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EXHIBIT 2.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of the 31st day of August, 2001, by and among Laser Vision
Centers, Inc., a Delaware corporation (the "Company"), and each of the holders
of the Common Stock (as defined below) set forth on Exhibit A hereto (each a
"Shareholder" and, collectively, the "Shareholders").
WITNESSETH:
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of
August 9, 2001 (the "Purchase Agreement"), by and among the Company and the
Sellers named therein, the Shareholders have acquired an aggregate of Two
Million One Hundred Twenty-Nine Thousand Eighty-Five (2,129,085) shares of the
Company's Common Stock; and
WHEREAS, as a condition to closing the transactions contemplated by the
Purchase Agreement, the parties agreed to execute and deliver this Agreement
setting forth certain rights of the Shareholders with respect to registration
under the Securities Act of 1933, as amended, of the shares of Common Stock held
by the Shareholders.
NOW, THEREFORE, in consideration of these premises, the covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the parties hereto
agree as follows:
ARTICLE 1
Registration of Registrable Securities
1.1 Certain Definitions. For purposes of this Agreement the
following terms shall have the following meanings:
(a) "Act" means the U.S. Securities Act of 1933, as
amended, or any successor statute, and the rules and regulations of the
Commission issued under the Act.
(b) "Affiliate" means, with respect to any Person, any
Person directly or indirectly controlling, controlled by, or under common
control with such Person.
(c) "Commission" means the U.S. Securities and Exchange
Commission, or any other Federal agency then administering the Act.
(d) "Common Stock" shall mean shares of the Company's
Common Stock, $.01 per value per share, and any stock or securities issued with
respect to such Common Stock by reason of a stock dividend, stock split,
combination of shares, recapitalization, reclassification, merger,
consolidation, corporate reorganization or otherwise.
(e) "Exchange Act" means the Securities Exchange Act of
1934, as amended, and any successor statute, and the rules and regulations of
the Commission issued under the Exchange Act.
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(f) "Holder" means (i) the Shareholder, and (ii) any
other person holding Registrable Securities to whom the registration rights set
forth in this Agreement have been transferred pursuant to Section 1.7.
(g) "Participating Holder" means any Holder of any
Registrable Securities included in a registration.
(h) "Person" means any individual, corporation,
partnership, limited liability company, trust or any other incorporated or
unincorporated entity or organization of any kind.
(i) "Prospectus" means the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by any Registration Statement and all other amendments and
supplements to the prospectus, including post-effective amendments and all
materials incorporated by reference in such prospectus.
(j) "Register," "registered" and "registration" refer to
a registration effected by preparing and filing a Registration Statement in
compliance with the Act and the declaration or ordering of effectiveness of such
Registration Statement;
(k) "Registrable Securities" means shares of Common Stock
issued to the Shareholder pursuant to the Purchase Agreement; provided, however,
that Registrable Securities shall cease to be Registrable Securities upon any
sale pursuant to a Registration Statement or Section 4(1) of the Act or Rule 144
(or any combination thereof), and provided, further, that, at such times as the
entire amount of otherwise Registrable Securities may be sold by the Holder
thereof without any volume limitation, including without limitation by reason of
aggregation or attribution, pursuant to Rule 144 or any successor rule, such
shares not be deemed to be Registrable Securities.
(l) "Registration Expenses" shall mean all reasonable and
customary expenses of the Company incident to performance of or compliance with
this Agreement, including, without limitation: (i) all Commission, stock
exchange or registration and filing fees; (ii) filings pursuant to the policy of
the National Association of Securities Dealers, Inc. with respect to the review
of corporate financing; (iii) all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including reasonable fees
and disbursements of counsel in connection with "blue sky" qualification of any
of the Registrable Securities and the preparation of a Blue Sky Memorandum);
(iv) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, Prospectus,
certificates and other documents relating to the performance of and compliance
with this Agreement; (v) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on the principle
securities exchange or exchanges or automated quotation system on which shares
of the same class are listed or quoted; (vi) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company. Registration Expenses shall specifically exclude: underwriting
discounts and commissions relating to the sale or disposition of Registrable
Securities by the Holders and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by the Holders; and the fees and
disbursements of one counsel for the Holders.
(m) "Registration Statement" means any registration
statement of the Company and any other entity required to be a registrant with
respect to such registration statement pursuant to the requirements of the Act,
including any Prospectus, and all amendments and supplements
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to any such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in any such registration
statement.
(n) "Rule 144" means Rule 144 under the Act (or any
successor rule that may be adopted by the Commission).
(o) "Rule 145" means Rule 145 under the Act (or any
successor rule that may be adopted by the Commission).
(p) "Rule 415" means Rule 415 under the Act (or any
successor rule that may be adopted by the Commission).
(q) "Rule 424" means Rule 424 under the Act (or any
successor rule that may be adopted by the Commission).
(r) "Shelf Registration" means a "shelf" registration
statement on an appropriate form pursuant to Rule 415.
(s) "Underwritten Offering" means an offering in which
securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement under the Act.
1.2 Demand Registrations.
(a) Requests for Registration. At any time following May
31, 2002, as set forth in this Section 1.2, the Holders of a majority of the
Registrable Securities may in writing request registration under the Act of all
or part of their Registrable Securities. Each request for registration shall
state that it is being made pursuant to this Section 1.2 and shall specify the
number of Registrable Securities requested to be registered. Within ten days
after such notice has been given, the Company shall give written notice to all
other Holders, if any, of such requested registration. Each such Holder shall
have the right, by giving written notice to the Company within 30 days after the
Company gives its notice, to elect to have included in such registration such of
its Registrable Securities as such Holder may request in such notice of
election. Upon a request for a Demand Registration, the Company shall use its
best efforts to effect as expeditiously as possible the registration, in
accordance with Section 1.4, of all Registrable Securities which the Company has
been requested to so register. Each registration requested pursuant to this
Section 1.2 is referred to herein as a "Demand Registration." If the Company
notifies the Holders in writing, prior to a request for a Demand Registration
from the Holders, of the Company's intent to register securities with the
Commission, and the Company effects a registration in accordance with Section
1.3, the Holders' request shall be governed by Section 1.3 and shall not
constitute a Demand Registration.
(b) Limitations on Demand Registrations.
(i) The Company shall not be required to effect more
than one Demand Registration.
(ii) If the Board of Directors of the Company, acting
in good faith, determines that the registration and distribution of Registrable
Securities (or the use of the Registration Statement or related Prospectus)
resulting from a Demand Registration would:
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(A) materially and adversely interfere with any
announced business combination transaction involving the Company; or
(B) result in the premature disclosure of any
material pending financing, acquisition, corporate reorganization or any other
corporate development involving the Company or any of its subsidiaries;
then, in either such event, the Company shall promptly give the Holders written
notice of such determination. The Company shall thereupon have the right to
delay the filing or the effectiveness (but not the preparation) of the
Registration Statement for the Demand Registration for a reasonable period of
time, but in no event more than 120 days after the date that the request for a
Demand Registration was made; provided that in the event of such delay, the
Holders of a majority of the Registrable Securities to be included in such
Demand Registration will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration will not count as a Demand
Registration, and responsibility for Registration Expenses incurred by the
parties prior to such delay shall be allocated in accordance with Section
1.2(e). The Company may not exercise this right to delay a Demand Registration
more than once during any period of twelve consecutive months.
(c) Underwriting Requirements. In connection with any
Demand Registration involving an Underwritten Offering, the Company shall
(together with all Holders proposing to distribute their securities through such
Underwritten Offering) enter into an underwriting agreement in customary form
with the representative of the underwriter or underwriters of recognized
national or regional standing selected for such Underwritten Offering by the
Holders of a majority of the Registrable Securities proposed to be sold pursuant
to such Demand Registration and reasonably acceptable to the Company.
(d) Expenses of Demand Registration. Except as provided
in Section 1.2(e), all Registration Expenses incurred in connection with a
Demand Registration shall be borne by the Company. Underwriting discounts and
commissions relating to the sale or disposition of Registrable Securities by the
Holders and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by the Holders, all shall be borne by the Holders. The
cost of preparing all documents incorporated by reference or otherwise required
to be prepared in the ordinary course of the Company's business shall be borne
by the Company. Expenses to be borne by the Holders shall be allocated to each
Holder in the same proportion as the amount of Registrable Securities owned by
such Holder which are included in the Demand Registration bears to the amount of
Registrable Securities owned by all Holders which are included in the Demand
Registration.
(e) Withdrawal of Demand Registration. Holders of a
majority of the Registrable Securities proposed to be registered in a given
Demand Registration may elect to withdraw such Demand Registration at any time
by giving written notice thereof to the Company. Any Demand Registration so
withdrawn shall not constitute a Demand Registration hereunder. The Registration
Expenses incurred in any withdrawn Demand Registration shall be borne solely by
the Holders unless (i) the Holders agree to forfeit their right to a Demand
Registration, in which case all such Registration Expenses shall be borne by the
Company, (ii) the Demand Registration was withdrawn as a result of the election
of the Company to delay the registration in accordance with Section 1.2(b), in
which case all such Registration Expenses shall be borne by the Company and, in
addition, the Company shall pay all of the fees and disbursements of counsel to
the Holders incurred prior to such delay, or (iii) the Company continues to
pursue such registration with respect to securities to be sold for the Company's
own account or the account of others, in which case all such Registration
Expenses shall be borne by the Company.
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1.3 Piggyback Registrations. If the Company proposes to register
any of its Common Stock under the Act and the registration form to be used can
be used to register the resale of the Common Stock (other than a Registration
Statement (A) on Form S-8 or any successor form relating to securities issuable
pursuant to any benefit plan; (B) on Form S-4, or any successor form relating to
an exchange offer or relating to a transaction pursuant to Rule 145, or (C) on
Form S-3 or any successor form with respect to securities registered in
connection with dividend reinvestment plans or similar plans only), the Company
shall, each such time, promptly give the Holders written notice of such
determination to effect such a registration not later than 15 days prior to the
anticipated date of initial filing with the Commission of the Registration
Statement. Upon the written request of any of the Holders given within 10 days
after the date that the Company gives its notice, as part of the registration to
which such notice relates, the Company shall use its best efforts to effect as
expeditiously as possible the registration of all Registrable Securities that
the Holders have requested to be registered.
(a) Underwritten Offerings. If the registration of which
the Company gives notice is for an Underwritten Offering, then the Company shall
so advise the Holders as a part of such written notice. In such event, the right
of the Holders to registration pursuant to this Section shall be conditioned
upon the Holders' agreeing to participate in such Underwritten Offering upon the
terms and condition as shall be negotiated by the Company, and the inclusion of
the Registrable Securities in the Underwritten Offering to the extent provided
herein. The Holders proposing to distribute securities through such Underwritten
Offering shall (together with the Company) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
Underwritten Offering by the Company. Notwithstanding any other provisions of
this Section, if the managing underwriter determines in writing, in its sole and
absolute discretion, that marketing factors, including the price at which such
securities will be sold, require a limitation of the number of shares to be
underwritten, then the underwriters may exclude some or all Registrable
Securities from such registration and Underwritten Offering in accordance with
the provisions of this Section. The Company shall so advise the Holders
distributing securities through such Underwritten Offering, and the number of
Registrable Securities that may be included in the registration and Underwritten
Offering on behalf of the Holders shall be allocated among the Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities which the Holders requested to be included in the registration. If
the Holders disapprove of the terms of any such Underwritten Offering, then the
Holders may elect to withdraw therefrom by giving written notice to the Company
and the underwriters. Any securities so excluded or withdrawn from such
Underwritten Offering shall be withdrawn from such registration.
(b) Expenses of Piggyback Registrations. In the case of
any registration effected pursuant to this Section 1.3, all Registration
Expenses incurred in connection therewith shall be borne by the Company, except
that Underwriting discounts and commissions relating to the sale or disposition
of Registrable Securities by the Holders and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by the Holders, all shall be
borne by the Holders. The cost of preparing all documents incorporated by
reference or otherwise required to be prepared in the ordinary course of the
Company's business shall be borne by the Company. Expenses to be borne by the
Holders shall be allocated to each Holder in same proportion which the
Registrable Securities owned by such Holder which are included in the
registration bears to the Registrable Securities owned by all Holders which are
included in the registration.
1.4 Registration Procedures. If and whenever the Company shall be
required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Act as provided in this Agreement, the Company
shall (and, with respect only to Sections 1.4(i) and (j), the Holders shall) as
expeditiously as reasonably possible:
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(a) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities on any form for which the
Company then qualifies or that counsel for the Company shall deem appropriate,
and which form shall be available for the sale of the Registrable Securities in
accordance with the methods of distribution thereof intended by the Holders
participating in such registration, and use its best efforts to cause such
Registration Statement to become and remain effective;
(b) prepare and file with the Commission amendments and
post-effective amendments to such Registration Statement and such amendments
and supplements to the Prospectus used in connection therewith as may be
necessary to maintain the effectiveness of such registration or as may be
required by the rules, regulations or instructions applicable to the
registration form utilized by the Company or by the Act for a Shelf Registration
if requested by the Holders of a majority of the Registrable Securities to be
included in such registration, or otherwise necessary to keep such Registration
Statement effective to permit the methods of distribution intended by the
Holders participating in such registration and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424, and to otherwise comply with the
provisions of the Act with respect to the disposition of all securities covered
by such Registration Statement in the manner reasonably requested by the Holders
of a majority of the Registrable Securities to be included in such registration
until the earlier of (x) such time as all of the Registrable Securities have
been disposed of in accordance with the intended methods of disposition, and (y)
the expiration of six months after the effective date of such Registration
Statement (it being understood that the Company at its option may determine to
maintain such effectiveness for a longer period, whether pursuant to a Shelf
Registration or otherwise); provided, however, that a reasonable time before
filing a Registration Statement or Prospectus, or any amendments or supplements
thereto (other than reports required to be filed by it under the Exchange Act),
the Company shall furnish to the Participating Holders, the managing underwriter
and their respective counsel for review and comment, copies of all documents
proposed to be filed;
(c) furnish to the Participating Holders and to any
underwriter in connection with an Underwritten Offering such number of conformed
copies of such Registration Statement and of each amendment and post-effective
amendment thereto (in each case including all exhibits) and such number of
copies of any preliminary Prospectus, Prospectus or Prospectus supplement and
such other documents as the Participating Holders or underwriter may reasonably
request in order to facilitate the disposition of the Registrable Securities by
the Participating Holders or underwriters (the Company hereby consenting to the
use (subject to the limitations set forth in Section 1.4(j) hereof) of the
Prospectus or any amendment or supplement thereto in connection with such
disposition);
(d) use its best efforts to register or qualify the sale
of such Registrable Securities covered by such Registration Statement under such
other securities or "blue sky" laws of such jurisdictions as the Participating
Holders shall reasonably request, except that the Company shall not for any such
purpose be required to (i) qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this Section
1.4(d), it would not be obligated to be so qualified, (ii) subject itself to
taxation in any such jurisdiction, or (iii) to consent to general service of
process in any such jurisdiction;
(e) notify the Participating Holders, at any time when a
Prospectus relating thereto is required to be delivered under the Act within the
appropriate period mentioned in Section 1.4(b) hereof, of the Company's becoming
aware that the Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and, at the
request of any Participating Holder, prepare and
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furnish to such Participating Holder a reasonable number of copies of an
amendment or supplement to such Registration Statement or related Prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such Prospectus shall not include 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 not misleading in light of the
circumstances then existing;
(f) notify the Participating Holders as soon as possible:
(i) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus or for additional
information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any order
preventing the use of a related Prospectus, or the initiation (or any overt
threats) of any proceedings for such purposes; and
(iv) of the receipt by the Company of any written
notification of the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation (or overt threats) of
any proceeding for that purpose;
(g) use its best efforts to cause all such Registrable
Securities to be listed on The Nasdaq Stock Market or any other national
securities exchange or automated quotation system on which the class of
Registrable Securities being registered is then listed, if such Registrable
Securities are not already so listed;
(h) in the event of the issuance of any stop order
suspending the effectiveness of the Registration Statement or of any order
suspending or preventing the use of any related Prospectus or suspending the
qualification of any Registrable Securities included in the Registration
Statement for sale in any jurisdiction, the Company shall use all commercially
reasonable efforts promptly to obtain its withdrawal;
(i) the Participating Holders shall furnish the Company
with such information regarding the Participating Holders and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request in
writing; and
(j) the Participating Holders shall, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 1.4(e) hereof, forthwith discontinue disposition of Registrable
Securities pursuant to the Prospectus or Registration Statement covering such
Registrable Securities until the Participating Holders shall have received
copies of the supplemented or amended Prospectus contemplated by Section 1.4(e)
hereof, and, if so directed by the Company, the Participating Holders shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the Participating Holders' possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
1.5 [Reserved]
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1.6 Rule 144 Reporting. With a view toward making available to the
Holders the benefits of certain rules and regulations of the Commission that may
permit the sale of the Common Stock to the public without registration, the
Company agrees to use its best efforts to:
(a) make and keep current public information available,
within the meaning of Rule 144 or any similar or analogous rule promulgated
under the Act;
(b) file with the Commission, in a timely manner, all
reports and other documents required of the Company under the Act and the
Exchange Act; and
(c) so long as any party hereto owns any Registrable
Securities, furnish to such party forthwith upon request, a written statement by
the Company as to its compliance with the reporting requirements of Rule 144,
the Act and the Exchange Act; a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as such party may
reasonably request in availing itself of any rule or regulation of the
Commission allowing it to sell any such securities without registration.
1.7 Transfer of Registration Rights. The registration rights of
any Shareholder under this Agreement may not be transferred except to any
Affiliate of such Shareholder to whom any of the shares owned by the Shareholder
are transferred; provided, however, that (i) the Company is given written notice
by such Shareholder at the time of such assignment and transfer stating the name
and address of the transferee and identifying the securities with respect to
which the rights under this Agreement are being assigned and transferred, and
(ii) the transferee executes such documents as the Company may request
evidencing the transferees agreement to be bound by the restrictions herein.
For the purposes of this Section 1.7, a change in control of an
Affiliate of a Shareholder holding shares entitling such Affiliate to the
registration rights hereunder, such that such Affiliate is subsequent to such
change of control no longer an Affiliate of such Shareholder, shall be deemed an
attempted transfer of the registration rights hereunder and such former
Affiliate of such Shareholder shall not be entitled to such registration rights.
1.8 Restriction on Transfer of Shares. Each Holder agrees that
notwithstanding any registration of Shares pursuant to this Agreement, the
shares held by such Holder shall be subject to the restrictions set forth in
Section 13.2 of the Purchase Agreement.
ARTICLE 2
Indemnification
2.1 General Indemnification. In connection with any registration
or qualification of the Registrable Securities under this Agreement, (i) the
Company shall indemnify and hold harmless each of the Holders, including but not
limited to each Person', if any, who controls a Holder within the meaning of
Section 15 of the Act, against all losses, claims, damages, liabilities and
expenses (including but not limited to reasonable expenses incurred in
investigating, preparing and defending against any claim) to which a Holder or
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as the same arise out of or are based upon or are caused by
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) furnished
pursuant to this Agreement or insofar as the same arise out of or are based upon
or are caused by any omission or alleged omission to state therein a material
fact required to be stated therein or
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necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are ultimately determined to
have arisen out of or were based upon or were caused by any untrue statement or
alleged untrue statement or omission or alleged omission based upon written
information furnished to the Company by or on behalf of any Holder or any such
control person for inclusion in any Registration Statement or Prospectus (and
any amendments or supplements thereto), and (ii) each Holder, severally and not
jointly, shall indemnify the Company, its affiliates, any person who signed any
Registration Statement, and their respective officers, directors and control
persons against all such losses, claims, damages, liabilities and expenses
(including but not limited to reasonable expenses incurred in investigating,
preparing and defending against any claim) insofar as the same are ultimately
determined to have arisen out of or were based upon or were caused by any such
untrue statement or alleged untrue statement or any such omission or alleged
omission based upon written information furnished to the Company by or on behalf
of such Holder or any such control person for the inclusion in any Registration
Statement or Prospectus (and any amendments or supplements thereto).
2.2 Notice of, and Procedures for, Collecting Indemnification.
Promptly upon receipt by a party indemnified under this Agreement of notice of
the commencement of any action against such indemnified party in respect of
which indemnity or reimbursement may be sought against any indemnifying party
under this Agreement, such indemnified party shall notify the indemnifying party
in writing of the commencement of such action, but the failure so to notify the
indemnifying party shall not relieve it of any liability which it may have to
any indemnified party otherwise than under this Agreement unless such failure
shall materially and adversely affect the defense of such action. In case notice
of commencement of any such action shall be given to the indemnifying party as
above provided, the indemnifying party shall be entitled to participate in and,
to the extent it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such indemnified party. The
indemnified party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel (other than reasonable expenses incurred in investigating, preparing and
defending against any claim) shall be paid by the indemnified party unless (a)
the indemnifying party agrees to pay the same, (b) the indemnifying party fails
to assume the defense of such action with counsel reasonably satisfactory to the
indemnified party (in which case the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party), or
(c) the named parties to any such action (including any impleaded parties) have
been advised by such counsel that representation of such indemnified party and
the indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf of
such indemnified party). In the event that either of the circumstances described
in clauses (b) and (c) of the sentence immediately preceding shall occur, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defense and otherwise to participate in the defense of any
such action, with the expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred. No indemnifying party shall be liable for any settlement
entered into without its consent, which consent shall not be unreasonably
withheld or delayed.
2.3 Contribution. If the indemnification provided for in this
Article 2 is unavailable to an indemnified party under paragraphs (a) and (b)
hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims or damages (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Holder(s) on the other hand from the offering of
the Registrable Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
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above but also the relative fault of the Company on the one hand and the
Holder(s) on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Holder(s) on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bears to the total net proceeds from
the offering (before deducting expenses) received by the Investor(s), in each
case as set forth in the table on the cover page of the prospectus. The relative
fault of the Company on the one hand and the Holder(s) on the other hand 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 Company or by the
Holder(s) and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
ARTICLE 3
Miscellaneous
3.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing and shall be given to such party at its
address or telecopier number set forth on the signature page hereof, or such
other address or telecopier number as such party may hereinafter specify for the
purpose. Each such notice, request or other communication shall be effective (a)
if given by telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section 3.1 and the transmitting telecopier receives
confirmation of delivery, (b) if given by overnight air courier, on the next
business day after the date of shipment, or (c) if given by any other means,
when delivered at the address referred to in, or specified by such party
pursuant to, this Section 3.1.
3.2 Amendment and Waiver. The provisions of this Agreement may be
amended or waived only upon the prior written consent of the Company and the
Holders of a majority of the Registrable Securities.
3.3 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
3.4 Binding on Successors and Assigns. Except as set forth in
Section 1.7, no party may assign any of its rights or delegate any of its duties
under this Agreement without the prior consent of the other party. This
Agreement shall be binding upon, inure to the benefit of and be enforceable by
and against the parties hereto and their respective successors and permitted
assigns in accordance with the terms hereof.
3.5 Headings. The headings in the sections and subsections of this
Agreement are inserted for convenience only and in no way alter, amend, modify,
limit or restrict the contractual obligations of the parties.
3.6 Severability. Whenever possible, each provision of this
Agreement will 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 will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
3.7 Arbitration. Any and all disputes relating to this Agreement
and the transactions contemplated hereby (including, without limitation, that a
party hereto is entitled to indemnification
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and/or the amount thereof) shall be settled by binding arbitration conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association before a panel of three commercial arbitrators in Kansas City,
Missouri. Each disputing party shall select a single arbitrator, and the two
arbitrators so selected shall select a third arbitrator. If such arbitrators
cannot agree upon a third arbitrator within 30 days after their appointment,
then an arbitrator shall be appointed by the American Arbitration Association.
The arbitrators may not consolidate arbitration proceedings under this Agreement
with other pending arbitration proceedings without the prior written consent of
the participants. The Commercial Arbitration Rules, as applied to any
arbitration conducted pursuant hereto, may be modified with the mutual consent
of the participants or upon the unanimous agreement of the three arbitrators.
The decision and/or award of a majority of such arbitrators shall be final and
binding upon all parties having an interest in the dispute. The award of the
arbitrators will include a reasoned opinion. Any participant may enter a
judgment upon the award rendered by the arbitrators in any court having
jurisdiction over the dispute.
3.8 Entire Agreement; Law Governing. All prior negotiations and
agreements between the parties hereto are superseded by this Agreement, and
there are no representations, warranties, understandings or agreements other
than those expressly set forth herein, except as modified in writing
concurrently herewith or subsequent hereto. This Agreement shall be governed by
and construed and interpreted according to the internal laws of the State of
Missouri, determined without reference to conflicts of law principles.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
LASER VISION CENTERS, INC.
By:/s/ Xxxxxx X. May
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Name: Xxxxxx X. May
---------------------------------------
Title: Vice Chairman and General Counsel
---------------------------------------
Address: 000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
-------------------------------------
Xx. Xxxxx, Xxxxxxxx 00000
-------------------------------------
Fax No. (000) 000-0000
-----------------------------
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SHAREHOLDER:
CLEARVISION LASER CENTERS, INC.
By /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------
Title: Chief Executive Officer
-------------------------------
Address: 000 Xxxxx Xxxxxxxxx, 0xx Xxxxx
--------------------------------
Xxxxxxxx, Xxxxxxxx 00000
----------------------------------------
Fax No. (000) 000-0000
------------------------
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EXHIBIT A
SHAREHOLDER
ClearVision Laser Centers, Inc.
