EXHIBIT 10.7
EYE DYNAMICS INC. -- HRL LABORATORIES, LLC
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
November 18, 2002, by and between HRL Laboratories, LLC ("HRL"), having a
principal place of business at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx
00000, and Eye Dynamics Inc. ("EDI"), located at 0000 Xxxx 000xx Xxxxxx, Xxxxx
000, Xxxxxxxx, XX 00000. HRL and EDI may be referred to individually as a
"Party" or collectively as the "Parties."
The Parties to this Agreement are Parties to a Technology Development
Agreement of even date herewith (the "TDA"). In order to induce HRL to enter
into the TDA, EDI has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
HRL's obligations under the TDA. Unless otherwise provided in this Agreement,
capitalized terms used herein shall have the meanings set forth in Article 5
hereof.
The Parties hereto agree as follows:
1. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION. At any time after the 1st anniversary of
the Effective Date under the TDA or such earlier time as EDI has completed a
public offering of its securities under the Securities Act, holders of
Registrable Securities may request registration under the Securities Act of all
or any portion of their Registrable Securities on Form S-1 or any similar
long-form registration ("LONG-FORM REGISTRATIONS"), or Form S-2 or S-3 or any
similar short-form registration ("SHORT-FORM REGISTRATIONS"), if available. All
registrations requested pursuant to this Section 1.1 are referred to herein as
"DEMAND REGISTRATIONS." Holders of Registrable Securities may make up to three
(3) Demand Registrations in any order or combination of Long-Form Registrations
or Short-form Registrations. Each request for a Demand Registration shall
specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within
ten days after receipt of any such request, EDI shall give written notice of
such requested registration to all other holders of Registrable Securities and,
subject to the terms of Section 1.4 hereof, shall include in such registration
all Registrable Securities with respect to which EDI has received written
requests for inclusion therein within 15 days after the receipt of EDI's notice.
(b) EXPENSES. EDI shall pay all Registration Expenses associated with a
Demand Registration. A registration shall not count as one of the permitted
Demand Registrations until it has become effective and the last or any
subsequent Demand Registration pursuant to Section 1.1 above shall not count as
one of the permitted Demand Registrations unless the holders of Registrable
Securities are able to register and sell at least 90% of the Registrable
Securities they have requested to be included in such registration; provided
that in any event EDI shall pay all Registration Expenses in connection with any
registration initiated whether or not it has become effective and whether or not
such registration has counted as one of the permitted Demand Registrations.
(c) PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is an
underwritten offering and the managing underwriters advise EDI in writing that
in their opinion the number of Registrable Securities and, if permitted
hereunder, other securities requested to be included in such offering exceeds
the number of Registrable Securities and other securities, if any, which can be
sold in an orderly manner in such offering within a price range acceptable to
HRL (or, if HRL is not participating in such offering, holders of a majority of
the Registrable Securities participating in such offering) without adversely
affecting the marketability of the offering, EDI shall include in such
registration prior to the inclusion of any securities which are not Registrable
Securities the number of Registrable Securities requested to be included which
in the opinion of such underwriters can be sold in an orderly manner within the
price range of such offering without adversely affecting the marketability of
the offering, pro rata among the respective holders thereof on the basis of the
amount of Registrable Securities owned by each such holder.
(d) RESTRICTIONS ON DEMAND REGISTRATIONS. EDI shall not be obligated to
effect any Demand Registration within 180 days after the effective date of a
previous Demand Registration. EDI may postpone for up to 90 days the filing or
the effectiveness of a registration statement for a Demand Registration if EDI
and HRL (or, if HRL is not participating in such offering, holders of a majority
of the Registrable Securities participating in such offering) agree that such
Demand Registration would reasonably be expected to have a material adverse
effect on any proposal or plan by EDI to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer, reorganization or similar transaction; provided that in such
event, shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as one of the permitted
Demand Registrations hereunder and EDI shall pay all Registration Expenses in
connection with such registration.
(e) SELECTION OF UNDERWRITERS. The holders of a majority of the
Registrable Securities included in any Demand Registration shall have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to EDI's approval which shall not be unreasonably withheld or delayed.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever EDI proposes to register any of its
securities under the Securities Act (other than pursuant to a Demand
Registration which shall be governed by Section 1 above) and the registration
form to be used may be used for the registration of Registrable Securities (a
"PIGGYBACK REGISTRATION"), EDI shall give prompt written notice (in any event
within three business days after its receipt of notice of any exercise of demand
registration rights other than under this Agreement) to all holders of
Registrable Securities of its intention to effect such a registration and,
subject to the terms of Sections 2(c) and 2(d) hereof, shall include in such
registration all Registrable Securities with respect to which EDI has received
written requests for inclusion therein within 20 days after the receipt of EDI's
notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities shall be paid by EDI in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of EDI, and the managing
underwriters advise EDI in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
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which can be sold in an orderly manner in such offering within a price range
acceptable to EDI, in such offering without adversely affecting the
marketability of the offering, EDI shall include in such registration (i) first,
the securities EDI proposes to sell, (ii) second, the Registrable Securities HRL
requested to be included in such registration, (iii) third, the Registrable
Securities requested to be included in such registration by other holders of
Registrable Securities, pro rata among the holders of such Registrable
Securities on the basis of the number of shares owned by each such holder, and
(iii) fourth, other securities requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of EDI's securities,
and the managing underwriters advise EDI in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the holders initially requesting such registration, in such
offering without adversely affecting the marketability of the offering, EDI
shall include in such registration (i) first, the securities requested to be
included therein by the holders requesting such registration, (ii) second, the
Registrable Securities HRL requested to be included in such registration, (iii)
third, the Registrable Securities requested to be included in such registration
by other holders of Registrable Securities, pro rata among the holders of such
Registrable Securities on the basis of the number of shares owned by each such
holder, and (iii) fourth, other securities requested to be included in such
registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the Registrable
Securities included in such Piggyback Registration. Such approval shall not be
unreasonably withheld or delayed.
3. HOLDBACK AGREEMENTS.
(a) HOLDBACK AGREEMENTS.
(i) Each holder of Registrable Securities shall not effect any
public sale or distribution (including sales pursuant to Rule 144) of
equity securities of EDI, or any securities convertible into or
exchangeable or exercisable for such securities, during a period not to
exceed the seven days prior to and the 90-day period (or 180-day period
with respect to any initial public offering) beginning on the effective
date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included
(except as part of such underwritten registration) or such lesser
period made available to directors, officers or 85% stockholders of
EDI, unless the underwriters managing the registered public offering
otherwise agree.
(ii) EDI (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days
prior to and during the 90-day period (or 180-day period with respect
to any initial public offering) beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or
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pursuant to registrations on Form S-8 or any successor form), unless
the underwriters managing the registered public offering otherwise
agree, and (ii) shall cause each holder of its Common Stock, or any
securities convertible into or exchangeable or exercisable for Common
Stock, purchased from EDI at any time after the date of this Agreement
(other than in a registered public offering) to agree not to effect any
public sale or distribution (including sales pursuant to Rule 144) of
any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES.
(a) Whenever the holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this Agreement, EDI shall
use its best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof and
pursuant thereto EDI shall as expeditiously as possible:
(i) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration
statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements
thereto, EDI shall furnish to the counsel selected by the holders of a
majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which
documents shall be subject to the review and comment of such counsel);
(ii) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and
prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period of not less than 180
days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any seller reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions
of the Registrable Securities owned by such seller (provided that EDI
shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subSection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
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(v) notify each seller of such Registrable Securities, 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 contains
an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and, at the request of any
such seller, EDI shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(vi) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
(vii) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the holders of a majority of the Registrable Securities
being sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities
(including effecting a stock split or a combination of shares);
(viii) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate documents and
properties of EDI, and cause EDI's officers, directors, employees and
independent accountants to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement; and
(ix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of EDI's first full
calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
(b) REGISTRATION EXPENSES.
(i) All expenses incident to EDI's performance of or
compliance with this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for EDI and all independent certified public
accountants, underwriters (excluding discounts and commissions) and
other Persons retained by EDI (all such expenses being herein called
"REGISTRATION EXPENSES"), shall be borne as provided in this Agreement,
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except that EDI shall, 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 or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which
similar securities issued by EDI are then listed or on the NASD
automated quotation system.
(ii) In connection with each Demand Registration and each
Piggyback Registration, EDI shall reimburse the holders of Registrable
Securities included in such registration for the reasonable fees and
expenses and disbursements of one counsel chosen by the holders of a
majority of the Registrable Securities included in such registration.
(iii) To the extent Registration Expenses are not required to
be paid by EDI, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the
registration of such holder's securities so included, and any
Registration Expenses not so allocable shall be borne by all sellers of
securities included in such registration in proportion to the aggregate
selling price of the securities to be so registered.
(c) INDEMNIFICATION.
(i) EDI agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and
each Person who controls such holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any
information furnished in writing to EDI by such holder expressly for
use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements
thereto after EDI has furnished such holder with a sufficient number of
copies of the same. In connection with an underwritten offering, EDI
shall indemnify such underwriters, their officers and directors and
each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to
the indemnification of the holders of Registrable Securities.
(ii) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder
shall furnish to EDI in writing such information and affidavits as EDI
reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, shall
indemnify EDI, its directors and officers and each Person who controls
EDI (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
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statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; provided that the
obligation to indemnify shall be individual, not joint and several, for
each holder and shall be limited to the net amount of proceeds received
by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(iii) Any Person entitled to indemnification hereunder shall
(i) give prompt written notice to the indemnifying Party of any claim
with respect to which it seeks indemnification (provided that the
failure to give prompt notice shall not impair any Person's right to
indemnification hereunder to the extent such failure has not prejudiced
the indemnifying Party) and (ii) unless in such indemnified Party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying Parties may exist with respect to such claim, permit such
indemnifying Party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified Party. If such defense is
assumed, the indemnifying Party shall not be subject to any liability
for any settlement made by the indemnified Party without its consent
(but such consent shall not be unreasonably withheld). An indemnifying
Party who is not entitled to, or elects not to, assume the defense of a
claim shall not be obligated to pay the fees and expenses of more than
one counsel for all Parties indemnified by such indemnifying Party with
respect to such claim, unless in the reasonable judgment of any
indemnified Party a conflict of interest may exist between such
indemnified Party and any other of such indemnified Parties with
respect to such claim.
(iv) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Party or any officer, director
or controlling Person of such indemnified Party and shall survive the
transfer of securities. EDI also agrees to make such provisions, as are
reasonably requested by any indemnified Party, for contribution to such
Party in the event EDI's indemnification is unavailable for any reason.
(d) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; PROVIDED THAT no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to EDI or the underwriters
(other than representations and warranties regarding such holder and such
holder's intended method of distribution) or to undertake any indemnification
obligations to EDI or the underwriters with respect thereto, except as otherwise
provided in Section 4.3 hereof.
5. DEFINITIONS.
"AGREEMENT" shall have the meaning set forth in the preamble hereto.
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"DEMAND REGISTRATION" shall have the meaning set forth in Section 1(a)
herein.
"EDI" shall have the meaning set forth in the preamble.
"EDI CAPITAL STOCK" shall mean the authorized capital stock of EDI.
"HRL" shall have the meaning set forth in the preamble hereto.
"LONG-TERM REGISTRATION" shall have the meaning set forth in Section
1(a) herein.
"PIGGYBACK REGISTRATION" shall have the meaning set forth Section 2(a)
herein.
"REGISTRABLE SECURITIES" means (i) any EDI Capital Stock issued
pursuant to the TDA, (ii) any EDI Capital Stock or other security issued or
issuable with respect to the securities referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when they have been distributed to the public pursuant to
a offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in effect). For purposes of this Agreement, a
Person shall be deemed to be a holder of Registrable Securities, and the
Registrable Securities shall be deemed to be in existence, whenever such Person
has the right to acquire directly or indirectly such Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected, and
such Person shall be entitled to exercise the rights of a holder of Registrable
Securities hereunder.
"REGISTRATION EXPENSE" shall have the meaning set forth in Section 4(b)
herein.
"SHORT-TERM REGISTRATION" shall have the meaning set forth in Section
1(a) herein.
"TDA" shall have the meaning set forth in the recitals hereto.
6. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. EDI shall not hereafter enter into any
agreement with respect to its securities which is inconsistent with or violates
the rights granted to the holders of Registrable Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. EDI shall not take
any action, or permit any change to occur, with respect to its securities which
would adversely affect the ability of the holders of Registrable Securities to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement or which would adversely affect the marketability of such
Registrable Securities in any such registration (including, without limitation,
effecting a stock split or a combination of shares).
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
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exercise all other rights granted by law. The Parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that, in addition to any other rights and
remedies existing in its favor, any Party shall be entitled to specific
performance and/or other injunctive relief from any court of law or equity of
competent jurisdiction (without posting any bond or other security) in order to
enforce or prevent violation of the provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of EDI and HRL.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the Parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the Parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, HRAI, HRL's owner and any subsequent holder of Registrable
Securities.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of California, without giving effect to any choice
of law or conflict of law rules or provisions (whether of the State of
California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California. In furtherance of
the foregoing, the internal law of the State of California shall control the
interpretation and construction of this Agreement (and all schedules and
exhibits hereto), even though under that jurisdiction's choice of law or
conflict of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.
(i) NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each Investor at the address indicated on the
Schedule attached hereto, and to HRL and EDI at the addresses indicated below:
HRL: HRL Laboratories, LLC
Attn: X.X. Xxxxxxxxx, RL85
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Tel. (000) 000-0000 Fax. (000) 000-0000
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WITH A COPY TO: Xxxxxxxx & Xxxxx
Attn: Xxx Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Tel. (000) 000-0000 Fax. (000) 000-0000
EDI: Eye Dynamics Inc.
Attn: Xxxxxx Xxxxxxx
0000 Xxxx 000xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Tel.
Fax.
WITH A COPY TO: Anker, Reed, Xxxxx & Xxxxxxxxx
Attn: Xxxxxx X. Xxxxx
00000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Tel. (000) 000-0000 Fax. (000) 000-0000
or to such other address or to the attention of such other person as the
recipient Party has specified by prior written notice to the sending Party.
(j) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one Party, but all such counterparts taken together shall constitute one
and the same Agreement.
* * * * *
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IN WITNESS WHEREOF, the Parties have executed this Registration Rights
Agreement as of the date first written above.
HRL LABORATORIES, LLC EYE DYNAMICS INC.
By: /S/ XXXXXX X. XXXXXXX By: /S/ XXXXXX XXXXXXX
---------------------------- ------------------------------
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxxx
President Chairman
S-1
APPENDIX I
If the holders of Registrable Securities request a Demand Registration,
EDI may avoid such registration if all of the following conditions are met:
A. either (i) EDI has Common Stock registered pursuant to Section 12 of
the Securities Exchange Act, has been subject to the reporting requirements of
Section 13 of the Securities Exchange Act for a period of at least 90 days
immediately preceding the proposed sale of the Registrable Securities and has
filed all reports required to be filed thereunder during the 12 months preceding
such proposed sale (or for such shorter period that EDI has been required to
file such reports) or (ii) EDI has Common Stock registered pursuant to the
Securities Act, has been subject to the reporting requirements of Section 15(d)
of the Securities Exchange Act for a period of at least 90 days immediately
preceding the proposed sale of the Registrable Securities and has filed all
reports required to be filed thereunder during the 12 months preceding such
proposed sale (or for such shorter period that EDI has been required to file
such reports),
B. counsel for EDI delivers an opinion, satisfactory to a majority of
the holders of Registrable Securities requesting such registration and such
holders' underwriter, broker, dealer, market maker or agent ("Underwriter"), to
the effect that (i) the sale of such securities does not require registration
pursuant to the Securities Act and (ii) the sale of such shares may be effected
without any restrictions on the amount or manner of such sale,
C. EDI delivers to the selling holder a prospectus or selling document,
satisfactory to a majority of the holders of Registrable Securities and such
holders' Underwriter, to enable such holders to sell their Registrable
Securities,
D. EDI pays the expenses incurred in preparing the printing of such
prospectus or selling document, the fees and expenses of compliance with
applicable blue sky or state securities laws, the fees and disbursements of
counsel for EDI and all independent certified public accountants and other
Persons retained by EDI, the fees and disbursements of one counsel for the
selling holders, EDI's internal expenses and fees for listing the securities to
be sold on each securities exchange on which similar securities issued by EDI
are then listed and all expenses of the Underwriter (excluding discounts and
commissions), and
E. such holders receive an opinion from the Underwriter that, despite
the lack of registration under the Securities Act, the sale of such securities
may be effected without (i) any decrease in the price received for such
securities, (ii) any increase in the discount or commission of the Underwriter
or (iii) any decrease in the amount of securities which the Underwriter believes
can practically be sold.
If an offering of Registrable Securities occurs pursuant to this Appendix I, the
provisions of Sections 1.4, 3, 4.1(d) through 4.1(i), 4.2(c), 4.3 and 4.4 shall
apply to such offering as if it were an offering registered by EDI with the
Securities and Exchange Commission.
1-1
