EXHIBIT 4.3
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is amended and
restated as of June 28, 2001, by and among PrimeSource Healthcare, Inc., a
Massachusetts corporation (the "Company") and the persons listed as Stockholders
in the signature pages hereto (collectively, the "Stockholders" and
individually, a "Stockholder").
WHEREAS, on March 2, 2001, the Company entered into a Registration Rights
Agreement with the Stockholders set forth therein (the "Existing Registration
Rights Agreement");
WHEREAS, pursuant to that certain Unit Purchase Agreement, dated as of the
date hereof (the "Unit Purchase Agreement"), by and among the Company and the
investors listed on the signature pages thereto, the Company will issue shares
of Series E Preferred Stock and certain warrants exercisable for Common Stock;
WHEREAS, the transactions contemplated by the Unit Purchase Agreement will
benefit the Company; and
WHEREAS, the parties 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 the interests of the Company and its
present and future stockholders, the parties agree as follows:
1. 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.
"Agreement" shall have the meaning assigned in the preamble hereto.
"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.
"Bayley" shall have the meaning set forth in clause (r) of the definition
of "Registrable Securities" contained herein.
"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.
"Company" shall have the meaning assigned in the preamble hereto.
"Demand Registration" shall mean a registration pursuant to Section 2
hereof.
2
"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.
"Existing Registration Rights Agreement" shall have the meaning assigned in
the recitals hereto.
"Firm Commitment Underwritten Offering" shall mean an offering in which the
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).
"Future Registrable Securities" shall have the meaning set forth in clause
(c) of the definition of "Registrable Securities" contained herein.
"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.
3
"Other Stockholders" shall mean the Stockholders other than the Series C
Stockholders and the Series E 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 Registrable Securities" shall mean the Series C Registrable
Securities and the Series E Registrable Securities.
"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).
"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).
"PSS Unit Purchase Agreement" shall mean the Unit Purchase Agreement dated
as of January 23, 2001, by and among PSS and stockholders named therein.
"Qualified Equity Financing" shall mean any equity financing of the Company
subsequent to March 2, 2001 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 Security" or "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
4
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 March 2, 2001, 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 March 2, 2001,
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 March 2,
2001, 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 issued or issuable upon
conversion of the Series E Preferred Stock, (k) 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, (l) any shares of Common Stock or securities
issued or issuable with respect to such Common Stock as provided in (j) above
acquired by the Series E Stockholders from the Company subsequent to March 2,
2001, whether or not owned by the Series E 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, (j), (k) and (l) are referred to herein as the "Series E
Registrable Securities"), (m) shares of Common Stock issuable upon the exercise
of any options granted to GE (as defined below), (n) 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, (o) 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, (p) 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 in replacement of
5
the shares referenced in (n) and (o) above, (q) 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, (r) 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Bayley"), (s) 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (t) 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 (u) 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 (n) through (u) 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;
6
(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 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.
"Rooney" shall have the meaning set forth in clause (r) of the definition
of "Registrable Securities" contained herein.
"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 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.
7
"Series C Preferred Stock" shall mean the Series C Convertible Preferred
Stock of the Company issued pursuant to the Merger Agreement.
"Series C Registrable Securities" shall have the meaning set forth in
clause (i) of the definition of "Registrable Securities" contained herein.
"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.
"Series E Preferred Shares" shall mean shares of the Series E Convertible
Preferred Stock of the Company, no par value per share, held by certain of the
Stockholders.
"Series E Preferred Stock" shall mean the Series E Convertible Preferred
Stock of the Company issued pursuant to the Unit Purchase Agreement.
"Series E Registrable Securities" shall have the meaning set forth in
clause (l) of the definition of "Registrable Securities" contained herein.
"Series E Stockholders" shall mean the Stockholders of the Series E
Preferred Stock.
"Stockholder" shall have the meaning assigned in the preamble hereto.
"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 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.
8
"Unit Purchase Agreement" shall have the meaning assigned in the recitals
hereto.
"Warrant Registrable Securities" shall have the meaning set forth in clause
(f) of the definition of "Registrable Securities" contained herein.
"Warrants" shall mean (i) the warrants, initially exercisable for PSS
Common Stock, issued pursuant to the PSS 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.; and (iii) the warrants issued pursuant to the Unit Purchase
Agreement to the parties named therein.
2. 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 holders of at least 50% of the Preferred Registrable Securities (on
behalf of themselves and all permitted assignees who are holders of Preferred
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 Preferred 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 holders of Preferred Registrable Securities
(on behalf of each of them and all permitted assignees who are holders of
Preferred Registrable Securities); provided, however, that a Registration
Statement shall not be counted as one of the two (2) Demand Registrations
hereunder of such holders of Preferred Registrable Securities 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 Form S-3 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 (2)
Registration Statements on Form S-3 per year, subject to Section 2(a).
(c) PARTICIPATION. The Company shall promptly give written notice to
all holders of Preferred Registrable Securities and all Stockholders of Future
Registrable Securities and Warrant Registrable Securities, upon receipt of a
9
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, Series E 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 holders of Preferred 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; provided, that such participation may be
limited in the good faith judgment of the managing underwriter in an
underwritten public offering in accordance with Section 2(d) below.
(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
Series E 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, Series E Registrable Securities, Future
Registrable Securities and Warrant Registrable Securities, then the number of
shares of Series C Registrable Securities, Series E Registrable Securities,
Future Registrable Securities and Warrant Registrable Securities, to be included
shall be reduced to such smaller number, with the reduction in participation in
such offering to be borne (i) first, by the Series C Stockholders of Series C
Registrable Securities until, if necessary, no Series C Registrable Securities
are included in such Registration and (ii) second, by the Series E Stockholders
of Series E Registrable Securities and the Stockholders of Future Registrable
Securities and Warrant Registrable Securities requesting such registration pro
rata based upon the number of shares of Series E Registrable Securities, Future
Registrable Securities and Warrant Registrable Securities, owned by such
Stockholders.
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, Series E 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 therein), subject to the approval of the Board of
Directors, which approval shall not be unreasonably withheld.
10
3. Piggyback Registrations.
-----------------------
(a) SERIES C AND SERIES E 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 holders of Preferred Registrable Securities and the
Stockholders of Future Registrable Securities and Warrant Registrable
Securities. The Company shall include in such Registration such shares of
Preferred 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
Preferred 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
March 2, 2001), then 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
Securities 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 E Registrable Securities of all Series E
Stockholders of Series E Registrable Securities, (3) third, the shares of Series
C Registrable Securities of all Series C Stockholders of Series C Registrable
11
Securities and the Future Registrable Securities and Warrant Registrable
Securities of all Stockholders requested to be included, (4) fourth, the shares
of Registrable Securities of Other Stockholders requested to be included, and
(5) fifth, any other shares of Common Stock requested to be included. Any
necessary allocation among the Holders of shares within each of (2), (3), (4)
and (5) 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.
(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.
4. Hold-Back Agreements. The Company agrees:
--------------------
(a) 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
(b) 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 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).
5. 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:
12
(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:
(1) 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,
(2) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus or for additional
information,
(3) 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,
(4) 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,
13
(5) 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
(6) 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 therefore 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,
14
if any, without charge, as many 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 to be
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);
15
(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 of such Registrable Securities, and in such
connection, whether or not the registration is an Underwritten Registration:
(1) 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;
(2) 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;
(3) 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;
(4) 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
(5) 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.
16
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
(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.
6. 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
17
connection with a Piggyback Registration that becomes effective shall be shared
by the Company and 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 the Company and 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.
7. 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 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, (x) if such Misstatement or alleged Misstatement is corrected in an
amendment or supplement to such Prospectus and (y) 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).
18
(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 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
19
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 Section 7(a) and Section 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 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
20
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.
8. 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.
9. 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 with all such other periods with respect
to such Registrations Statement exceed, in the aggregate, ninety (90) calendar
days.
21
10. 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 under the Securities Act, other than Junior Securities
registered on Forms S-8 or S-4, 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 and
Series E Stockholders unless:
(1) 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 and Series E Registrable Securities requested
to be sold, and
(2) the Series C Stockholders of Series C Registrable Securities
and the Series E Stockholders of Series E 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) or the Series E Stockholders
of Series E Registrable Securities (if the Series E Stockholders of
Series E Registrable Securities in the aggregate hold more than 50% of
the Series E 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, the Series E Stockholders of the Series E
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, the Series C
Stockholders of Series C Registrable Securities and the Series E Stockholders of
Series E Registrable Securities are entitled to participate in such underwritten
distribution based on the order of priority set forth in Section 3 hereof, and
22
(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.
11. 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 from registration under the Securities Act
and exempt from qualification under any 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 Securities 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
23
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.
12. 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
Securities Act in connection with the first firm commitment underwritten public
offering of its Common Stock to the general public subsequent to March 2, 2001.
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 March 2, 2001 if all shares of Registrable Securities held or
entitled to be held upon conversion of 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 March 2, 2001 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.
13. 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.
14. 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 any 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 Amended and Restated
Registration Rights Agreement, dated as of June 28, 2001, a copy of which the
Company will furnish to the holder of this certificate upon request and without
charge."
24
15. 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
(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.
16. Entire Agreement and Amendments.
-------------------------------
(a) This Agreement, together with the Amended and Restated 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 all prior
agreements with respect to the subject matter hereof in their entirety. The
parties hereto acknowledge and agree that each such prior agreement 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
25
shall require the consent of the holders of 50% of the then outstanding shares
of Preferred Registrable Securities; and provided further, 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.
17. Governing Law; Successors and Assigns.
-------------------------------------
This Agreement shall be governed by the laws of the State of New York 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.
18. 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.
19. 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.
20. 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.
26
21. 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.
22. Captions.
--------
Captions are for convenience only and are not deemed to be part of this
Agreement.
23. 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.
24. 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 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.
25. 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)
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement as of the day and year first above
written.
COMPANY:
PrimeSource Healthcare, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
STOCKHOLDERS:
GE Capital Equity Investments, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ IV L.P.
By: Its General Partner
CSHB Ventures IV L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
28
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
3700 East Columbia Street
▇▇▇▇▇▇▇▇▇▇▇ Business Park
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BAM Enterprises, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Business Park
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
3700 East Columbia Street
▇▇▇▇▇▇▇▇▇▇▇ Business Park
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
29
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Webbmont Holdings, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:President of General Partner
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Investors Equity, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
30
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Geneva Middle Market Investors, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
31
Citizens Bank of Massachusetts as successor in
interest to State Street Bank and Trust Company1
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ark CLO 2000-1, Limited
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Collateral Manager
c/o Patriarch Partners, LLC,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
32
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.