EXHIBIT 10.53
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of January
18, 2000, by and among LaserSight Incorporated, a Delaware corporation (the
"Company"), with headquarters located at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxxxxxx 00000, and Xxxx X. Xxxx, M.D. and Xxxxxx Xxxxxxx
(collectively, "Licensors"), with regard to the following:
RECITALS
A. In connection with the First Amendment to License and
Royalty Agreement dated of even date herewith by and among the LaserSight
Technologies, Inc., a wholly owned subsidiary of the Company, and Licensors (the
"Amendment"), the Company has agreed, upon the terms and subject to the
conditions contained therein, to issue to Licensors shares of the Company's
common stock, par value $.001 per share (the "Common Stock"). The shares of
Common Stock to be issued to Licensors under the License Agreement shall be
referred to herein as the "Securities".
B. To induce Licensors to execute and deliver the Amendment,
the Company has agreed to provide to Licensors certain rights to a registration
of the Securities by the Company under the Securities Act of 1933 and the rules
and regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws.
AGREEMENTS
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Licensors agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
specified:
Advice: See Section 4 hereof.
------
Agreement: See the introductory paragraphs hereto.
---------
Amendment: See the introductory paragraphs hereto.
---------
Blackout Event means a determination by the Board made in good faith,
--------------
after consulting with outside securities counsel, that the registration of
Registrable Securities under the Securities Act or the continuation of the
disposition of Registrable Securities pursuant to an effective Piggy-Back
Registration Statement at such time (i) would have a material adverse effect
upon a proposed material sale of all (or substantially all) of the assets of the
Company or a material merger, reorganization, recapitalization or similar
current transaction materially affecting the capital structure or equity
ownership of the Company, or (ii) would require the Company to make a public
disclosure of information, which disclosure would have a material adverse effect
on the Company.
Blackout Period: See Section 3(a) hereof.
---------------
Board: The Board of Directors of the Company.
-----
Claim: See Section 6(a) hereof.
-----
Common Stock: See the introductory paragraphs hereto.
------------
Company: See the introductory paragraphs hereto.
-------
Exchange Act: The Securities Exchange Act of 1934 and the rules and
------------
regulations of the SEC promulgated thereunder.
Form S-3: Form S-3 of the SEC under the Securities Act or any successor
--------
form.
Holdback Period: See Section 3(b) hereof.
---------------
Holder: Any registered holder of a Registrable Security or Registrable
------
Securities, including, without limitation, the Licensors (and any of Licensors'
assignees).
Indemnified Person: See Section 6(c) hereof.
------------------
Indemnifying Person: See Section 6(c) hereof.
-------------------
Licensors: See the introductory paragraphs hereto.
---------
Losses: See Section 6(a) hereof.
------
NASD: See Section 4(j) hereof.
----
Other Holders: See Section 2(a) hereof.
-------------
Other Shares: See Section 2(a) hereof.
------------
Other Investors: Any holder of equity securities of the Company or any
securities convertible into or exercisable or exchangeable for such equity
securities, which holder is entitled by written agreement with the Company to
have some or all of such securities included in a Piggy-Back Registration
Statement.
Participant: See Section 6(a) hereof.
-----------
Person: An individual, trustee, corporation, partnership, limited
------
liability company, trust, unincorporated association, business association, firm
or other legal entity.
Piggy-Back Registration Statement: See Section 2(a) hereof.
---------------------------------
Prospectus: The prospectus included in any Piggy-Back Registration
----------
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Registrable Securities means any of the Securities. As to any
-----------------------
particular Registrable Securities held by a Holder, such securities shall cease
to be Registrable Securities when (i) a Piggy-Back Registration Statement with
respect to the offering of such securities by the Holder thereof shall have been
declared effective under the Securities Act and such securities shall have been
disposed of by such Holder pursuant to such Piggy-Back Registration Statement,
(ii) such securities may at the time of determination be sold to the public
pursuant to Rule 144 without any restriction on the amount of securities which
may be sold by such Holder without the lapse of any further time or the
satisfaction of any condition, or (iii) such securities shall have been
otherwise transferred by such Holder and new certificates for such securities
not bearing a legend restricting further transfer shall have been delivered by
the Company or its transfer agent, and subsequent disposition of such securities
shall not require registration or qualification under the Securities Act or any
similar state law.
Registration Expenses: See Section 5(b) hereof.
---------------------
Registration Period: See Section 2(c) hereof.
-------------------
Registration Statement: Any registration statement of the Company filed
----------------------
with the SEC under the Securities Act, including the Prospectus, all amendments
and supplements to such registration statement, post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Requested Shares: See Section 2(a) hereof.
----------------
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
--------
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC providing for public offers and sales of securities made in
compliance therewith resulting in offers and sales by subsequent holders that
are not affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities Act.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
--------
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission or any successor federal
---
agency charged with the enforcement of the federal securities laws.
Securities Act: See the introductory paragraphs hereto.
--------------
Subsidiary: Any corporation of which the Company owns securities
----------
representing a majority of the outstanding voting power or any partnership of
which the Company (or a Subsidiary) holds a majority of the general partner
interest.
Underwritten Offering: A public offering of Common Stock, or other
----------------------
securities convertible into, or exercisable or exchangeable for, Common Stock
that is underwritten on a firm commitment basis; provided that such offering
shall be exclusively for the account of any one or more of the Company or
Licensors (or any of Licensors' assignees).
2. PIGGY-BACK REGISTRATION RIGHTS
(a) If during the Registration Period (as defined herein) the
Company proposes or is required to file with the SEC a registration statement
under the Securities Act relating to any shares of Common Stock (other than a
registration statement on Form S-8 or Form S-4 or any successor forms thereto,
or any other registration statement that does not permit the inclusion therein
of the Registrable Securities) (the "Piggy-Back Registration Statement"), the
Company will each such time give prompt written notice of its intention to do so
to each Holder. Upon the written request of any Holder given within 10 days
after the delivery or mailing of such notice from the Company, the Company will
use commercially reasonable efforts to include in such Piggy-Back Registration
Statement that number of the Securities specified by Holder in such written
request (subject to the limitations set forth in this Section 2(a) and in
Section 2(b) below) (the "Requested Shares") so as to permit the public sale of
such Requested Shares, provided that if the managing underwriter or underwriters
advise the Company that marketing factors require a limit on the number of
shares to be underwritten, the Company may (subject to the limitations set forth
below) exclude all Requested Shares from, or limit the number of Requested
Shares to be included in, the Piggy-Back Registration Statement and
underwriting. In such event, the Company shall so advise each requesting Holder,
and the number of Requested Shares and other shares ("Other Shares") requested
to be included in such Piggy-Back Registration Statement and underwriting by
other persons or entities that are then stockholders of the Company ("Other
Holders"), after providing for all shares that the Company proposes to offer and
sell for its own account, shall be allocated among the Requesting Holders and
Other Holders pro rata on the basis of (i) the number of Requested Shares then
held by the requesting Holders, and (ii) the aggregate number of Other Shares
then held by Other Holders.
(b) The right of any Holder to registration shall be conditioned
upon (i) such Holder's execution of the underwriting agreement agreed to among
the Company and the managing underwriters selected by the Company for such
underwritten offering, (ii) such Holder's completion and execution of all
customary questionnaires and other documents which must be executed in
connection with such underwriting agreement, and (iii) such Holder supplying the
Company and the underwriter such additional information as may be necessary to
register such Holder's Registrable Securities.
(c) The registration rights granted pursuant to this Section 2,
shall commence on July 15, 2000 and continue until the first to occur of (i) the
date on which all of the Securities have been sold by the Holders, and (ii) the
date on which all of the Securities may be immediately sold to the public
without registration conditions or limitations, whether pursuant to Rule 144 or
otherwise. The period of time commencing on July 15, 2000 and ending on the
earliest of the dates described in items (i) and (ii) of this Section 2(c) shall
be referred to as the "Registration Period".
3. BLACKOUT AND HOLDBACK EVENTS
(a) During any period of up to 90 days' duration following the
occurrence of a Blackout Event (a "Blackout Period"), the Company shall not be
required to file, or cause to be declared effective, under the Securities Act
any Piggy-Back Registration Statement hereunder, or, if applicable, the Holders
will discontinue the offer and sale of Registrable Securities pursuant to the
Piggy-Back Registration Statement.
(b) The Holders shall not, if requested by the managing underwriter
or underwriters of an Underwritten Offering, effect any public or private sale
of any Common Stock, including a sale pursuant to Rule 144, during the period
("Holdback Period") beginning 14 days prior to, and ending 90 days after, the
effective date of the registration statement relating to such Underwritten
Offering.
(c) The Company shall promptly notify the Holders in writing of
any decision not to file a Piggy-Back Registration Statement or not to
cause a Piggy-Back Registration Statement to be declared effective or to
discontinue sales of Registrable Securities pursuant to this Section 3, which
notice shall set forth the reason for such decision (but not disclosing
any nonpublic material information) and shall include an undertaking by the
Company promptly to notify the Holders as soon as sales may resume.
4. REGISTRATION PROCEDURES
In connection with the filing of a Piggy-Back Registration Statement by
the Company, the Company shall effect such registrations to permit the sale of
the Registrable Securities covered thereby in accordance with the intended
method or methods of disposition thereof, and in connection with such Piggy-Back
Registration Statement the Company shall:
(a) Prior to the filing of the Piggy-Back Registration Statement or
any Prospectus or any amendments or supplements thereto, the Company shall
provide Licensors with a copy of such Piggy-Back Registration Statement or any
Prospectus or any amendments or supplements thereto.
(b) Notify the selling Holders of Registrable Securities promptly
(but in any event within five business days), and confirm such notice in
writing: (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Piggy-Back Registration
Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, and (ii) of the issuance by the SEC of any stop order suspending
the effectiveness of a Piggy-Back Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose.
(c) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Piggy-Back Registration Statement or
of any order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction and, if any such order is issued, to use
its reasonable best efforts to obtain the withdrawal of any such order at the
earliest practicable time.
(d) Furnish to each selling Holder of Registrable Securities at
the sole expense of the Company one conformed copy of the Piggy-Back
Registration Statement, as applicable, and each post-effective amendment
thereto.
(e) Deliver to each selling Holder of Registrable Securities at
the sole expense of the Company as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto; and, subject to the last paragraph of this Section 4, the Company
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto.
(f) Prior to any public offering of Registrable Securities, to use
its reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Securities in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any selling Holder reasonably
requests; keep each such registration or qualification (or exemption therefrom)
effective during the period such Piggy-Back Registration Statement is required
to be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Piggy-Back Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 4(f), (ii) subject itself to general
taxation in any such jurisdiction, (iii) file a general consent to service of
process in any such jurisdiction, (iv) provide any undertakings that cause the
Company material expense or burden, or (v) make any change in its charter or
by-laws, which in each case the Board determines to be contrary to the best
interests of the Company and its stockholders.
(g) Cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form in compliance with any applicable
rules of a stock exchange on which the Common Stock is then listed; and enable
such Registrable Securities to be in such denominations and registered in such
names as Holders may reasonably request.
(h) Upon the occurrence of any event or any information becoming
known to the Company that makes any statement made in such Piggy-Back
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect,
as promptly as practicable prepare and (subject to Section 4(a) hereof) file
with the SEC, at the sole expense of the Company, a supplement or post-effective
amendment to such Piggy-Back Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to Licensors of the Registrable Securities being sold thereunder, any
such Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(i) Comply with all applicable rules and regulations of the SEC
and make generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 90 days after the end of any 12-month period (or 120 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of the Company after the effective date of a
Piggy-Back Registration Statement, which statements shall cover said 12-month
periods.
(j) Cooperate with each seller of Registrable Securities covered by
any Piggy-Back Registration Statement in connection with any filings required to
be made with the National Association of Securities Dealers, Inc. (the "NASD").
(k) Use its reasonable best efforts to cause all Registrable
Securities relating to any Piggy-Back Registration Statement to be
listed on each securities exchange, if any, on which similar securities issued
by the Company are then listed.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Securities of any
seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request. Each seller as to which any
Piggy-Back Registration Statement is being effected agrees to furnish promptly
to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Registrable Securities understands that the Securities
Act may require delivery of a Prospectus in connection with any sale thereof
pursuant to a Piggy-Back Registration Statement, and each such Holder shall
comply with the applicable Prospectus delivery requirements of the Securities
Act in connection with any such sale.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(b)(ii) hereof
or any information becoming known that makes any statement made in such
Piggy-Back Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect, such Holder will forthwith discontinue disposition of such
Registrable Securities covered by such Piggy-Back Registration Statement or
Prospectus to be sold by such Holder until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(e) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto.
5. REGISTRATION EXPENSES
(a) All Registration Expenses shall be borne by the Company.
Notwithstanding the foregoing, the sellers of the Registrable Securities being
registered shall pay all (i) brokerage or underwriting fees, discounts and
commissions attributable to the sale of such Registrable Securities, (ii) the
fees and disbursements of any counsel or other advisors or experts retained by
such sellers (severally or jointly), and (iii) transfer taxes on resale of any
of the Registrable Securities by such sellers.
(b) For purposes of this Agreement, "Registration Expenses" shall mean
all fees and expenses incident to the compliance with this Agreement by the
Company (other than fees and expenses referred to in the second sentence of
Section 5(a) hereof), including, without limitation, (i) all registration and
filing fees, including, without limitation, (A) any SEC or NASD filing fees and
(B) fees and expenses of compliance with state securities or blue sky laws, (ii)
duplicating and copying expenses, (iii) messenger, telephone and delivery
expenses incurred by the Company, (iv) all fees and disbursements of counsel for
the Company, (v) fees and expenses of all other Persons retained by the Company,
including annual or special audit and "comfort" letters, (vi) stock exchange
listing fees and expenses, if any, and (vii) the expenses relating to printing
and distributing the Piggy-Back Registration Statement and any other documents
necessary in order to comply with this Agreement.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless each Holder of
Registrable Securities, the officers and directors of each such Person, and each
Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (collectively, "Losses") (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand (a "Claim")) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Piggy-Back Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented from time to time) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the Prospectus in light
of the circumstances under which they were made, not misleading, except insofar
as such Losses are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Company in writing by such
Participant expressly for use therein; provided, however, that the Company will
not be liable if such untrue statement or omission or alleged untrue statement
or omission was contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto and the Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and any such Loss suffered or incurred by the Participants resulted
from any Claim by any Person who purchased Registrable Securities which are the
subject thereof from such Participant and it is established in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Securities sold to such Person if
required by applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Piggy-Back Registration Statement, and each Person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each Participant, but only with reference to information relating to such
Participant furnished to the Company in writing by such Participant expressly
for use in such Piggy-Back Registration Statement or Prospectus, any amendment
or supplement thereto, or any preliminary prospectus. The liability of any
Participant under this paragraph shall in no event exceed the proceeds received
by such Participant from sales of Registrable Securities giving rise to such
obligations.
(c) If any Claim shall be brought or asserted against any Person in
respect of which indemnity may be sought pursuant to either of the two preceding
paragraphs, such Person (the "Indemnified Person") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may reasonably designate in such Claim and
shall pay the reasonable fees and expenses actually incurred by such counsel
related to such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person, or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person or any affiliate and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The Indemnifying Person shall not, in connection with any one such
proceeding or separate but substantially similar related proceedings in the same
jurisdiction arising out of the same general allegations, be liable for the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and all such fees and expenses shall be reimbursed
promptly as they are incurred. If the Company shall be the Indemnifying Person,
any such separate firm for the Indemnified Persons shall be designated in
writing by Participants who sold a majority in interest of Registrable
Securities sold by all such Participants and reasonably acceptable to the
Company. If the Company shall be the Indemnified Person, any such separate firm
for the Company, its directors, its officers who sign a Piggy-Back Registration
Statement and such control Persons of the Company shall be designated in writing
by the Company. No Indemnifying Person shall be liable for any settlement of any
proceeding effected without its prior written consent (which consent shall not
be unreasonably withheld or delayed), but if settled with such consent or if
there be a final judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the Indemnifying Person
shall indemnify and hold harmless each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Persons
(which consent shall not be unreasonably withheld or delayed), effect any
settlement or compromise of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party, or indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
involves only the payment of money damages that are actually paid by the
Indemnifying Person or includes an unconditional written release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 6 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any Losses, then each
Indemnifying Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Person or Persons on the one hand
and the Indemnified Person or Persons on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
Losses (or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Person on the one hand or
such Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the Losses referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses actually
incurred by such Indemnified Person in connection with investigating or
defending any such Claim. Notwithstanding the provisions of this Section 6, in
no event shall a Participant be required to contribute any amount in excess of
the amount by which proceeds received by such Participant from sales of
Registrable Securities exceeds the amount of any damages that such Participant
has otherwise been required to pay or has paid by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(f) Any Losses for which an indemnified party is entitled to
indemnification or contribution under this Section shall be paid by the
Indemnifying Person to the Indemnified Person as such Losses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any of Licensors, any Holder, any person
who controls Licensors or any Holder, or any officers or directors of Licensors
or such Holder, and (ii) any termination of this Agreement.
(g) The indemnity and contribution covenants contained in this Section
6 are in addition to any liability which any Indemnifying Person may otherwise
have to any Indemnified Person.
7. RULE 144
The Company will file the reports required to be filed by it under the
Exchange Act in a timely manner in accordance with the requirements of the
Exchange Act. The Company will also take such further action as any Holder of
Registrable Securities issued by the Company may reasonably request, to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144(k).
8. MISCELLANEOUS
(a) The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of (i) the
Company, and (ii) the Holders of not less than a majority in aggregate amount of
the then-outstanding Registrable Securities; provided, however, that Section 4
and this Section 8(a) may not be amended, modified or supplemented without the
prior written consent of each Holder (including any person who was a Holder of
Registrable Securities disposed of pursuant to any Piggy-Back Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Piggy-Back Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in aggregate amount of
the Registrable Securities being sold by such Holders pursuant to such
Piggy-Back Registration Statement.
(b) Any notice herein required or permitted to be given shall be in
writing and may be personally served or delivered by nationally-recognized
overnight courier or by facsimile-machine confirmed telecopy, and shall be
deemed delivered at the time and date of receipt (which shall include telephone
line facsimile transmission). Each party shall provide notice to the other party
of any change in address. The addresses for such communications shall be:
If to the Company:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
The Lowenbaum Partnership, L.L.C.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
and
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxx
If to Licensors:
Xxxx X. Xxxx, M.D. and Xxxxxx Xxxxxxx
Xxxxx 000 Xx. 00X-00, Xxxxxxxxx 000
Xxxxxxx xx Xxxxxx, Xxxxxxxx
South America
Telecopy:00-0-000-0000 - attn: Xxxxxx Xxxxxxx
Telecopy:00-0-000-0000 - attn: Xxxx X. Xxxx, M.D.
and
Mezullo & XxXxxxxxxx
0000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
(c) This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto, and the Holders;
provided, however, that this Agreement shall not inure to the benefit of, or be
binding upon, a successor or assign of a Holder unless and to the extent such
successor or assign holds Registrable Securities.
(d) This Agreement may be executed in two or more counterparts,
including, without limitation, by facsimile transmission, all of which
counterparts shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause additional
original executed signature pages to be delivered to the other parties.
(e) The headings in this Agreement are for convenience of reference and
shall not form a part of, or affect the interpretation of, this Agreement.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
performed in that state. The parties hereto irrevocably consent to the
jurisdiction of the United States federal courts and state courts located in the
County of New Castle in the State of Delaware, in any suit or proceeding based
on or arising under this Agreement and irrevocably agree that all claims in
respect of such suit or proceeding may be determined in such courts. The parties
hereto irrevocably waive the defense of an inconvenient forum to the maintenance
of such suit or proceeding. The parties hereto further agree that service of
process upon the parties hereto mailed by first class mail shall be deemed in
every respect effective service of process upon each such party in any such suit
or proceeding. Nothing herein shall affect either party's right to serve process
in any other manner permitted by law. The parties hereto agree that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
(g) Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company or its affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
(h) Holders of Registrable Securities are intended third party
beneficiaries of the agreements made hereunder between the Company and Licensors
and shall have the right to enforce this Agreement to the extent they deem such
enforcement necessary or advisable to protect their rights hereunder.
(i) This Agreement, together with the Amendment and the other
agreements among the parties of even date herewith or therewith, is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings among the parties with respect to such
subject matter.
(j) The Company agrees that during the time period beginning on the
dated hereof and continuing until the Company has satisfied its obligations
hereunder or until such obligations have expired, the Company will not enter
into any agreement related to the registration of its securities which is
inconsistent with the rights granted to the Holders pursuant to this Agreement.
The rights granted to Licensors pursuant to this Agreement do not conflict with
any other agreements to which the Company is a party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
LASERSIGHT INCORPORATED LICENSORS
By: /s/Xxxxxxx X. Xxxxxx /s/Xxxx X. Xxxx, M.D.
------------------------- -------------------------
Xxxxxxx X. Xxxxxx Xxxx X. Xxxx, M.D.
President and CEO
/s/Xxxxxx Xxxxxxx
-------------------------
Xxxxxx Xxxxxxx
