Exhibit 10.102
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of June
_, 2004, by and among (i) STAAR Surgical Company, a Delaware corporation (the
"Company"), (ii) each person listed on Exhibit A attached hereto (collectively,
the "Initial Investors" and each individually, an "Initial Investor"), and (iii)
each person or entity that subsequently becomes a party to this Agreement
pursuant to, and in accordance with, the provisions of Section 13 hereof
(collectively, the "Investor Permitted Transferees" and each individually an
"Investor Permitted Transferee").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investors, and the Initial Investors have agreed to purchase from the Company,
2,000,000 shares (the "Purchased Shares") of the Company's common stock, $0.01
par value per share (the "Common Stock"), all upon the terms and conditions set
forth in that certain Stock Purchase Agreement, dated of even date herewith,
between the Company and the Initial Investors (the "Stock Purchase Agreement");
and
WHEREAS, the terms of the Stock Purchase Agreement provide that it shall
be a condition precedent to the closing of the transactions thereunder, for the
Company and the Initial Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided therefor
below or elsewhere in this Agreement as described below:
"Board" shall mean the board of directors of the Company.
"Closing" and "Closing Date" shall have the meanings ascribed to such
terms in the Stock Purchase Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and all of the rules and regulations promulgated thereunder.
"Investors" shall mean, collectively, the Initial Investors and the
Investor Permitted Transferees; provided, however, that the term "Investors"
shall not include any of the Initial Investors or any of the Investor Permitted
Transferees that ceases to own or hold any Purchased Shares.
"Majority Holders" shall mean, at the relevant time of reference thereto,
those Investors holding more than fifty percent (50%) of the Registrable Shares
held by all of the Investors.
"Qualifying Holder" shall have the meaning ascribed thereto in Section 13
hereof.
"Registrable Shares" shall mean the Purchased Shares, provided, however,
such term shall not, after the Mandatory Registration Termination Date, include
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any of the Purchased Shares that become or have become eligible for resale
pursuant to Rule 144 or pursuant to Regulation S.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated thereunder.
2. EFFECTIVENESS; TERMINATION. This Agreement shall become effective and legally
binding only if the Closing occurs. This Agreement shall terminate and be of no
further force or effect, automatically and without any action being required of
any party hereto, upon the termination of the Stock Purchase Agreement pursuant
to Section 7 thereof.
3. MANDATORY REGISTRATION.
(a) Within fifteen (15) business days after the Closing Date, the Company
will prepare and file with the SEC a registration statement on Form S-3, or any
other available form if the Company is not eligible to use Form S-3, for the
purpose of registering under the Securities Act all of the Registrable Shares
for resale by, and for the account of, the Investors as selling stockholders
thereunder (the "Registration Statement"). The Registration Statement shall
permit the Investors to offer and sell, on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, any or all of the Registrable
Shares. The Company agrees to use reasonable efforts to cause the Registration
Statement to become effective as soon as practicable. In the event that, after
the Closing Date and before the Registration Statement is declared effective,
there is an act of God, war or terror, the Effectiveness Deadline will be
extended by a number of days equal to the days of any such act, plus ten (10).
(b) The Company shall be required to keep the Registration Statement
effective until such date that is the earlier of (i) the date as of which all of
the Purchasers may sell all of the Registrable Securities without restriction
pursuant to Rule 144(k) (or the successor rule thereto) promulgated under the
Securities Act or (ii) the date when all of the Registrable Shares registered
thereunder shall have been sold or (iii) the second anniversary of the Closing
Date, subject to extension as set forth below (such date is referred to herein
as the "Mandatory Registration Termination Date"). Thereafter, the Company shall
be entitled to withdraw the Registration Statement and the Investors shall have
no further right to offer or sell any of the Registrable Shares pursuant to the
Registration Statement (or any prospectus relating thereto). In the event the
right of the selling Investors to use the Registration Statement (and the
prospectus relating thereto) is delayed or suspended pursuant to Sections 6(c)
or 12 hereof, the Company shall be required to extend the Mandatory Registration
Termination Date beyond the second anniversary of the Closing Date by the same
number of days as such delay or Suspension Period (as defined in Section 12
hereof).
(c) The offer and sale of the Registrable Shares pursuant to the
Registration Statement shall not be underwritten.
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4. PENALTIES/SUSPENSION OF THE REGISTRATION STATEMENT
(a) If a Registration Statement covering the Registrable Shares is not
filed with the Commission on or prior to 30 business days after the Closing
Date, the Company will make pro rata payments to each Investor, as liquidated
damages and not as a penalty, in an amount equal to 1% of the aggregate amount
invested by such Investor for each 30-day period or pro rata for any portion
thereof following the date by which such Registration Statement should have been
filed for which no Registration Statement is filed with respect to the
Registrable Shares. Such payments shall be made to each Investor in cash. The
amounts payable as liquidated damages pursuant to this paragraph shall be
payable in lawful money of the United States, and amounts payable as liquidated
damages shall be paid within three (3) business days of the last day of each
such 30-day period during which the Registration Statement should have been
filed for which no Registration Statement was filed with respect to the
Registrable Shares.
(b) The Company shall use commercially reasonable efforts to have the
Registration Statement declared effective as soon as practicable. The Company
shall notify the Investors by facsimile or e-mail as promptly as practicable,
and in any event, within twenty-four (24) hours, after any Registration
Statement is declared effective and shall simultaneously provide the Investors
with copies of any related Prospectus to be used in connection with the sale or
other disposition of the securities covered thereby. If (A) a Registration
Statement covering the Registrable Shares is not declared effective by the
Commission within ninety (90) days after the Closing Date (or one hundred twenty
days if reviewed by the SEC), or (B) after a Registration Statement has been
declared effective by the Commission, sales cannot be made pursuant to such
Registration Statement for any reason (including without limitation by reason of
a stop order, or the Company's failure to update the Registration Statement),
but excluding the inability of any Investor to sell the Registrable Shares
covered thereby due to market conditions and except as excused pursuant to
Section 12 below, then the Company will make pro rata payments to each Investor,
as liquidated damages and not as a penalty, in an amount equal to 1% of the
aggregate amount invested by such Investor for each 30- day period or pro rata
for any portion thereof following the date by which such Registration Statement
should have been effective (the "Blackout Period"). The amounts payable as
liquidated damages pursuant to this paragraph shall be paid monthly within three
(3) business days of the last day of each month following the commencement of
the Blackout Period until the termination of the Blackout Period. Such payments
shall be made to each Investor in cash.
(c) No Investor shall be entitled to a payment pursuant to this Section 4
if effectiveness of a registration statement has been delayed or a prospectus
has been unavailable as a result of (i) a failure by such Investor to promptly
provide on request by the Company the information required under the Purchase
Agreement or this Agreement or requested by the SEC as a condition to
effectiveness of the Registration Statement; (ii) the provision of inaccurate or
incomplete information by such Investor; or (iii) a statement or determination
of the SEC that any provision of the rights of the Investor under this Agreement
is contrary to the provisions of the Securities Act.
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5. "PIGGYBACK" REGISTRATION RIGHTS.
(a) If, at any time after the Mandatory Registration Termination Date, the
Company proposes to register any of its Common Stock under the Securities Act,
whether as a result of a primary or secondary offering of Common Stock or
pursuant to registration rights granted to holders of other securities of the
Company (but excluding in all cases any registrations to be effected on Forms
S-4 or S-8 or other applicable successor Forms), the Company shall, each such
time, give to the Investors holding Registrable Shares written notice of its
intent to do so. Upon the written request of any such Investor given within 20
days after the giving of any such notice by the Company, the Company shall use
reasonable efforts to cause to be included in such registration the Registrable
Shares of such selling Investor, to the extent requested to be registered;
provided that (i) the number of Registrable Shares proposed to be sold by such
selling Investor is equal to at least seventy-five percent (75%) of the total
number of Registrable Shares then held by such participating selling Investor,
(ii) such selling Investor agrees to sell those of its Registrable Shares to be
included in such registration in the same manner and on the same terms and
conditions as the other shares of Common Stock which the Company proposes to
register, and (iii) if the registration is to include shares of Common Stock to
be sold for the account of the Company or any party exercising demand
registration rights pursuant to any other agreement with the Company, the
proposed managing underwriter does not advise the Company that in its opinion
the inclusion of such selling Investor's Registrable Shares (without any
reduction in the number of shares to be sold for the account of the Company or
such party exercising demand registration rights) is likely to affect materially
and adversely the success of the offering or the price that would be received
for any shares of Common Stock offered, in which case the rights of such selling
Investor shall be as provided in Section 4(b) hereof.
(b) If a registration pursuant to Section 5(a) hereof involves an
underwritten offering and the managing underwriter shall advise the Company in
writing that, in its opinion, the number of shares of Common Stock requested by
the Investors to be included in such registration is likely to affect materially
and adversely the success of the offering or the price that would be received
for any shares of Common Stock offered in such offering, then, notwithstanding
anything in Section 5(a) to the contrary, the Company shall be required to
include in such registration only the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
shares of Common Stock proposed to be included in such registration for the
account of the Company and/or any stockholders of the Company (other than the
Investors) that have exercised demand registration rights, in accordance with
the priorities, if any, then existing among the Company and/or such stockholders
of the Company with registration rights (other than the Investors), and (ii)
second, the shares of Common Stock requested to be included in such registration
by all other stockholders of the Company who have piggyback registration rights
(including, without limitation, the Investors), pro rata among such other
stockholders (including, without limitation, the Investors) on the basis of the
number of shares of Common Stock that each of them requested to be included in
such registration.
(c) In connection with any offering involving an underwriting of shares,
the Company shall not be required under Section 5 hereof or otherwise to include
the Registrable Shares of any Investor therein unless such Investor accepts and
agrees to the terms of the underwriting, which shall be reasonable and
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customary, as agreed upon between the Company and the underwriters selected by
the Company.
6. OBLIGATIONS OF THE PARTIES. In connection with the Company's obligation under
Sections 3 and 4 hereof to file the Registration Statement with the SEC and to
use its best efforts to cause the Registration Statement to become effective as
soon as practicable, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Shares covered by the Registration Statement;
(b) Furnish to the selling Investors such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents (including, without limitation,
prospectus amendments and supplements as are prepared by the Company in
accordance with Section 5(a) above) as the selling Investors may reasonably
request in order to facilitate the disposition of such selling Investors'
Registrable Shares;
(c) Notify the selling Investors, at any time when a prospectus relating to
the Registration Statement is required to be delivered under the Securities Act,
of the happening of any event as a result of which the prospectus included in or
relating to the Registration Statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading; and, thereafter, the Company will promptly prepare (and, when
completed, give notice to each selling Investor) a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading; provided that upon such notification by the Company, the selling
Investors will not offer or sell Registrable Shares until the Company has
notified the selling Investors that it has prepared a supplement or amendment to
such prospectus and delivered copies of such supplement or amendment to the
selling Investors (it being understood and agreed by the Company that the
foregoing proviso shall in no way diminish or otherwise impair the Company's
obligation to promptly prepare a prospectus amendment or supplement as above
provided in this Section 5(c) and deliver copies of same as above provided in
Section 5(b) hereof); and
(d) Use commercially reasonable efforts to register and qualify the
Registrable Shares covered by the Registration Statement under such other
securities or Blue Sky laws of such states as shall be reasonably appropriate in
the opinion of the Company and the managing underwriters, if any, provided that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions, and provided further that
(notwithstanding anything in this Agreement to the contrary with respect to the
bearing of expenses) if any jurisdiction in which any of such Registrable Shares
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shall be qualified shall require that expenses incurred in connection with the
qualification therein of any such Registrable Shares be borne by the selling
Investors, then the selling Investors shall, to the extent required by such
jurisdiction, pay their pro rata share of such qualification expenses.
(e) Subject to the terms and conditions of this Agreement, including
Section 4 hereof, the Company shall use its commercially reasonable efforts to
(i) prevent the issuance of any stop order or other suspension of effectiveness
of a Registration Statement, or the suspension of the qualification of any of
the Registrable Securities for sale in any jurisdiction in the united States,
(ii) if such an order or suspension is issued, obtain the withdrawal of such
order or suspension at the earliest practicable moment and notify each holder of
Registrable Securities of the issuance of such order and the resolution thereof
or its receipt of notice of the initiation or threat of any proceeding such
purpose.
(f) The Company shall (i) comply with all requirements of the National
Association of Securities Dealers, Inc. with regard to the issuance of the
Shares and the listing thereof on the Nasdaq National Market, and (ii) engage a
transfer agent and registrar to maintain the Company's stock ledger for all
Shares covered by the Registration Statement not later than the effective date
of the Registration Statement.
7. FURNISH INFORMATION. It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement that the selling
Investors shall furnish to the Company such information regarding them and the
securities held by them as the Company shall reasonably request and as shall be
required in order to effect any registration by the Company pursuant to this
Agreement. Each Investor shall promptly notify the Company of any changes in the
information furnished to the Company.
8. EXPENSES OF REGISTRATION. All expenses incurred in connection with the
registration of the Registrable Shares pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
9. DELAY OF REGISTRATION. The Investors shall not take any action to restrain,
enjoin or otherwise delay any registration as the result of any controversy
which might arise with respect to the interpretation or implementation of this
Agreement.
10. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each selling Investor, any investment banking firm acting as an
underwriter for the selling Investors, any broker/dealer acting on behalf of any
selling Investors and each officer and director of such selling Investor, such
underwriter, such broker/dealer and each person, if any, who controls such
selling Investor, such underwriter or broker/dealer within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
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supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, or arise out of or are based upon 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; and will reimburse such
selling Investor, such underwriter, broker/dealer or such officer, director or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 9(a) 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 Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission made in connection with
the Registration Statement, any preliminary prospectus or final prospectus
relating thereto or any amendments or supplements to the Registration Statement
or any such preliminary prospectus or final prospectus, in reliance upon and in
conformity with written information furnished expressly for use in connection
with the Registration Statement or any such preliminary prospectus or final
prospectus by the selling Investors, any underwriter for them or controlling
person with respect to them.
(b) To the extent permitted by law, each selling Investor will severally
and not jointly 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
investment banking firm acting as underwriter for the Company or the selling
Investors, or any broker/dealer acting on behalf of the Company or any selling
Investors, and all other selling Investors against any losses, claims, damages
or liabilities to which the Company or any such director, officer, controlling
person, underwriter, or broker/dealer or such other selling Investor may become
subject to, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement or any preliminary prospectus or final
prospectus, relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
or arise out of or are based upon 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, in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, in reliance upon and in conformity with written information
furnished by the selling Investor expressly for use in connection with the
Registration Statement, or any preliminary prospectus or final prospectus; and
such selling Investor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter, broker/dealer or other selling Investor in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that the liability of each selling Investor hereunder shall
be limited to the proceeds (net of underwriting discounts and commissions, if
any) received by such selling Investor from the sale of Registrable Shares
covered by the Registration Statement, and provided, further, however, that the
indemnity agreement contained in this Section 9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
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settlement is effected without the consent of those selling Investor(s) against
which the request for indemnity is being made (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume at its expense the defense thereof with counsel
mutually satisfactory to the indemnifying parties. In the event that the
indemnifying party assumes any such defense, the indemnified party may
participate in such defense with its own counsel and at its own expense,
provided, however, that the counsel for the indemnifying party shall act as lead
counsel in all matters pertaining to such defense or settlement of such claim
and the indemnifying party shall only pay for such indemnified party's expenses
for the period prior to the date of its participation on such defense. The
failure to notify an indemnifying party promptly of the commencement of any such
action, if prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
9, but the omission so to notify the indemnifying party will not relieve him of
any liability which he may have to any indemnified party otherwise other than
under this Section 9.
(d) Notwithstanding anything to the contrary herein, the indemnifying party
shall not be entitled to settle any claim, suit or proceeding unless in
connection with such settlement the indemnified party receives an unconditional
release with respect to the subject matter of such claim, suit or proceeding and
such settlement does not contain any admission of fault by the indemnified
party.
11. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
Investors the benefits of Rule 144 and any other rule or regulation of the SEC
that may at any time permit the Investors to sell the Purchased Shares to the
public without registration, the Company agrees to use commercially reasonable
efforts: (i) to make and keep public information available as those terms are
understood in Rule 144, (ii) to file with the SEC in a timely manner all reports
and other documents required to be filed by an issuer of securities registered
under the Securities Act or the Exchange Act, (iii) as long as any Investor owns
any Purchased Shares, to furnish in writing upon such Investor's request a
written statement by the Company that it has complied with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act, and to
furnish to such Investor a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed by the Company as may
be reasonably requested in availing such Investor of any rule or regulation of
the SEC permitting the selling of any such Purchased Shares without registration
and (iv) undertake any additional actions reasonably necessary to maintain the
availability of the Registration Statement or the use of Rule 144.
12. DEFERRAL AND LOCK-UP.
(a) Notwithstanding anything in this Agreement to the contrary, if the
Company shall furnish to the selling Investors a certificate signed by the
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President or Chief Executive Officer of the Company stating that the Board has
made the good faith determination (i) that continued use by the selling
Investors of the Registration Statement for purposes of effecting offers or
sales of Registrable Shares pursuant thereto would require, under the Securities
Act, premature disclosure in the Registration Statement (or the prospectus
relating thereto) of material, nonpublic information concerning the Company, its
business or prospects or any proposed material transaction involving the
Company, (ii) that such premature disclosure would be materially adverse to the
Company, its business or prospects or any such proposed material transaction or
would make the successful consummation by the Company of any such material
transaction significantly less likely and (iii) that it is therefore essential
to suspend the use by the Investors of such Registration Statement (and the
prospectus relating thereto) for purposes of effecting offers or sales of
Registrable Shares pursuant thereto, then the right of the selling Investors to
use the Registration Statement (and the prospectus relating thereto) for
purposes of effecting offers or sales of Registrable Shares pursuant thereto
shall be suspended for a period (the "Suspension Period") of not more than 30
days after delivery by the Company of the certificate referred to above in this
Section 12; provided that the Company shall be entitled to no more than two such
Suspension Periods during the twelve (12) month period commencing on the Closing
Date and during each subsequent twelve (12) month period until the Mandatory
Registration Termination Date (including any extension thereto). During the
Suspension Period, none of the Investors shall offer or sell any Registrable
Shares pursuant to or in reliance upon the Registration Statement (or the
prospectus relating thereto). The Company shall use commercially reasonable
efforts to terminate any Suspension Period as promptly as practicable.
13. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Investor under
this Agreement shall be transferred or assigned to any person unless (i) such
person is a Qualifying Holder (as defined below), and (ii) such person agrees to
become a party to, and bound by, all of the terms and conditions of, this
Agreement by duly executing and delivering to the Company an Instrument of
Adherence in the form attached as Exhibit B hereto. For purposes of this Section
13, the term "Qualifying Holder" shall mean, with respect to any Investor, (i)
any partner thereof, (ii) any corporation, partnership controlling, controlled
by, or under common control with, such Investor or any partner thereof, or (iii)
any other direct transferee from such Investor of at least 50% of those
Registrable Shares held by such Investor. None of the rights of any Investor
under this Agreement shall be transferred or assigned to any Person (including,
without limitation, a Qualifying Holder) that acquires Registrable Shares in the
event that and to the extent that such Person is eligible to resell such
Registrable Shares pursuant to Rule 144(k) of the Securities Act or may
otherwise resell such Registrable Shares pursuant to an exemption from the
registration provisions of the Securities Act. After any transfer in accordance
with this Section 13, the rights and obligations of an Investor as to any
transferred Registrable Shares shall be the rights and obligations of the
Investor Permitted Transferee holding such Registrable Shares.
14. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and it also supersedes any and all prior negotiations, correspondence,
agreements or understandings with respect to the subject matter hereof.
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15. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or terminated, and no
rights or provisions may be waived, except with the written consent of the
Majority Holders and the Company.
(b) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California, and shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors or assigns, provided that the terms and
conditions of Section 13 hereof are satisfied. This Agreement shall also be
binding upon and inure to the benefit of any transferee of any of the Purchased
Shares provided that the terms and conditions of Section 13 hereof are
satisfied. Notwithstanding anything in this Agreement to the contrary, if at any
time any Investor shall cease to own any Purchased Shares, all of such
Investor's rights under this Agreement shall immediately terminate.
(c) (i) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by courier (overnight or same day) or telecopy or
delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(ii) All correspondence to the Company shall be addressed as follows:
STAAR Surgical Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxx
Chief Financial Officer
Telecopier: (000) 000-0000
with a copy to:
Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
(iii) All correspondence to any Investor shall be sent to such Purchaser
at the address set forth in Exhibit A.
(d) Any person may change the address to which correspondence to it is to
be addressed by notification as provided for herein.
(e) The parties acknowledge and agree that in the event of any breach of
this Agreement, remedies at law may be inadequate, and each of the parties
hereto shall be entitled to seek specific performance of the obligations of the
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other parties hereto and such appropriate injunctive relief as may be granted by
a court of competent jurisdiction.
(f) This Agreement may be executed in a number of counterparts, any of
which together shall for all purposes constitute one Agreement, binding on all
the parties hereto notwithstanding that all such parties have not signed the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
STAAR SURGICAL COMPANY
By:
Name:
Title:
THE INITIAL INVESTOR'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE
HEREWITH SHALL CONSTITUTE THE INITIAL INVESTOR'S SIGNATURE TO THIS REGISTRATION
RIGHTS AGREEMENT.
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Exhibit A
Name and Address
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To be filled-in.
A-1
Exhibit B
Instrument of Adherence
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Reference is hereby made to that certain Registration Rights Agreement,
dated as of June __, 2004, among STAAR Surgical Company, a Delaware corporation
(the "Company"), the Initial Investors and the Investor Permitted Transferees,
as amended and in effect from time to time (the "Registration Rights
Agreement"). Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of [___________]
shares of common stock, par value $0.01 per share (the "Common Stock"), of the
Company, hereby agrees that, from and after the date hereof, the undersigned has
become a party to the Registration Rights Agreement in the capacity of an
Investor Permitted Transferee, and is entitled to all of the benefits under, and
is subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Investor Permitted
Transferees. This Instrument of Adherence shall take effect and shall become a
part of the Registration Rights Agreement immediately upon execution.
Executed as of the date set forth below under the laws of California.
Signature: ______________________________
Name:
Title:
Accepted:
STAAR SURGICAL COMPANY
By: _________________________
CONTACT
TITLE
Date: _________, 200__
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