Exhibit 4.1
OCCULOGIX, INC.
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SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
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NOVEMBER 1, 2004
OCCULOGIX, INC.
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This Second Amended and Restated Investors' Rights Agreement (this
"AGREEMENT") is made as of the 1st day of November, 2004, by and among
OccuLogix, Inc. (formerly Vascular Sciences Corporation), a Delaware corporation
(the "COMPANY"), the individuals and entities listed on Schedule A attached
hereto (each an "INVESTOR," and collectively, the "INVESTORS") and the entities
listed on Schedule B attached hereto (the "DEBENTUREHOLDERS").
RECITALS
A. WHEREAS, the Company, has filed a registration statement with the SEC and
a preliminary prospectus with Canadian securities regulatory authorities
in connection with the initial public offering of its Common Stock, and as
part of this offering, current holders of securities in the Company are
being offered an opportunity to sell securities in the offering;
B. AND WHEREAS, in connection with the initial public offering of its Common
Stock the Company is undergoing a reorganization whereby all Series A
Preferred Stock, Series B Preferred Stock and Convertible Debentures will
be converted into Common Stock;
C. AND WHEREAS, certain of the Investors hold shares of Common Stock of the
Company and certain of the Investors hold shares of Series A Preferred
Stock (the "SERIES A PREFERRED STOCK") of the Company and certain of the
Investors hold shares of Series B Preferred Stock (the "SERIES B PREFERRED
STOCK") of the Company and the Debentureholders hold secured convertible
grid debentures (the "CONVERTIBLE DEBENTURES") of the Company;
D. AND WHEREAS, the Company and others are parties to an Investors' Rights
Agreement dated as of July 25, 2002 ( the "ORIGINAL INVESTORS' RIGHTS
AGREEMENT") which was amended and restated as of June 25, 2003 (the
"AMENDED INVESTORS' RIGHTS AGREEMENT") both providing for certain
registration rights, rights of first refusal, board representation rights,
rights to financial information and certain other rights;
E. AND WHEREAS, as a condition of offering the current holders of securities
in the Company the opportunity to sell securities in the offering, the
Company has requested that the Amended Investors' Rights Agreement be
amended and restated on the terms set out herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants and
agreements set forth herein, the Company, the Investors, the Prior Holders and
the Debentureholders hereby agree as follows:
AGREEMENT
1. INTERPRETATION
1.1 DEFINITIONS
"AGREEMENT" has the meaning attributed to it in the first paragraph
of this second amended and restated investors' rights agreement.
"AMENDED INVESTORS' RIGHTS AGREEMENT" has the meaning attributed to
it in the recitals to this Agreement.
"CERTIFICATE OF INCORPORATION" means the amended and restated
certificate of incorporation of the Company dated July 25, 2002, as
amended on each of August 29, 2003 and July 26, 2004, as may be
further amended and restated from time to time.
"COMPANY" has the meaning attributed to it in the first paragraph of
this Agreement.
"CONVERTIBLE DEBENTURES" has the meaning attributed to it in the
recitals to this Agreement.
"CONVERTIBLE SECURITIES" means securities convertible into,
exchangeable for or otherwise carrying the right or obligation to
acquire Common Stock, including the Convertible Debentures, the
Series A Preferred Stock, the Series B Preferred Stock and any other
rights, options or warrants to acquire Common Stock.
"COMMON STOCK" means the Company's common stock as set forth in its
Certificate of Incorporation and includes any shares of stock or
securities into which Common Stock may be converted or changed or
which result from a consolidation, subdivision, reclassification or
redesignation of Common Stock.
"DEBENTUREHOLDERS" has the meaning attributed to it in the first
paragraph of this Agreement.
"DEBENTURE REGISTRABLE SECURITIES" means (i) the Common Stock
issuable or issued upon conversion of the Convertible Debentures and
(ii) the Common Stock 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 the shares referenced in (i) above, excluding
in all cases, however, any Debenture Registrable Securities sold or
transferred by a Person in a transaction in which such Person's
rights under Section 2 are not assigned or sold pursuant to Rule 144
promulgated under the Securities Act.
"DEBENTURE REGISTRABLE SECURITIES THEN OUTSTANDING" means the sum of
(i) the number of shares of Common Stock outstanding which are
Debenture Registrable
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Securities and (ii) the number of shares of Common Stock which are
issuable pursuant to then convertible or exercisable securities
(including Convertible Debentures) and which are Debenture
Registrable Securities.
"EXCHANGE ACT" has the meaning attributed to it in Section 2.6(a).
"HOLDER" or "HOLDERS" means, for purposes of Section 2 of this
Agreement, any Investor owning of record Registrable Securities that
have not been sold to the public or pursuant to Rule 144 promulgated
under the Securities Act or any assignee of record of such
Registrable Securities to whom rights under Section 2 have been duly
assigned in accordance with this Agreement; provided, however, that
for purposes of this Agreement, a record holder of Series A
Preferred Stock, Series B Preferred Stock or Convertible Debentures
convertible into or exercisable for, as the case may be, such
Registrable Securities shall be deemed to be the Holder of such
Registrable Securities.
"INITIAL PUBLIC OFFERING" has the meaning attributed to it in
Section 2.7.
"INVESTOR" or "INVESTORS" has the meaning attributed to it in the
first paragraph of this Agreement.
"ORIGINAL INVESTORS' RIGHTS AGREEMENT" has the meaning attributed to
it in the recitals to this Agreement.
"PERSON" means any individual, corporation, partnership, limited
liability company, limited liability partnership, firm, joint
venture, association, joint-stock company, unincorporated
organization, trust, trustee, executor, administrator or other legal
personal representative, regulatory body or agency, government or
governmental agency, authority or other entity howsoever designated
or constituted.
"REGISTER", "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement or similar
document in compliance with the Securities Act and the declaration
or ordering of effectiveness of such registration statement or
document.
"REGISTRABLE SECURITIES" means the Series A Registrable Securities,
the Series B Registrable Securities and the Debenture Registrable
Securities.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall mean the sum of (i)
the number of Series A Registrable Securities then outstanding; (ii)
the number of Series B Registrable Securities then outstanding; and
(iii) the number of Debenture Registrable Securities then
outstanding.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SERIES A PREFERRED STOCK" has the meaning attributed to it in the
recitals to this Agreement.
"SERIES A REGISTRABLE SECURITIES" means (i) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock
and (ii) any Common Stock 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 the shares referenced in (i) above,
excluding in all cases, however, any Series A Registrable Securities
sold or transferred by a Person in a transaction in which such
Person's rights under Section 2 are not assigned or sold pursuant to
Rule 144 promulgated under the Securities Act.
"SERIES A REGISTRABLE SECURITIES THEN OUTSTANDING" means the sum of
(i) the number of shares of Common Stock outstanding which are
Series A Registrable Securities and (ii) the number of shares of
Common Stock which are issuable pursuant to then convertible or
exercisable securities (including Class A Preferred Stock) and which
are Series A Registrable Securities.
"SERIES B PREFERRED STOCK" has the meaning attributed to it in the
recitals to this Agreement.
"SERIES B REGISTRABLE SECURITIES" means (i) the Common Stock
issuable or issued upon conversion of the Series B Preferred Stock
and (ii) any Common Stock 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 the shares referenced in (i) above,
excluding in all cases, however, any Series B Registrable Securities
sold or transferred by a Person in a transaction in which such
Person's rights under Section 2 are not assigned or sold pursuant to
Rule 144 promulgated under the Securities Act.
"SERIES B REGISTRABLE SECURITIES THEN OUTSTANDING" means the sum of
(i) the number of shares of Common Stock outstanding which are
Series B Registrable Securities and (ii) the number of shares of
Common Stock which are issuable pursuant to then convertible or
exercisable securities (including Series B Preferred Stock) and
which are Series B Registrable Securities.
"VIOLATION" has the meaning attributed to it in Section 2.6(a).
1.2 AMENDMENT AND RESTATEMENT OF PRIOR REGISTRATION AND STOCKHOLDERS'
RIGHTS
Pursuant to Section 3.2 of the Amended Investors' Rights Agreement,
the Company, the Debentureholders, the Holders of at least two-thirds of Series
B Registrable Securities currently outstanding, and the Holders of at least a
majority of the Series A Registrable Securities currently outstanding agree and
acknowledge that this Agreement hereby amends, restates, supercedes and replaces
any prior agreements, including, without limitation, the Original Investors'
Rights Agreement and the Amended Investors' Rights Agreement among
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the Investors, Debentureholders and the Company (or any predecessor corporation
of the Company) and the Prior Holders (as defined in those agreements) relating
to registration rights, rights of first refusal, board representation rights,
rights to financial information or any other rights described in those
agreements, and that this Agreement shall be binding upon each of the Investors
and Debentureholders whether they have executed this Agreement or not.
1.3 CHANGE TO COMMON STOCK
The provisions of this Agreement relating to Common Stock shall
apply, mutatis mutandis, to any securities into which such Common Stock may be
converted, reclassified, redesignated, subdivided, consolidated or otherwise
changed from time to time and to any securities of any successor or continuing
corporation to the Company that may be received in respect of any Common Stock
on a reorganization, amalgamation, consolidation or merger, statutory or
otherwise.
1.4 FULLY-DILUTED
For the purposes of this Agreement, wherever a calculation is to be
made on a "fully-diluted basis", the relevant calculation shall be made on a pro
forma basis after giving effect to or assuming the prior conversion or exchange
of, or the prior exercise of any right, option or obligation to purchase or
acquire any Common Stock attaching to, any Convertible Securities then
outstanding by each holder of such Convertible Securities, regardless of whether
such conversion, exchange or exercise has in fact occurred.
1.5 EFFECTIVENESS
For greater clarity, this Agreement shall also govern all aspects of
the piggyback registration rights for the Company's Initial Public Offering
pursuant to which the Company initially filed a registration statement on Form
S-1 on August 13, 2004 and shall supercede the Amended Investors' Rights
Agreement in respect of such matters.
2. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
2.1 PIGGYBACK REGISTRATIONS
(a) The Company shall promptly notify all Holders of Registrable
Securities in writing at least thirty (30) calendar days prior
to any registration statement under the Securities Act
becoming effective for purposes of effecting a public offering
of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of
securities of the Company, but excluding registration
statements on Forms S-4 and S-8 and any similar successor
forms and will afford each such Holder an opportunity to
include in such registration statement all or any part of the
Registrable Securities then held by such Holder. Each Holder
desiring to include in any such registration statement all or
any part of the Registrable Securities held by such Holder
shall, within twenty (20) calendar days after receipt of the
above-described notice from the Company, so notify the Company
in writing, and in such notice shall inform the Company of the
number of Registrable Securities such Holder wishes to include
in such
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registration statement. If a Holder decides not to include all
of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the
Company with respect to offerings of its securities, all upon
the terms and conditions set forth herein.
(b) If a registration statement under which the Company gives
notice under this Section 2.1 is for an underwritten offering,
then the Company shall so advise the Holders of Registrable
Securities. In such event, the right of any such Holder's
Registrable Securities to be included in a registration
pursuant to this Section 2.1 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion
of such Holder's Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to
distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriter(s)
selected for such underwriting. Notwithstanding any other
provision of this Agreement, if the managing underwriter(s)
determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then
the managing underwriter(s) may exclude shares (including
Registrable Securities) from the registration and the
underwriting, and the number of shares that may be included in
the registration and the underwriting shall be allocated,
(i) first, to the Company,
(ii) second, to each of the Holders of Debenture Registrable
Securities requesting inclusion of their Debenture
Registrable Securities in such registration statement on
a pro rata basis based on the total number of Debenture
Registrable Securities then held by each such Holder on
a fully-diluted basis,
(iii) third, to each of the Holders of Series B Registrable
Securities requesting inclusion of their Series B
Registrable Securities in such registration statement on
a pro rata basis based on the total number of Series B
Registrable Securities then held by each such Holder on
a fully-diluted basis,
(iv) fourth, to each of the Holders of Series A Registrable
Securities requesting inclusion of their Series A
Registrable Securities in such registration statement on
a pro rata basis based on the total number of Series A
Registrable Securities then held by each such Holder on
a fully-diluted basis, and
(v) fifth, to any stockholder (other than a Holder) invoking
contractual rights to have their securities registered,
if any, on a pro rata basis,
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If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn
from the registration and those Registrable Securities will continue
to be subject to the terms of this Agreement. For any Holder which
is a partnership or corporation, the partners, retired partners and
shareholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a
single "HOLDER," and any pro rata reduction with respect to such
"Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included
in such "HOLDER," as defined in this sentence.
2.2 OBLIGATIONS OF THE COMPANY
Whenever required to effect the registration of any Registrable
Securities under this Agreement, the Company shall, as expeditiously as
reasonably possible:
(a) prior to declaring a registration statement effective with the
SEC, provide each selling Holder with a draft of the
registration statement for its review and comment;
(b) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best
efforts to cause such registration statement to become
effective, and keep such registration statement effective
until the completion of the distribution contemplated thereby;
provided, however, that the Company shall not be required to
keep such registration statement effective for more than 180
days (or such shorter period which will terminate when all
Registrable Securities covered by such registration statement
have been sold, but not prior to the expiration of the
applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable);
(c) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in
connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by
such registration statement;
(d) furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by them that
are included in such registration;
(e) use its best efforts to (i) register and qualify the
securities covered by such registration statement under such
other securities or "blue sky" laws of such jurisdictions as
shall be reasonably requested by the Holders, (ii) prepare and
file
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in those jurisdictions such amendments (including
post-effective amendments) and supplements, and take such
other actions, as may be necessary to maintain such
registration and qualification in effect at all times for the
period of distribution contemplated thereby and (iii) take
such further action as may be necessary or advisable to enable
the disposition of the Registrable Securities in such
jurisdictions provided that the Company shall not be required
in connection therewith or as a condition thereto to qualify
generally to do business where it is not so qualified or to
file a general consent to service of process in any such
states or jurisdictions;
(f) in the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement,
in usual and customary form, with the managing underwriter(s)
of such offering (it being understood and agreed that, as a
condition to the Company's obligations under this clause (f),
each Holder participating in such underwriting shall also
enter into and perform its obligations under such an
agreement);
(g) immediately notify each Holder of Registrable Securities
covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result
of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing
and promptly file such amendments and supplements which may be
required on account of such event and use its best efforts to
cause each such amendment and supplement to become effective;
(h) immediately notify each seller of Registrable Securities 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 and make every reasonable
effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the
earliest possible time;
(i) furnish, at the request of any Holder requesting registration
of Registrable Securities, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the
date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of such
date, of the counsel representing the Company for the purposes
of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest, on a
fully-diluted basis, of the Holders requesting registration,
addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a
"comfort" letter dated as of such date, from the independent
certified public accountants of the Company, in form and
substance as is customarily given by independent certified
public accountants to
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underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders, on a
fully-diluted basis, requesting registration, addressed to the
underwriters, if any, and to the Holders requesting
registration of Registrable Securities;
(j) apply for listing and list the Registrable Securities being
registered on any national securities exchange on which a
class of the Company's equity securities is listed or, if the
Company does not have a class of equity securities listed on a
national securities exchange, apply for qualification and use
its best efforts to qualify the Registrable Securities being
registered for inclusion on the automated quotation system of
the National Association of Securities Dealers, Inc.;
(k) make available for inspection by each seller of Registrable
Securities, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney,
accountant or other agent retained by such seller or
underwriter, all financial and other records, 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,
underwriter, attorney, accountant or agent in connection with
such registration statement;
(l) take all actions reasonably necessary to facilitate the timely
preparation and delivery of certificates (not bearing any
legend restricting the sale or transfer of such securities)
representing the Registrable Securities to be sold pursuant to
the Registration Statement and to enable such certificates to
be in such denominations and registered in such names as the
Investors, Prior Holders or Debentureholders or any
underwriters may reasonably request; and
(m) take all other reasonable actions necessary to expedite and
facilitate the registration of the Registrable Securities
pursuant to the Registration Statement.
2.3 EXPENSES
All expenses incurred in connection with registrations, filings or
qualifications pursuant to Section 2.1 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of one (1) counsel for the selling Holder or Holders shall be
borne by the Company.
2.4 FURNISH INFORMATION
It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Section 2.1 of this Agreement that the
selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them and the intended method of
disposition of such securities as shall be required to timely effect the
registration of their Registrable Securities.
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2.5 DELAY OF REGISTRATION
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
2.6 INDEMNIFICATION
In the event any Registrable Securities are included in a
registration statement under Section 2.1 of this Agreement:
(a) BY THE COMPANY. To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, the partners,
officers, members, employees, agents and directors of each
Holder, any underwriter (as defined in the Securities Act) for
such Holder and each Person, if any, who controls such Holder
or underwriter within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended, (the "EXCHANGE
ACT"), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations
(collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement,
including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements
thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or
necessary to make the statements therein not misleading;
or
(iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the
offering covered by such registration statement;
and the Company will reimburse each such Holder, partner,
officer, member, employee, agent or director, underwriter or
controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that if the Company is
found not to be liable for a Violation and such Holder (or a
partner, officer, member, employee, agent or director or
controlling person of such Holder) is found to be liable for
such Violation, such Holder shall pay the Company's legal or
other expenses reasonably incurred in defending any such loss,
claim, damage, liability or action; provided further that the
indemnity agreement contained in this Section 2.6(a) shall not
apply to
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amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any
such case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection
with such registration by such Holder, partner, officer,
member, employee, agent or director, underwriter or
controlling person of such Holder.
(b) BY SELLING HOLDERS. To the extent permitted by law, each
selling Holder, severally and not jointly with any other
Holder, will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the
registration statement, each Person, if any, who controls the
Company within the meaning of the Securities Act, any
underwriter and any other Holder selling securities under such
registration statement or any of such other Holder's partners,
directors or officers or any Person who controls such Holder
within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer,
controlling person, underwriter or other such Holder, partner,
officer, director, member, employee or agent or controlling
person of such other Holder may become subject under the
Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder
expressly for use in connection with such registration; and
each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such partner,
director, officer, member, employee, agent or controlling
person, underwriter or other Holder, partner, officer,
director, member, employee, agent or controlling person of
such other Holder in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that if the Holder is found not to be
liable for a Violation, the Company shall pay the Holder's
legal or other expenses reasonably incurred in defending any
such loss, claim, damage, liability or action; provided
further that the indemnity agreement contained in this Section
2.6(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder,
(which consent shall not be unreasonably withheld), nor shall
the selling Holder be liable in any such case for any such
loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information
furnished expressly for use in connection with such
registration by the Company, and provided further, that the
total amounts payable in indemnity by a Holder under this
Section 2.6(b) in respect of any Violation shall not exceed
the net proceeds (after deduction of all underwriters'
discounts and commissions paid by such Holder in connection
with the registration in question) received by such Holder in
the registered offering out of which such Violation arises.
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(c) NOTICE. Promptly after receipt by an indemnified party under
this Section 2.6 of notice of the commencement of any action
(including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 2.6, deliver to the
indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the
indemnified party under this Section 2.6, but the omission so
to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 2.6.
(d) CONTRIBUTION. In order to provide for just and equitable
contribution to joint liability under the Securities Act in
any case in which either (i) any Holder exercising rights
under this Agreement, or any controlling person of any such
Holder, makes a claim for indemnification pursuant to this
Section 2.6 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced
in such case notwithstanding the fact that this Section 2.6
provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the
part of any such selling Holder or any such controlling person
in circumstances for which indemnification is provided under
this Section 2.6; then, and in each such case, the Company and
such Holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after
contribution from others) in such proportion so that such
Holder is responsible for the portion represented by the
percentage that the public offering price of its Registrable
Securities offered by and sold under the registration
statement bears to the public offering price of all securities
offered by and sold under such registration statement, and the
Company and other selling Holders are responsible for the
remaining portion; provided, however, that, in any such case,
(A) no such Holder will be required to contribute any amount
in excess of the public offering price of all such Registrable
Securities offered and sold by such Holder pursuant to such
registration statement and (B) no Person or entity guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution
from any Person or entity who was not guilty of such
fraudulent misrepresentation.
12
(e) SURVIVAL. The obligations of the Company and Holders under
this Section 2.6 shall survive the completion of any offering
of Registrable Securities in a registration statement, and
otherwise.
2.7 "MARKET STAND-OFF" AGREEMENT
Each Holder hereby agrees that it shall not, to the extent requested
by the Company or an underwriter of securities of the Company, offer, sell or
otherwise transfer or dispose of or engage in any other transaction regarding
any Registrable Securities or other shares of stock of the Company then owned by
such Holder (other than to donees, affiliates or partners of the Holder who
agree to be similarly bound and except for securities sold pursuant to such
Registration Statement) for up to one hundred eighty (180) calendar days
following the effective date of the first firmly underwritten public offering of
Common Stock pursuant to a Registration Statement filed with, and declared
effective by, the SEC under the Securities Act, on the terms and conditions
approved by the Board of Directors (an "INITIAL PUBLIC OFFERING"), and for up to
ninety (90) calendar days following the effective date in the case of subsequent
public offerings; provided, however, that the holders of more than 5% of the
Company's capital stock, and executive officers and directors of the Company
then holding Common Stock of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company shall have
the right to place restrictive legends on the certificates representing the
shares subject to this Section 2.7 and to impose stop transfer instructions with
respect to the Registrable Securities and such other shares of stock of each
Holder (and the shares or securities of every other Person subject to the
foregoing restriction) until the end of such period.
2.8 RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Registrable
Securities to the public without registration, after such time as a public
market exists for the Common Stock, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all
times after the effective date that the Company becomes subject to
the reporting requirements of the Securities Act or the Exchange
Act;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) furnish to any Holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of
Rule 144 (at any time after ninety (90) calendar days after the
effective date of the first registration statement filed by the
Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the
most recent annual or quarterly
13
report of the Company and such other reports, documents of the
Company or other information in the possession of or reasonably
obtainable by the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing a
Holder to sell any such securities without registration.
2.9 TERMINATION OF THE COMPANY'S OBLIGATIONS
The Company shall have no obligations pursuant to Section 2 with
respect to: (i) any request or requests for registration made by any Holder on a
date more than five (5) years after the closing date of the Company's Initial
Public Offering, or (ii) any Registrable Securities proposed to be sold by a
Holder in a registration pursuant to Section 2 if in the opinion of counsel to
the Company, all such Registrable Securities proposed to be sold by a Holder may
be sold in a ninety (90) day period without registration under the Securities
Act pursuant to Rule 144 under the Securities Act. Notwithstanding the
foregoing, in no event shall a Holder's registration rights terminate prior to
the end of the end of the lock up period provided for in Section 2.7.
3. REPRESENTATIONS AND WARRANTIES
3.1 INVESTORS AND DEBENTUREHOLDER
Each Investor and Debentureholder represents and warrants:
(a) that, subject to any transfers permitted hereunder, such Investor
and Debentureholder owns beneficially and of record the number of
shares of Common Stock (or any securities convertible or
exchangeable or exercisable into shares of Common Stock) which are
expressed to be owned by him, her or it in Schedule A and/or
Schedule B, as applicable, to this Agreement, that such shares or
securities are not subject to any mortgage, lien, charge, pledge,
encumbrance, security interest or adverse claim and that no Person
has any rights to become a holder or possessor of any of such shares
or of the certificates representing the same;
(b) that if such Investor or Debentureholder is an individual that he or
she has the capacity to enter into and give full effect to this
Agreement;
(c) that if such Investor or Debentureholder is a corporation, that it
is duly incorporated and validly existing under the laws of its
jurisdiction of incorporation and that it has the corporate power
and capacity to own its assets and to enter into and perform its
obligations under this Agreement;
(d) if such Investor or Debentureholder is a trust, partnership or joint
venture, that it is duly constituted under the laws which govern it
and that it has the power to own its assets and to enter into and
perform its obligations under this Agreement;
(e) that this Agreement has been duly authorized by it, and duly
executed and delivered by him, her or it, as the case may be, and
constitutes a valid and binding
14
obligation enforceable in accordance with its terms, subject to the
usual exceptions as to bankruptcy and the availability of equitable
remedies;
(f) that the execution, delivery and performance of this Agreement does
not and will not contravene the provisions of its articles, bylaws,
constating documents or other organizational documents or the
documents by which it was created or established or the provisions
of any indenture, agreement or other instrument to which he or it is
a party or by which he or it may be bound; and
(g) that all of the foregoing representations and warranties will
continue to be true and correct during the continuance of this
Agreement.
3.2 THE COMPANY
The Company, to the best of its knowledge, information and belief
confirms the representations and warranties set out in Section 3.1 and further
represents and warrants that the securities set forth in Schedule A are the only
outstanding securities of the Company.
4. MISCELLANEOUS
4.1 AMENDMENT
Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of: (i) the
Company and (ii) the Holders (and/or any of their permitted successors or
assigns) of at least 50% of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this Section 4.1 shall be
binding upon each Investor and Holder and each permitted successor or assignee
of such Investor or Holder and the Company; provided, however, that no waiver
which adversely affects the rights of any Investor or Holder disproportionately
relative to the other Investors or Holders shall be effective against such party
unless such party has given its consent to such waiver.
4.2 SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Agreement, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties (including transferees of
any Registrable Securities). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties to this Agreement or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.3 GOVERNING LAW
This Agreement shall be governed by and construed exclusively in
accordance with the internal laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provisions.
15
4.4 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall
be deemed to constitute one and the same instrument. Counterparts may be
executed either in original or faxed form and the parties adopt any signatures
received by a receiving fax machine as original signatures of the parties.
4.5 TITLES AND SUBTITLES
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
4.6 NOTICES
Unless otherwise provided, any notice required or permitted under
this Agreement shall be given in writing and shall be deemed effectively given
(i) upon personal delivery to the party to be notified; (ii) upon transmission,
when sent by facsimile if sent during normal business hours of the recipient, if
not, then on the next business day; (iii) five calendar days after having been
sent by registered or certified mail, return receipt requested, postage prepaid;
(iv) one day after a deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the address indicated for such party on the
signature page hereof, or at such other address as such party may designate by
ten (10) calendar days advance written notice to the other parties.
4.7 SEVERABILITY
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, then such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
4.8 THIRD PARTIES
Nothing in this Agreement, express or implied, is intended to confer
upon any Person, other than the parties hereto and their successors and assigns,
any rights or remedies under or by reason of this Agreement.
4.9 ENTIRE AGREEMENT
This Agreement, together with all the schedules hereto, constitutes
and contains the entire agreement and understanding of the parties with respect
to the subject matter of this Agreement and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations
between the parties respecting the subject matter of this Agreement.
16
4.10 COSTS AND ATTORNEYS' FEES
In the event that any action, suit or other proceeding is instituted
concerning or arising out of this Agreement or any transaction contemplated
hereunder, the prevailing party shall recover all of such party's costs and
attorneys' fees incurred in each such action, suit or other proceeding,
including any and all appeals or petitions therefrom.
4.11 ADJUSTMENTS FOR STOCK SPLITS AND CERTAIN OTHER CHANGES
Wherever in this Agreement there is a reference to a specific number
of shares of Common Stock or Preferred Stock of the Company of any class or
series, then, upon the occurrence of any subdivision, combination or stock
dividend of such class or series of stock, the specific number of shares so
referenced in this Agreement shall automatically be proportionally adjusted to
reflect the effect on the outstanding shares of such class or series of stock by
such subdivision, combination or stock dividend.
4.12 AGGREGATION OF STOCK
All shares held or acquired by affiliated entities or persons shall
be aggregated together for the purpose of determining the availability of any
rights under this Agreement.
4.13 COOPERATION
The parties shall cooperate fully in good faith with each other and
their respective legal advisers, accountants and other representatives in
connection with any steps required to be taken as part of their respective
obligations under this Agreement.
4.14 REMEDIES CUMULATIVE
The rights and remedies of the parties under this Agreement are
cumulative and in addition to and not in substitution for any of the rights or
remedies provided by law. Any single or partial exercise by any party hereto of
any right or remedy for default or breach of any term, covenant or condition of
this Agreement does not waive, alter, affect or prejudice any other right or
remedy to which such party may be lawfully entitled for the same default or
breach.
4.15 TIME OF ESSENCE
Time shall be of the essence of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
17
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Investors' Rights Agreement as of the date first set forth
above.
OCCULOGIX, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx
Chairman and Chief Executive Officer
18
COUNTERPART SIGNATURE PAGE TO
OCCULOGIX, INC.
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
"SERIES A HOLDERS"
Diamed Medizintechnik GMBH
By: /s/ Xxxx X. Stock
------------------------------------
Name:
Title:
TLC Vision Corporation
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name:
Title:
By: /s/ Xxxx X. Xxxx
------------------------------------
Xxxx X. Xxxx
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------
Xxxxxxx X. Xxxxx, Xx.
By: /s/ Xxxx X. Stock
------------------------------------
Xxxx X. Stock
By: /s/ R. Xxxx Xxxxxx
------------------------------------
R. Xxxx Xxxxxx
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
xx
COUNTERPART SIGNATURE PAGE TO
OCCULOGIX, INC.
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
"SERIES B HOLDERS, DEBENTUREHOLDERS AND COMMON STOCKHOLDERS":
DIAMED MEDIZINTECHNIK GMBH
By: /s/ Hans Stock
------------------------------------
Name:
Title:
TLC VISION CORPORATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name:
Title:
SCHEDULE A
SCHEDULE OF INVESTORS
Diamed Medizintechnik GMBH
TLC Vision Corporation
Xxxxxx, Xxxxxx
Rehab Associates of West Florida, P.A.
Xxxx, Xxxxxxx Xxxxx
Xxxx, Xxxxx Xxxx Xx.
Xxxx, Xxxxx X.
Xxxxxxxx, Xxxxxxx X.
Xxxxxxxxx, Xxxxxxx X.
Xxxxx, Xxxxx
Xxxxxxx Family Partnership, Ltd.
Xxxxxx, Xxxxx, S. Xxxxxxxx X.
Xxxxxxxxx, Xxxx DMD, Xxxxxx
Xxxxxxxx, Xxxxxxx X. Xxxxxxxx Xxxxxx-
Xxxxxxxx, Xxxxxxx X. Xx. MD, Xxxx
Xxxxxxxx, Xxxxxxx X.
Xxxxx, Xxxx X.
Northlea Partners
Xxxxxxx, Xxxxxxx X. and Xxxxxxx X.
Xxxx, Xxxx X.
The Xxxxxx X. Xxxxxx Revocable Trust
Beard, Richard, III
Xxxxxxx, Xxxxxx X., D.D.S.
Xxxxxx, Xxx X.
Xxxxx, Xxxxx X.
Capital Paradigms, Inc.
Xxxxxxx, Xxxxxxxx X.
Xxxxx, Xxxxxxx X., Xx.
Dieters, Xxxxx X.
Xxxxxxx, Xxxxxxx Xxxxx
Xxxxx, Xxx and Xxxxxx
Xxxxx, Xxxxxxx X.
Xxxxx, Xxxx X.
Xxxxxxx, Xxxxxxx and Xxxxxxxx, JT TEN
First Trust Corporation TTEE FBO
Xxxxx X. Xxxxxxx Acct # 031038028709
Xxxxx, Xxxxx X. Xxxxx Xxxxx Trust Dated 12/20/99
Xxxxxx, Xxxxx X.
Xxxxx, Xxxxx X.
Xxxxxxx, Xxxxx X.
JTB VisionQuest Corporation
Xxxxxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxxx X. and Xxxxxxxxx
Xxxxxxx, Xxx X. Revocable Trust
Xxxx, Xxxxxx
Xxxx, Xxxxx
Xxxxx, Xxxxx
Xxxxxxx, Xxxxxxxx X.
Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxxx X. Family Trust
Xxxxxx, Xxxxxxx
RD Irrevocable Trust, Xxxxxxx, Xxxxxx, Trustee
Xxxxxxxx, Xx. Xxxx X.
Xxxxxxxxx, X.X.
Xxxxxxxxx, A.H. Family Trust
Xxxxxxxxx, X.X. or Xxxxxxxxxxx
Xxxxxxxxx, Xxxxx Family Trust
Xxxxxxxxx, Xxxxxxxx or Xxxxx
Xxxxx, Xxxx X.
Xxxxx, Xxxxxx X.
Xxxxx, Xxxxxx X.
Safe Harbor Fund I, X.X.
xx
Safe Harbor Managed Account 101-A, Ltd.
Sanders, Donald, Custodian for Xxxxxx Xxxxxxx
Sanders, Donald, Custodian for Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxx, XXX CIBC
Xxxxxxxxxxx as Custodian
Xxxxxxxxxxx, Xxxxxx
The Xxxxxxxxxx Revocable Trust dtd 10/29/99
Xxxxxxxxxxx, Xxxxx
Xxxxx, Xxxx and Xxxxx Xxxxxx Xxxxx, ATBE
Xxxxx, Xxxx and Xxxxx Xxxxxx Xxxxx,
Irrevocable Trust for Xxxxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxx and Xxxxx Xxxxxx Xxxxx,
Irrevocable Trust for Xxxxxx Xxxx Xxxxx
Xxxxx, Xxxx and Xxxxx Xxxxxx Xxxxx,
Irrevocable Trust for Xxxxxxx Xxxx Xxxxx
Stock, Xxxx
Xxxxxx, Xxxxxxxxx
Xxxxx, Xxxx
Xxxx, Xxxxx X.
Xxxxx Xxxxx
Xxxx, Xxxxxx X.
iii
SCHEDULE B
DEBENTUREHOLDERS
TLC Vision
Diamed Medizintechnik GMBH
iv
