EXHIBIT 2
AMENDMENT NO. 1
to the
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (this "Amendment") to the Agreement and Plan of
Merger, dated as of November 27, 2000 (the "Merger Agreement"), by and among
Luxtec Corporation, a Massachusetts corporation ("Parent"), Laser Merger Sub,
Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), and PrimeSource Surgical, Inc., a Delaware corporation (the "Company"),
is made and entered into as of February 8, 2001.
WHEREAS, Parent, Merger Sub and the Company desire to amend the Merger
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. DEFINITIONS. Unless otherwise specifically defined herein, each term
used herein that is defined in the Merger Agreement shall have the meaning
assigned to such term in the Merger Agreement. Each reference to "hereof,"
"hereunder," herein" and "hereby" and other similar reference contained in the
Merger Agreement shall from and after the date of this Amendment refer to the
Merger Agreement as amended hereby.
2. SUBSECTION 2.1(h). Subsection 2.1(h) of the Merger Agreement shall be
amended to read in its entirety as follows:
"Each share of Additional Company Stock, excluding the Company Series
C-3 Preferred Stock, if any, issued and outstanding immediately prior to the
Effective Time (other than shares, if any, which are Additional Dissenting
Shares) shall be converted into and exchanged for the right to receive a
fraction of a share of Additional Parent Stock equal to the quotient of (i) the
Exchange Ratio divided by (ii) the number of shares of Parent Common Stock into
which such share of Additional Parent Stock is convertible.
3. SUBSECTION 2.1(k). Subsection 2.1(k) of the Merger Agreement shall be
amended to read in its entirety as follows:
"Immediately prior to the Effective Time, Parent shall designate a
number of shares sufficient to consummate the Merger of the following new
series of preferred stock: (i) the Parent Series B Preferred Stock in the
form and substance as set forth in EXHIBIT A hereto to be issued to the
holders of the Company Junior Preferred Stock pursuant to the Merger, (ii)
the Parent Series C Preferred Stock in the form and substance as set forth in
EXHIBIT B hereto to be issued to the holders of the Company Senior Preferred
Stock, (iii) the Parent Series D Preferred Stock in the form and substance as
set forth in EXHIBIT G hereto to be issued to the holders of the Company
Series C-3 Preferred Stock and (iv) subject to Section 5.18 hereof, for any
series of
Exhibit 2-1
Additional Company Stock, a series of Additional Parent Stock with terms
substantially similar to such series of Additional Company Stock to be issued
to the holders of such series of Additional Company Stock; PROVIDED, that the
designation of such Additional Parent Stock shall not require the approval of
Parent's stockholders.
4. SECTION 2.1. A new subsection shall be added to Section 2.1 of the
Merger Agreement to read as follows:
"(n) Each share of Company Series C-3 Preferred Stock issued and
outstanding immediately prior to the Effective Time (other than shares, if any,
which are Series C-3 Dissenting Shares) shall be converted into and exchanged
for the right to receive a fraction of a share of Parent Series D Preferred
Stock equal to the Preferred Exchange Ratio."
5. SECTION 3.30. Section 3.30 of the Merger Agreement shall be amended to
read in its entirety as follows:
"EXCHANGE OF THE PARENT SERIES A PREFERRED STOCK. The exchange of the
Parent Series A Preferred Stock as contemplated by the Agreement, dated as of
February 8, 2001, by and between Parent and Geneva Middle Market Investors, L.P.
will not violate any Law of the Commonwealth of Massachusetts."
6. SECTION 5.11. Section 5.11 of the Merger Agreement shall be deleted in
its entirety.
7. SECTION 5.12. Section 5.12 of the Merger Agreement shall be deleted in
its entirety.
8. SECTION 5.17. Section 5.17 of the Merger Agreement shall be amended to
read in its entirety as follows:
"Prior to the Effective Time, Parent shall execute (i) the Registration
Rights Agreement in the form and substance as set forth in EXHIBIT C hereto and
(ii) the Co-Sale Agreement in the form and substance as set forth in EXHIBIT D
hereto."
9. SUBSECTION 6.3(e). Subsection 6.3(e) of the Merger Agreement shall be
deleted in its entirety.
10. SUBSECTION 6.3(f). Subsection 6.3(f) of the Merger Agreement shall be
deleted in its entirety.
11. SUBSECTION 7.1(b)(ii). Subsection 7.1(b)(ii) of the Merger Agreement
shall be amended to read in its entirety as follows:
"the Merger shall not have been consummated before March 1, 2001
(unless the failure to consummate the Merger by such date shall be due to the
action or failure to act of the party seeking to terminate);"
Exhibit 2-2
12. SECTION 8.1. Section 8.1 of the Merger Agreement shall be amended to
add or change the following defined terms:
"`Company Series C-3 Preferred Stock' shall mean the Company Series C-3
Exchangeable Preferred Stock, $0.001 par value per share.
`Dissenting Shares' shall mean, collectively, (i) the Common Stock
Dissenting Shares, (ii) the Series A Dissenting Shares, (iii) the Series B-1
Dissenting Shares, (iv) the Series B-2 Dissenting Shares, (v) the Series B-3
Dissenting Shares, (vi) the Series C Dissenting Shares, (vii) the Series C-2
Dissenting Shares, (viii) the Series C-3 Dissenting Shares and (ix) the
Additional Dissenting Shares.
`Parent Series D Preferred Stock' shall mean the Parent Series D
Preferred Stock, $1.00 par value per share, to be designated and issued pursuant
to the Merger.
`Series C-3 Dissenting Shares' shall mean the shares of Company Series
C-3 Preferred Stock that are outstanding immediately prior to the Effective Time
and which are held by Company Stockholders who shall not have voted in favor of
the Merger or consented thereto in writing and who shall have demanded properly
in writing appraisal for such shares in accordance with Section 262 of the DGCL
and who shall not have withdrawn such demand or otherwise have forfeited
appraisal rights."
13. EXHIBITS. Each of EXHIBITS A, B, C and D to the Merger Agreement are
amended and restated in their entirety as attached hereto. EXHIBIT G, attached
hereto, is hereby added to the Merger Agreement.
14. EFFECTIVENESS OF THE MERGER AGREEMENT. Except as amended hereby, the
Merger Agreement shall continue in full force and effect.
Exhibit 2-3
IN WITNESS WHEREOF, each of Parent, Merger Sub and the Company has
caused this Agreement to be executed by their respective officers thereunto duly
authorized, all as of the date first above written.
LUXTEC CORPORATION
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: President and Chief Executive Officer
LASER MERGER SUB, INC.
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Chief Executive Officer
PRIMESOURCE SURGICAL, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
Exhibit 2-4
