registrable Securities shall have
the right to participate, to the extent they may request, in any Registration
Statement initiated under a Demand Registration right exercised by any of the
Series C Stockholders of Series C Registrable Securities (if the Series C
Stockholders of Series C Registrable Securities in the aggregate hold more than
50% of the Series C Registrable Securities then outstanding), except that if the
managing underwriter of a public offering made pursuant to such a Demand
Registration limits the number of shares of Common Stock to be sold, the
participation of the Series C Stockholders of the Series C Registrable
Securities and the Holders of all other shares of Common Stock (other than the
Equity Securities held by such Holder of Equity Securities) shall be determined
as set forth in Section 2 hereof,
(b) the Holder of such Equity Securities may not participate
in any Piggyback Registration if the sale of Registrable Securities is to be
underwritten unless, if the managing underwriter limits the total number of
shares to be sold, the Holders of such Equity Securities and the Series C
Stockholders of Series C Registrable Securities are entitled to participate in
such underwritten distribution based on the order of priority set forth in
Section 3 hereof, and
(c) all Equity Securities excluded from any Registration as a
result of the foregoing limitations may not be publicly offered or sold for a
period (not to exceed at least thirty (30) calendar days prior to the effective
date and sixty (60) calendar days thereafter) that the managing underwriter
reasonably determines is necessary in order to effect the Underwritten Offering
of Registrable Securities registered pursuant to this Agreement.
19. ASSIGNMENT AND TRANSFER OF REGISTRATION RIGHTS.
(a) RESTRICTIONS ON TRANSFER; TRANSFEREE OBLIGATIONS. No
Stockholder may transfer, assign, sell or otherwise dispose of Registrable
Securities unless such transfer is (i) made pursuant to an effective
registrations statement under the Securities Act; or (ii) is exempt
Exhibit 5-19
from registration under the Securities Act and exempt from qualification under
any applicable state and foreign securities laws. Should a Stockholder propose
to transfer Registrable Securities pursuant to clause (ii), such Stockholder
shall deliver to the Company an opinion of counsel reasonably satisfactory to
the Company stating that such transfer is exempt from registration under the
Securities Act and exempt from qualification under applicable state and foreign
securities laws.
Each person (other than the Company) to whom the Registrable
Securities are transferred must, as a condition precedent to the validity of
such transfer, acknowledge in writing to the Company that such person is bound
by the provisions of this Agreement and that the transferred Registrable
Securities are subject to the Hold-Back provisions of Section 4, each as
specified therein, to the same extent such Registrable Securities would be so
subject if retained by the Stockholder transferring such Registrable Securities.
(b) ASSIGNMENT OF REGISTRATION RIGHTS. Subject to any
restrictions on transfer under applicable law and pursuant to other agreements,
the rights to cause the Company to register Registrable Securities pursuant to
this Section 11 may be assigned (but only with all related obligations) by an
Other Stockholder to a transferee or assignee of such securities who, after such
assignment or transfer, holds at least Two Hundred Fifty Thousand (250,000)
shares of Registrable Securities (as appropriately adjusted for stock splits,
stock dividends, combinations and other recapitalizations subsequent to the date
hereof); provided, that: (i) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (ii) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including, without limitation, the provisions of Section 4; and (iii)
such assignment shall be effective only if immediately following such transfer
the further disposition of such securities by the transferee or assignee is
restricted under the Act. For purposes of determining the number of shares of
Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership; provided, that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under this Section 11.
20. TERMINATION OF REGISTRATION RIGHTS.
No Other Stockholder shall be entitled to exercise any right
provided for in this Agreement after two (2) years following the consummation of
the sale of securities pursuant to a registration statement filed by the Company
under the Act in connection with the first firm commitment underwritten public
offering of its Common Stock to the general public subsequent to the date of
this Agreement. In addition, the right of any Holder to request inclusion in any
registration pursuant to Section 3 shall terminate on the closing of the first
Company-initiated registered public offering of Common Stock of the Company
subsequent to the date of this Agreement if all shares of Registrable Securities
held or entitled to be held upon conversion of
Exhibit 5-20
any securities by such Holder may immediately be sold under Rule 144 during any
ninety (90) day period, or on such date after the closing of the first
Company-initiated registered public offering of Common Stock of the Company
subsequent to the date of this Agreement as all shares of Registrable Securities
held or entitled to be held upon conversion by such Holder may immediately be
sold under Rule 144 during any ninety (90) day period.
21. SPECIFIC ENFORCEMENT.
Each Stockholder and the Company expressly agree that the Stockholders
will be irreparably damaged if this Agreement is not specifically enforced. Upon
a breach or threatened breach of the terms, covenants and/or conditions of this
Agreement by a Stockholder or the Company, the other Stockholders shall, in
addition to all other remedies, be entitled to a temporary or permanent
injunction, without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions hereof.
22. LEGEND.
Each certificate evidencing shares of the Company's Common Stock and
Preferred Stock that are subject to this Agreement shall bear a legend
substantially as follows:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, or any state securities law, and may not be
offered, sold, transferred or otherwise disposed of unless registered under the
Securities Act of 1933, as amended, and nay applicable state securities laws, or
an exemption from such registration is available.
The securities represented hereby are subject to the terms and
conditions of a certain Registration Rights Agreement dated as of March 2, 2001,
a copy of which the Company will furnish to the holder of this certificate upon
request and without charge."
23. 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 of Registrable Securities 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
Exhibit 5-21
(c) if to the Company, initially at its 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. The
Company shall promptly provide a list of the most current addresses of the
Stockholders given to it in accordance with the provisions hereof to any such
Stockholder for the purpose of enabling such Stockholder to communicate with
other such Stockholders in connection with this Agreement.
24. ENTIRE AGREEMENT AND AMENDMENTS.
(a) This Agreement, together with the Co-Sale Agreement dated
as of even date herewith, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes the Prior Agreements in
their entirety with respect to each party to such prior agreements other than
Walla. 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
execution 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
the Company and Stockholders owning at least eighty percent (80%) of the shares
owned by the Stockholders; PROVIDED, HOWEVER, that (i) 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.
25. 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, 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 specified
in Section 14.
26. EXPENSES.
If any action at law or in equity is necessary to enforce or interpret
the terms of this
Exhibit 5-22
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.
27. 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.
28. 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.
29. 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.
30. CAPTIONS.
Captions are for convenience only and are not deemed to be part of this
Agreement.
31. COUNTERPARTS.
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.
32. OTHER 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
Exhibit 5-23
to the Company's securities. Should the rights granted to the Holders of
Registrable Securities hereunder in any way conflict with the rights granted to
the holders of the Company's securities under any agreement listed on either
SCHEDULE A or SCHEDULE B, the provisions of such scheduled agreement shall be
controlling.
33. 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 page)
Exhibit 5-24
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
COMPANY:
Luxtec Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive
Officer
STOCKHOLDERS:
GE Capital Equity Investments, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ IV L.P.
By: Its General Partner
CSHB Ventures IV L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Exhibit 5-25
3700 East Columbia Street
▇▇▇▇▇▇▇▇▇▇▇ Business Park
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BAM Enterprises, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Business Park
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
3700 East Columbia Street
▇▇▇▇▇▇▇▇▇▇▇ Business Park
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit 5-26
Webbmont Holdings, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President of General Partner
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Investors Equity, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit 5-27
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Geneva Middle Market Investors, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Citizens Bank of Massachusetts
as successor in interest to State
Street Bank and Trust Company(1)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ark CLO 2000-1, Limited
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Principal
c/o Patriarch Partners, LLC,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-------------
(1) State Street Bank and Trust Company is a party to this Agreement solely
with respect to SECTIONS 1,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,
19,20,22,23,24 AND 25 only hereof.
Exhibit 5-28
PrimeSource Surgical, Inc.(2)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Business Park
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------
(2) PrimeSource Surgical, Inc. is a party to this Agreement solely with respect
to SECTION 16 only hereof.
Exhibit 5-29
SCHEDULE A
Registration Rights Agreement, dated June 3, 1996, between Luxtec
Corporation, a Massachusetts corporation, and the Persons identified therein.
SCHEDULE B
Registration Rights Agreement, dated June 3, 1996, between Luxtec Corporation, a
Massachusetts corporation, and the Persons identified therein.
Exhibit 5-30