EXHIBIT 4.4
AMENDED AND RESTATED CO-SALE AGREEMENT
THIS CO-SALE AGREEMENT is amended and restated as of this 28th day of June,
2001, by and among PrimeSource Healthcare, Inc., a Massachusetts corporation
(the "Company"), and the persons listed as Stockholders on the signature pages
hereto (collectively, the "Stockholders" and individually, a "Stockholder").
WHEREAS, on March 2, 2001, the Company entered into a Co-Sale Agreement
with the Stockholders set forth therein (the "Existing Co-Sale Agreement");
WHEREAS, pursuant to a 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, it is a condition precedent to the closing of the transactions
contemplated by the Unit Purchase Agreement that the Existing Co-Sale Agreement
be amended and restated as set forth herein; and
WHEREAS, the parties hereto are willing to execute this Agreement and to be
bound by the provisions hereof;
NOW, THEREFORE, in consideration of the premises, the agreements set forth
below, and the parties' desire to further their interests, the parties agree as
follows:
1. Certain Definitions.
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All terms not otherwise defined herein shall have the meanings set forth in
the Amended and Restated Registration Rights Agreement, dated as of the date
hereof (the "Registration Rights Agreement"), by and among the Company and the
stockholders signatories thereto.
"Preferred Stock" shall mean the Alternative Equity Financing Stock,
Qualified Equity Financing Stock, Future Preferred Stock, Series C Preferred
Stock of the Company and Series E Preferred Stock of the Company.
"Preferred Stockholder" shall mean the Stockholders of Preferred Stock.
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2. "Tag-Along" Rights for Sales by Rooney, Bayley or Hersma.
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(a) If Rooney, Bayley or Xxxxx X. Xxxxxx ("Xxxxxx," and for
purposes of this Section 2, the "Proposed Transferor") at any time or from time
to time, in one transaction or in a series of related transactions, desires to
sell, transfer or otherwise dispose of (collectively, "Transfer") (for purposes
of this Section 2, a "Tag-Along Sale") shares of Common Stock and/or Preferred
Stock to any Person (including the Company or any Subsidiary of the Company)
(for purposes of this Section 2, the "Proposed Transferee"), then each of the
Preferred Stockholders shall have the right, but not the obligation, to elect
that the Proposed Transferor be obligated to require, as a condition to such
Tag-Along Sale, that the Proposed Transferee purchase from each such electing
Preferred Stockholder:
(i) up to the number of shares of Common Stock derived by
multiplying the total number of shares of Common Stock owned by or
issuable to such electing Preferred Stockholder by a fraction, the
numerator of which is equal to the number of shares of Common Stock
then owned by or issuable to the Proposed Transferor that are to be
purchased by the Proposed Transferee (without giving effect to any
reduction in such number of shares by reason of any Preferred
Stockholder's election to exercise the "tag-along" rights provided in
this Section 2 in connection with such transaction) and the
denominator of which is the total number of shares of Common Stock
owned by or issuable to the Proposed Transferor prior to such sale;
and
(ii) up to the number of shares of Preferred Stock having a
value equal to the amount derived by multiplying the stated purchase
price upon the first sale (the "Stated Purchase Price") of the shares
of Preferred Stock owned by or issuable to such electing Preferred
Stockholder by a fraction, the numerator of which is the aggregate
Stated Purchase Prices of the shares of Preferred Stock then owned by
or issuable to the Proposed Transferor that are to be purchased by the
Proposed Transferee (without giving effect to any reduction in such
number of shares by reason of any Preferred Stockholder's election to
exercise the "tag-along" rights provided in this Section 2 in
connection with such transaction) and the denominator of which is the
aggregate Stated Purchase Prices of the shares of Preferred Stock
owned by or issuable to the Proposed Transferor prior to such sale;
provided, however, that if any Preferred Stockholder chooses not to sell any or
all shares which such Preferred Stockholder may be entitled to sell under this
Section 2(a), and one or more of the Preferred Stockholders is exercising its
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right to sell the maximum number of shares permissible (for purposes of this
Section 2, each, a "Reoffer Stockholder"), then each Reoffer Stockholder and
each of the Proposed Transferors shall have the option to sell such shares as to
which the option to sell has not been exercised (for purposes of this Section 2,
the "Reoffer Shares"), subject to allocation among them pro rata based on their
respective ownership of shares of Common Stock or Preferred Stock, as the case
may be.
Any such sales by any Preferred Stockholder shall be on the same terms and
conditions as the proposed Tag-Along Sale by the Proposed Transferor. Each
Preferred Stockholder whose shares are sold in a Tag-Along Sale shall be
required to bear a proportionate share of the expenses of the transaction,
including, without limitation, legal, accounting and investment banking fees and
expenses.
(b) The Proposed Transferor participating in a Tag-Along Sale
shall promptly (and in no event less than thirty (30) business days prior to the
consummation thereof) provide the Company with notice (for purposes of this
Section 2, the "Proposed Transferor Notice") of the proposed Tag-Along Sale
(which the Company shall transmit to each Preferred Stockholder within three (3)
business days of its receipt thereof) containing the following:
(i) the name and address of the Proposed Transferee of the
shares in the Tag-Along Sale;
(ii) the number of shares of Common Stock and Preferred Stock
proposed to be Transferred by the Proposed Transferor in the event
that none of the Preferred Stockholders elects to participate;
(iii) the proposed amount and form of consideration to be
paid for such shares and the terms and conditions of payment offered
by the Proposed Transferee;
(iv) the aggregate number of shares of Common Stock and
Preferred Stock held of record by such Proposed Transferor as of the
date of the notice (for purposes of this Section 2, the "Notice Date")
from the Proposed Transferor to the Company;
(v) the aggregate number of shares of Common Stock and
Preferred Stock held of record as of the Notice Date by all Preferred
Stockholders as a group;
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(vi) the maximum number of shares of Common Stock and
Preferred Stock each such Preferred Stockholder is entitled to include
in the Tag-Along Sale (as computed in accordance with the equations
set forth in Section 2(a)); and
(vii) that the Proposed Transferee has been informed of the
"tag-along" rights provided for in Section 2(a).
(c) If a Preferred Stockholder desires to participate in such
Tag-Along Sale, such Preferred Stockholder shall provide written notice (for
purposes of this Section 2, the "Tag-Along Notice") to such Proposed Transferor
not later than ten (10) business days after the Notice Date setting forth the
number of shares of Common Stock and Preferred Stock, if any, such Preferred
Stockholder elects to include in the Tag-Along Sale. In the event that any
Preferred Stockholder chooses not to sell any or all which such other Preferred
Stockholder may be entitled to sell under Section 2(a), the Proposed Transferor
participating in the Tag-Along Sale shall promptly (and in no event less than
fifteen (15) business days prior to the consummation of such Tag-Along Sale)
provide the Company with notice (for purposes of this Section 2, the "Reoffer
Notice") of such Reoffer Shares available for sale pursuant to Section 2(a)
(which the Company shall transmit to each Reoffer Stockholder within three (3)
business days of its receipt thereof). If a Reoffer Stockholder desires to
participate in the sale of any of the Reoffer Shares, such Reoffer Stockholder
shall provide written notice thereof to such Proposed Transferor not later than
five (5) business days after receipt of the Reoffer Notice setting forth the
number of additional shares of Common Stock and Preferred Stock, if any, such
Reoffer Stockholder elects to include in the Tag-Along Sale. A Preferred
Stockholder may elect to include shares in a Tag-Along Sale only if such
Preferred Stockholder elects to include in such Tag-Along Sale a ratio of shares
of Common Stock to shares of Preferred Stock equal to the ratio of shares of
Common Stock to shares of Preferred Stock proposed to be sold by the Proposed
Transferor in the Tag-Along Sale; provided, however, that (i) if a Preferred
Stockholder is selling all shares of Common Stock owned by it and its Affiliates
in such Tag-Along Sale, then the number of shares of Preferred Stock sold by
such Preferred Stockholder in the Tag-Along Sale shall not be limited by the
provisions of this sentence and (ii) if a Preferred Stockholder is selling all
of the shares of Preferred Stock owned by it and its Affiliates in such
Tag-Along Sale, then the number of shares of Common Stock sold by such Preferred
Stockholder in the Tag-Along Sale shall not be limited by the provisions of this
sentence. In the event that the Proposed Transferee does not purchase the shares
of the Proposed Transferor, then the proposed Tag-Along Sale by the Preferred
Stockholders to such Proposed Transferee shall not take place.
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(d) The provisions of this Section 2 shall not apply to any
transaction in which shares of Common Stock are proposed to be sold publicly
pursuant to a registration statement filed under the Act.
(e) Notwithstanding anything herein to the contrary, the rights
and obligations provided for in this Section 2 shall terminate, with respect to
all shares held by each Preferred Stockholder, upon the occurrence of the
effective date of the Company's registration statement in connection with its
closing of a firm commitment underwritten public offering of shares of Common
Stock by the Company and any selling stockholders in which (i) the aggregate
price paid for such shares by the public shall be at least $25,000,000 and (ii)
implies a pre-equity valuation of the Company of at least $110,000,000.
3. Restrictions on Rooney's, Bayley's and Hersma's Transfer.
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Each of Rooney, Bayley and Hersma hereby agrees that he will not sell,
transfer or pledge any of his respective shares of the Company capital stock (or
any direct or indirect interest therein) or any stock certificate representing
the same, now or hereafter at any time owned by him, except as consented to in
writing by a holders of a majority of the shares of the Preferred Stock, which
consent shall not be unreasonably withheld.
4. Notices.
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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 Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, Facsimile: (000) 000-0000, Attention: Xxxxx X.
Xxxxxx;
(b) if to a Stockholder who is not GE, at the most current
address given by the Stockholder to the Company in accordance with the
provisions hereof, which address initially is the address of the Stockholder set
forth on the signature pates hereto; and
(c) if to Rooney, Bayley or Hersma, initially at his address set
forth on the signature pages hereto and thereafter at such other address, notice
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of which is given in accordance with the provisions hereof, with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Facsimile: (000) 000-0000, Attn: Xxxxx Xxxx. 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.
5. Entire Agreement and Amendments.
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(a) This Agreement, together with the Registration Rights
Agreement dated as of even date herewith, as the same may be amended and/or
amended and restated from time to time, constitutes the entire agreement of the
parties with respect to the subject matter hereof and thereof, and supersedes
all prior agreements relating to the subject matter hereof in their entirety
with respect to each party to such prior agreements; provided, that,
notwithstanding the foregoing, the rights of Geneva Middle Market Investors
SBIC, L.P. ("Gemini") under that certain letter agreement dated as of February
8, 2001, shall be preserved and unaffected, and for purposes of this Agreement,
Gemini shall be considered a "Preferred Stockholder" with respect to its Common
Stock and Warrants (including shares of Common Stock issued upon the exercise
thereof). Except as set forth in the proviso in the immediately preceding
sentence, the parties hereto acknowledge and agree that all such prior
agreements shall be of no force and effect with respect to the parties hereto
following the effectiveness of this Agreement.
(b) Neither this Agreement nor any provision hereof may be
waived, modified, amended or terminated except by a written agreement signed by
Rooney, Bayley, Hersma and the Stockholders owning at least eighty percent (80%)
of the shares owned by the Stockholders; provided, however, that any amendment
hereto shall require the consent of the holders of 50% of the then outstanding
shares of Preferred Stock; 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.
6. Governing Law; Successors and Assigns.
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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).
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Without limiting the generality of the foregoing, all covenants and agreements
of the Stockholders shall bind any and all subsequent holders of their shares,
and the Company agrees that it shall not transfer on its records any such shares
unless (i) the transferor Stockholder shall have first delivered to the Company
and the other Stockholders the written agreement of the transferee to be bound
by this Agreement to the same extent as if such transferee had originally been a
Stockholder hereunder and (ii) the certificate or certificates evidencing the
shares so transferred bear the legend required by Section 14 of the Registration
Rights Agreement.
7. Expenses.
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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.
8. Severability.
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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.
9. Aggregation of Stock.
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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.
10. Further Assurances.
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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.
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11. Captions.
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Captions are for convenience only and are not deemed to be part of this
Agreement.
12. Counterparts.
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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.
13. No Inconsistent Agreements.
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The Company shall not, on or after the date of this Agreement, enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
Other than as disclosed on Schedule A attached hereto, the Company has not
previously entered into any agreement with respect to its securities granting
any "piggy back" registration rights to any Person. The Company represents and
warrants to each of the Holders of Registrable Securities that, except as set
forth in this Agreement or on Schedule B attached hereto, as of the date hereof,
there are no outstanding "demand" registration rights with respect to the
Company's securities. The rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's securities under any
such agreements.
* * * * *
(Signatures on following pages)
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IN WITNESS WHEREOF, the parties hereto have executed this Co-Sale Agreement
as of the day and year first above written.
PRIMESOURCE HEALTHCARE, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name:
Title:
/s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
0000 X. Xxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxxxxx
Xxxxxx, Xxxxxxx 00000
/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
GE Capital Equity Investments, Inc.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 000000
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxx IV L.P.
By: Its General Partner
CSHB Ventures IV L.P.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: General Partner
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000-0000
BAM Enterprises, LLC
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: President
0000 X. Xxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Webbmont Holdings, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President of General Partner
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Investors Equity, Inc.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
/s/ Xxxxxx X. Xxxxxx, as Attorney in Fact
-------------------------------------
Xxxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
/s/ Xxxxxx X. Xxxxxx, as Attorney in Fact
--------------------------------
Xxxxxx Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
/s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Geneva Middle Market Investors, L.P.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Xxxxx X. Xxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
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.
