REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of September 1, 2006, among OccuLogix, Inc. (the
“Company”),
a
Delaware corporation, and Xxxx X. Xxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxxx,
acting, in each case, in his capacity as a member of the Stockholder
Representative Committee, on behalf of each of the Participating Rights Holders
(defined in the Merger Agreement (defined below)), each of whom is a Holder
(defined below).
This
Agreement is made pursuant to the Agreement and Plan of Merger, dated as of
August 1, 2006, by and among the Company, OccuLogix Mergeco, Inc., Solx, Inc.
and Xxxx X. Xxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxxx, acting, in each case in
his
capacity as a member of the Stockholder Representative Committee referred to
therein, as amended (the “Merger
Agreement”).
The
Company and Xxxx X. Xxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxxx, acting, in each
case, in his capacity as a member of the Stockholder Representative Committee,
on behalf of each of the Participating Rights Holders (defined in the Merger
Agreement (defined below)), each of whom is a Holder (defined below), hereby
agree as follows:
1.
Definitions
Capitalized
terms used and not otherwise defined herein that are defined in the Merger
Agreement have the respective meanings given to such terms in the Merger
Agreement.
As used
in this Agreement, the following terms shall have the following
meanings:
“Advice”
has
the
meaning set forth in Section 6(c).
“Effectiveness
Date”
means
the 90th
calendar
day following the date hereof if the SEC does not conduct a “review” of the
Registration Statement and the 120th
calendar
day following the date hereof if the SEC conducts a “review” of the Registration
Statement.
“Effectiveness
Period”
has
the
meaning set forth in Section 2.
“Filing
Date”
means
the 30th
calendar
day following the date hereof.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time, of Registrable
Securities.
“Indemnified
Party”
has
the
meaning set forth in Section 5(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 5(c).
“Losses”
has
the
meaning set forth in Section 5(a).
“Person”
means
any individual, corporation, partnership, limited liability company, limited
liability partnership, firm, joint venture, association, joint-stock company,
unincorporated organization, trust, trustee, executor, administrator or other
legal personal representative, regulatory body or agency, government or
governmental agency, authority or other entity, howsoever designated or
constituted.
“Plan
of Distribution”
has
the
meaning set forth in Section 2.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in the Registration Statement (including, without
limitation, 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, with respect to the terms of the offering of the
Registrable Securities covered by the Registration Statement, and all other
amendments and supplements to such prospectus, including post-effective
amendments, and all material incorporated, or deemed to be incorporated, by
reference in such prospectus.
“Registrable
Securities”
means
(i) the shares of Parent Common Stock issued by the Company to the Holders,
pursuant to the Merger Agreement, in part payment of the Closing Payment Amount
and (ii) any securities issued or issuable upon any stock split, dividend
or other distribution, recapitalization or similar event with respect to the
foregoing.
“Registration
Statement”
means
the registration statement required to be filed hereunder, including, in each
case, the Prospectus, amendments and supplements to such registration statement
or the Prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated, or deemed to be incorporated, by
reference in such registration statement.
“Rule
144(k)”
means
paragraph (k) of Rule 144 promulgated by the SEC pursuant to the Securities
Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC having substantially the same purpose and effect
as
such paragraph.
“Rule
415”
means
Rule 415 promulgated by the SEC pursuant to the Securities Act, as such rule
may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same purpose and effect as such
rule.
“Rule
424”
means
Rule 424 promulgated by the SEC pursuant to the Securities Act, as such rule
may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same purpose and effect as such
rule.
“Selling
Shareholder Questionnaire”
has
the
meaning set forth in Section 3(a).
“Trading
Day”
means
any day on which the facilities of the NASDAQ Global Market System are open
for
trading.
1
2.
Shelf
Registration.
On or
prior to the Filing Date, the Company shall prepare and file with the SEC
a
“Shelf” Registration Statement covering the resale of all of the Registrable
Securities on the Filing Date for an offering to be made on a continuous
basis
pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except
if
the Company is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case, such registration shall be on another
appropriate form in accordance herewith) and shall contain (unless otherwise
directed by the Stockholder Representative Committee) substantially the
“Plan
of Distribution”
attached hereto as Annex
A
or as
otherwise required by the SEC, the Securities Act and any rules promulgated
thereunder. Subject to the terms of this Agreement, the Company shall use
commercially reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act as promptly as reasonably
practicable after the filing thereof, but in any event prior to the
Effectiveness Date, and shall use commercially reasonable efforts to keep
the
Registration Statement continuously effective under the Securities Act until
all
Registrable Securities covered by the Registration Statement have been sold
or
may be sold without volume restrictions pursuant to Rule 144(k) as determined
by
counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent (the “Effectiveness
Period”).
The
Company shall promptly notify the Stockholder Representative Committee via
facsimile or e-mail of the effectiveness of the Registration Statement on
the
same Trading Day that the Company confirms effectiveness with the SEC.
3.
Registration
Procedures.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Not
less
than five Trading Days prior to the filing of the Registration Statement and
the
Prospectus or any amendment or supplement thereto, the Company shall furnish
to
the Stockholder Representative Committee copies of all such documents proposed
to be filed (other than those incorporated, or deemed to be incorporated,
therein by reference), which documents will be subject to the review of the
Stockholder Representative Committee. The Company shall not file the
Registration Statement or the Prospectus or any amendments or supplements
thereto to which the Stockholder Representative Committee shall reasonably
object in good faith, provided that, the Company is notified of such objection
in writing no later than five Trading Days after the Stockholder Representative
Committee has been so furnished copies of such documents. Each Holder shall
furnish to the Company a completed and signed questionnaire in the form attached
hereto as Annex B (a “Selling
Shareholder Questionnaire”)
not
later than the third Trading Day prior to the Filing Date.
(b) (i)
Prepare and file with the SEC such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus as may be necessary
to keep the Registration Statement continuously effective as to the Registrable
Securities during the Effectiveness Period; (ii) cause the Prospectus to be
amended or supplemented by any required Prospectus supplement (subject to the
terms of this Agreement) and, as so supplemented or amended, to be filed
pursuant to Rule 424; (iii) respond as promptly as reasonably possible to any
comments received from the SEC with respect to the Registration Statement or
the
Prospectus or any amendment thereto and, as promptly as reasonably possible,
provide the Stockholder Representative Committee true and complete copies of
all
correspondence from and to the SEC relating to the Registration Statement or
the
Prospectus; and (iv) comply, in all material respects, with the provisions
of
the Securities Act and the Exchange Act with respect to the disposition of
Registrable Securities covered by the Registration Statement during the
applicable period in accordance (subject to the terms of this Agreement) with
the intended methods of disposition by the Holders set forth in the Registration
Statement.
(c) Notify
the Stockholder Representative Committee (which notice shall be accompanied,
pursuant to clauses (ii) through (iv) hereof, by an instruction to suspend
the
use of the Prospectus until the requisite changes have been made and copies
of
which notice shall be delivered by the Stockholder Representative Committee
forthwith to each of the Holders) as promptly as reasonably possible (and,
in
the case of (i)(A) below, not less than five Trading Days prior to the filing)
and, if requested by the Stockholder Representative Committee, confirm such
notice in writing no later than one Trading Day following the day (i)(A) when
the Prospectus or any Prospectus supplement or post-effective amendment to
a
Registration Statement is proposed to be filed; (B) when the SEC notifies the
Company whether there will be a “review” of the Registration Statement and
whenever the SEC comments in writing on the Registration Statement (the Company
shall provide true and complete copies thereof and all written responses thereto
to the Stockholder Representative Committee); and (C) with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to the Registration
Statement or the Prospectus or for additional information; (iii) of the issuance
by the SEC or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement covering any
or
all of the Registrable Securities or the initiation of any Proceedings for
that
purpose; and (iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of any
of
the Registrable Securities for sale in any jurisdiction, or the initiation
or
threatening of any Proceeding for such purpose; provided that any and all of
such information shall be kept confidential by the Stockholder Representative
Committee and each Holder until such information otherwise becomes public,
unless disclosure by a Holder is required by law.
(d) Use
commercially reasonable efforts to avoid the issuance of, or, if issued, obtain,
as soon as practicable, the withdrawal of, (i) any order suspending the
effectiveness of the Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction.
(e) Furnish
to the Stockholder Representative Committee, without charge, at least three
conformed copies of the Registration Statement and each amendment thereto,
if
any, including financial statements and schedules, all documents incorporated,
or deemed to be incorporated, therein by reference and all exhibits (including
those previously furnished or incorporated by reference), promptly after the
filing of such documents with the SEC.
(f) Promptly
deliver to the Stockholder Representative Committee, without charge, as many
copies of the Prospectus and any amendment or supplement thereto as the
Stockholder Representative Committee may reasonably request in writing in
connection with resales by Holders of Registrable Securities. Subject to the
terms of this Agreement, the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the Holders in
connection with the offering and sale of Registrable Securities covered by
the
Prospectus and any amendment or supplement thereto, except after the giving
of
any notice pursuant to Section 3(c).
(g) Prior
to
any resale of Registrable Securities by a Holder, use commercially reasonable
efforts to register or qualify, or cooperate with such selling Holder in
connection with the registration or qualification (or exemption from the
registration or qualification) of, such Registrable Securities for their resale
by the Holder under the state securities or so-called Blue Sky laws of such
jurisdictions within the United States as such Holder reasonably requests in
writing, to keep each registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all other acts
or
things reasonably necessary to enable the disposition in such jurisdictions
of
the Registrable Securities covered by the Registration Statement; provided,
that
the Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, subject the Company to any
material tax in any such jurisdiction where it is not then so subject or file
a
general consent to service of process in any such jurisdiction.
(h) Cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee
pursuant to the Registration Statement, which certificates shall be free of
all
restrictive legends, to the extent permitted by the Merger Agreement and
applicable Law, and to enable such Registrable Securities to be in such
denominations and registered in such names as the Holders may reasonably
request.
(i) Upon
the
occurrence of any event contemplated by this Section 3, as promptly as
reasonably practicable under the circumstances, taking into account the
Company’s good faith assessment of any adverse consequences to the Company
(including, without limitation, its business, financial condition, prospects
or
otherwise) and its stockholders of the premature disclosure of such event,
prepare a supplement or amendment, including a post-effective amendment, to
the
Registration Statement or a supplement to the Prospectus or any document
incorporated, or deemed to be incorporated, therein by reference, and file
any
other required document so that, as thereafter delivered, neither the
Registration Statement nor the Prospectus will 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. If
the
Company notifies the Stockholder Representative Committee in accordance with
clauses (ii) through (iv) of Section 3(c) above to cause the suspension of
the
use of the Prospectus until the requisite changes to the Prospectus have been
made, then the Stockholder Representative Committee shall use best efforts
to
cause the Holders to suspend use of the Prospectus. The Company will use
commercially reasonable efforts to ensure that the use of the Prospectus may
be
resumed as promptly as practicable. The Company shall be entitled to exercise
its right under this Section 3(i) to suspend the availability of the
Registration Statement and the Prospectus for a period not to exceed 90 calendar
days (which need not be consecutive days) in any twelve-month period.
2
(j) Comply
with all applicable rules and regulations of the SEC.
(k) The
Company may require each Holder to furnish to the Company a certified statement
as to the number of shares of Parent Common Stock beneficially owned by such
Holder, the name of the Person that has voting and dispositive control over
such
shares and, if required by the SEC, such other information as the SEC may
request.
4.
Registration
Expenses.
All
fees and expenses incident to the performance of, or compliance with, this
Agreement by the Company shall be borne by the Company, whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The
fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
NASDAQ Global Market System and (B) in compliance with applicable state
securities or so-called Blue Sky laws reasonably agreed to by the Company in
writing (including, without limitation, fees and disbursements of counsel to
the
Company in connection with so-called Blue Sky qualifications or exemptions
of
the Registrable Securities under the laws of such jurisdictions as requested
by
the Stockholder Representative Committee on behalf of any of the Holders),
(ii)
expenses of printing stock certificates representing Registrable Securities,
(iii) messenger, telephone, photocopying and delivery expenses, (iv) fees and
disbursements of counsel to the Company, (v) Securities Act liability insurance,
if the Company desires such insurance and (vi) fees and expenses of all other
Persons retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement. In addition, the Company shall
be
responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit and
the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. In no event, shall
the Company be responsible for any broker or similar commissions or, except
to
the extent provided for in the Merger Agreement, any legal fees or other costs
of the Holders individually.
5.
Indemnification
(a) Indemnification
by the Company.
Notwithstanding any termination of this Agreement, the Company shall indemnify
and hold harmless the Stockholder Representative Committee and each of the
Holders and, as applicable, the officers, directors, agents, brokers (including
brokers who offer and sell Registrable Securities as principal as a result
of a
pledge or any failure to perform under a margin call of Parent Common Stock),
investment advisors and employees of each of them, to the fullest extent
permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses (collectively, “Losses”)
incurred, arising out of or relating to any untrue, or allegedly untrue,
statement of a material fact contained in the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or arising out of or
relating to any omission or alleged omission of a material fact required to
be
stated therein or necessary to make the statements therein (in the case of
the
Prospectus or any amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading, except to the extent, but only
to
the extent, that (i) such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein or to the extent that such information relates
to such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, the Prospectus or in any
amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an occurrence
of an event of the type specified in Section 3(c)(ii)-(iv), the use by such
Holder of an outdated or defective Prospectus after the Company has given notice
to the Stockholder Representative Committee pursuant to Section 3(c) and prior
to the receipt by such Holder of the Advice (contemplated in Section 6(d)).
Subject to the applicable disclosure rules, the Company shall notify the
Stockholder Representative Committee promptly of the institution, threat or
assertion of any Proceeding arising from or in connection with the transactions
contemplated by this Agreement of which the Company is aware.
(b) Indemnification
by Holders.
Each of
the Holders shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses incurred, arising out of or relating to (i) such
Holder’s failure to comply with the prospectus delivery requirements of the
Securities Act or (ii) any untrue or alleged untrue statement of a material
fact
contained in the Registration Statement or the Prospectus or in any amendment
or
supplement thereto or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading (A) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company specifically for inclusion
in
the Registration Statement or the Prospectus or (B) to the extent that (1)
such
untrue statements or omissions are based upon information regarding such Holder
furnished in writing by such Holder to the Company specifically for inclusion
in
the Registration Statement or the Prospectus or (2) in the case of an occurrence
of an event of the type specified in Section 3(c)(ii)-(iv), the use by such
Holder of an outdated or defective Prospectus after the Company has given notice
to the Stockholder Representative Committee pursuant to Section 3(c) and prior
to the receipt by such Holder of the Advice (contemplated in Section 6(c)).
In
no event, shall the liability of any Holder hereunder be greater in amount
than
the greater of (i) such Holder’s portion of the Closing Payment Amount and
(ii) the dollar amount of the proceeds received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with such defense; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except and only to the
extent that such failure shall have prejudiced the Indemnifying
Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless: (i)
the Indemnifying Party has agreed in writing to pay such fees and expenses;
(ii)
the Indemnifying Party shall have failed to assume the defense of such
Proceeding; or (iii) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall reasonably believe, based on the advice
of counsel, that a material conflict of interest is likely to exist if the
same
counsel were to represent such Indemnified Party and the Indemnifying Party
(in
which case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the defense
thereof and the reasonable fees and expenses of one separate counsel
representing all of the Indemnified Parties (chosen by the Stockholder
Representative Committee if any of the Indemnified Parties is a Holder),
including such Indemnified Party, shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement of any
such Proceeding effected without its written consent, which consent shall not
be
unreasonably withheld or delayed. No Indemnifying Party shall effect, without
the prior written consent of the Indemnified Party, any settlement of any
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from
all
liability for or with respect to claims that are the subject matter of such
Proceeding.
Subject
to the terms of this Agreement, all reasonable external legal counsel fees
and
expenses of the Indemnified Party shall be paid to the Indemnified Party, as
incurred, within 20 Trading Days of written notice thereof (including copies
of
all applicable invoices) to the Indemnifying Party; provided, that the
Indemnified Party shall promptly reimburse the Indemnifying Party for that
portion of such fees and expenses applicable to such actions for which such
Indemnified Party is not entitled to indemnification hereunder, determined
based
upon the relative faults of the parties.
(d) Contribution.
If the
indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses,
then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue, or allegedly
untrue, statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied
by,
such Indemnifying Party or Indemnified Party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section 5 was available to such party
in
accordance with its terms.
3
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the greater of (i)
such
Holder’s portion of the Closing Payment Amount and (ii) the amount by which the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of an untrue, or allegedly
untrue, statement or omission or alleged omission, except in the case of fraud
by such Holder, in which case, such limit to the required contribution shall
not
apply.
The
indemnity and contribution agreements contained in this Section 5(d) are in
addition to any liability that any Indemnifying Party may owe to any Indemnified
Party.
6.
Miscellaneous
(a) Remedies.
In the
event of a breach by the Company or by a Holder of any of its respective
obligations under this Agreement, the non-breaching party, in addition to being
entitled to exercise all rights granted by law and under this Agreement,
including recovery of damages, will be entitled to specific performance of
its
rights under this Agreement. Each of the Company and the Holders agrees that
monetary damages would not provide adequate compensation for any losses incurred
by reason of a breach by it of any of the provisions of this Agreement and
hereby further agrees that, in the event of any action for specific performance
in respect of such breach, it shall waive the defense that a remedy at law
would
be adequate.
(b) Compliance.
Each of
the Holders covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to the Registration
Statement.
(c) Discontinued
Disposition.
The
Stockholder Representative Committee, on behalf of each of the Holders,
acknowledges and agrees that each of the Holders is deemed to agree, by its
acquisition of Registrable Securities, that, upon receipt of a notice from
the
Stockholder Representative Committee or the Company of the occurrence of any
event of the kind described in Section 3(c)(ii)-(iv), such Holder will forthwith
discontinue disposition of its Registrable Securities under the Registration
Statement until such Holder’s receipt of the copies of the amended Registration
Statement and/or Prospectus supplement, as applicable, or until such Holder
is
advised in writing (the “Advice”)
by the
Company that the use of the Registration Statement and the Prospectus may be
resumed and, in either case, has received copies of any additional or
supplemental filings that are incorporated, or deemed to be incorporated,
therein by reference. The Company will use commercially reasonable efforts
to
ensure that the use of the Prospectus may be resumed as promptly as
practicable.
(d) Piggy-Back
Registrations.
If, at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the SEC a registration statement relating
to
an offering for its own account or the account of others, under the Securities
Act, of any of its equity securities, other than on Form S-4 or Form S-8 (each
as promulgated under the Securities Act) or their then-equivalent forms relating
to equity securities to be issued solely in connection with any acquisition
of
any entity or business or equity securities issuable in connection with the
Company’s stock option plan or other employee benefit plans, then the Company
shall send to each Holder a written notice of such determination, and, if within
fifteen days after the date of such notice, any such Holder shall so request
in
writing, the Company shall include in such registration statement all or any
part of the Registrable Securities held by such Holder and that it requests
to
be registered; provided,
however,
that
the Company shall not be required to register any Registrable Securities
pursuant to this Section 6(d) that are eligible for resale pursuant to Rule
144(k) or that are the subject of a then effective registration
statement.
(e) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and by at least two members of the Stockholder
Representative Committee. 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 an single Holder and that does not directly or
indirectly affect the rights of any other Holder may be given by the
first-mentioned Holder; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(f) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered in accordance with the requirements of
the
Merger Agreement.
(g) Successors
and Assigns.
This
Agreement shall inure to the benefit of, and be binding upon, the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of the Stockholder Representative Committee. None
of
the Holders may assign its respective rights hereunder without the prior written
consent of the Company.
(h) No
Inconsistent Agreements.
Neither
the Company nor any of its subsidiaries has entered, as of the date hereof,
nor
shall the Company or any of its subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Holders in this Agreement
or that otherwise conflicts with the provisions hereof.
(i) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which, when
so
executed, shall be deemed to be an original and all of which, taken together,
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission or e-mail, such signature shall create
a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
(j) Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware applicable to contracts executed in and to be performed
in
that state.
(k) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and, in no way, shall be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same,
or substantially the same, result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
(m) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(n) Number
and Gender.
In this
Agreement, words importing the singular include the plural and vice versa.
Words
importing the masculine gender include the feminine and neuter
genders.
4
(o) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each of the Holders hereunder are several and not joint with
the
obligations of any other Holder, and no Holder shall be responsible in any
way
for the performance of the obligations of any other Holder. Nothing contained
herein or in any other agreement or document delivered at any closing, and
no
action taken by any Holder pursuant hereto or thereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint venture or
any
other kind of entity or create a presumption that the Holders are in any way
acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Subject to the rights and powers of the
Stockholder Representative Committee, each Holder shall be entitled to protect
and enforce its rights, including, without limitation, the rights arising out
of
this Agreement, and it shall not be necessary for any other Holder to be joined
as an additional party in any proceeding for such purpose.
********************
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
5
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
|
|
By: /s/ Xxxxx Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
|
|
STOCKHOLDER REPRESENTATIVE COMMITTEE
|
|
/s/Xxxx X. Xxxxx
__________________________________________
Xxxx X. Xxxxx
/s/Xxxx Xxxxxxxx
__________________________________________
Xxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxx
__________________________________________
Xxxxx X. Xxxxx
|
6
Annex
A
Plan
of Distribution
The
Selling Stockholders (collectively, the “Selling
Stockholders”
and,
individually, a “Selling
Stockholder”)
of the
shares of the common stock (“Common
Stock”)
of
OccuLogix, Inc. (the “Company”),
a
Delaware corporation, and their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their shares of Common Stock on
the
NASDAQ Global Market System or any other U.S. stock exchange, market or trading
facility on which the Common Stock is traded or in private transactions. These
sales may be at fixed or negotiated prices. A Selling Stockholder may use any
one or more of the following methods when selling shares of the Common
Stock:
| · |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| · |
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| · |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| · |
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| · |
privately
negotiated transactions;
|
| · |
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a part;
|
| · |
agreement
with broker-dealers pursuant to which they agree to sell a specified
number of such shares at a stipulated price per
share;
|
| · |
a
combination of any such methods of
sale;
|
| · |
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
and
|
| · |
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities
Act”),
if
available, rather than under this Prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, but,
except as set forth in a supplement to this Prospectus, in the case of an agency
transaction, not in excess of a customary brokerage commission in compliance
with NASDR Rule 2440; and in the case of a principal transaction a markup or
markdown, in compliance with NASDR IM-2440.
In
connection with the sale of shares of the Common Stock or interests therein,
the
Selling Stockholders may enter into hedging transactions with broker-dealers
or
other financial institutions which, in turn, may engage in short sales of the
Common Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the Common Stock short and deliver these
securities to close out their short positions or loan or pledge the Common
Stock
to broker-dealers that, in turn, may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares of the Common Stock offered by this Prospectus,
which shares such broker-dealer or other financial institution may resell
pursuant to this Prospectus (as supplemented or amended to reflect such
transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling shares of the Common Stock may be deemed to be “underwriters” within the
meaning of the Securities Act in connection with such sales. In such event,
any
commissions received by such broker-dealers or agents and any profit on the
resale of such shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling Stockholder
has
informed the Company that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to distribute the Common
Stock. In no event, shall any broker-dealer receive fees, commissions and
markups which, in the aggregate, would exceed eight percent (8%).
The
Company is required to pay certain fees and expenses incurred incident to the
registration of the shares of the Common Stock. The Company has agreed to
indemnify the Selling Stockholders against certain losses, claims, damages
and
liabilities, including liabilities under the Securities Act.
Because
the Selling Stockholders may be deemed to be “underwriters” within the meaning
of the Securities Act, they will be subject to the prospectus delivery
requirements of the Securities Act. In addition, any securities covered by
this
Prospectus which qualify for sale pursuant to Rule 144 under the Securities
Act
may be sold under Rule 144 rather than under this Prospectus. Each Selling
Stockholder has advised the Company that such Selling Stockholder has not
entered into any written or oral agreements, understandings or arrangements
with
any underwriter or broker-dealer regarding the sale of the shares of the Common
Stock. There is no underwriter or coordinating broker acting in connection
with
the proposed sale of such shares by the Selling Stockholders.
The
Company has agreed to keep this Prospectus effective until the earlier of (i)
the date on which the shares may be sold by the Selling Stockholders without
registration and without regard to any volume limitations by reason of Rule
144(k) under the Securities Act or any other rule of similar effect and (ii)
all
of the shares of the Common Stock have been sold pursuant to this Prospectus
or
Rule 144 under the Securities Act or any other rule of similar effect. The
shares of the Common Stock will be sold only through registered or licensed
brokers or dealers, if required under applicable state securities laws. In
addition, in certain states, such shares may not be sold unless they have been
registered or qualified for sale in the applicable state or an exemption from
the registration or qualification requirement is available and is complied
with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934,
as
amended (the “Exchange
Act”),
any
person engaged in the distribution of the shares of the Common Stock may not
simultaneously engage in market making activities with respect to the Common
Stock for the applicable restricted period, as defined in Regulation M, prior
to
the commencement of the distribution. In addition, the Selling Stockholders
will
be subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing
of
purchases and sales of shares of the Common Stock by the Selling Stockholders
or
any other person. The Company will make copies of this Prospectus available
to
the Selling Stockholders and has informed them of the need to deliver a copy
of
this Prospectus to each purchaser at or prior to the time of the
sale.
7
Annex
B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of shares of common stock, par value $.001 per
share (the “Common
Stock”),
of
OccuLogix, Inc. (the “Company”),
a
Delaware corporation, (the “Registrable
Securities”)
understands that the Company has filed, or intends to file, with the Securities
and Exchange Commission (the “Commission”)
a
registration statement on Form S-3 (the “Registration
Statement”)
for
the registration and sale under Rule 415 of the Securities Act of 1933, as
amended (the “Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement, dated as of August 31,
2006
(the “Registration
Rights Agreement”)
(which
Registration Rights Agreement and attachments thereto are attached to this
Selling Securityholder Notice and Questionnaire), among the Company and Xxxx
X.
Xxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxxx, acting, in each case, in his capacity
as a member of the Stockholder Representative Committee (as defined in the
Agreement and Plan of Merger, dated as of August 1, 2006, by and among the
Company, OccuLogix Mergeco, Inc., Solx, Inc. and Xxxx X. Xxxxx, Xxxx Xxxxxxxx
and Xxxxx X. Xxxxx, acting in each case, in his capacity as a member of the
Stockholder Representative Committee referred to therein, as amended). A copy
of
the Registration Rights Agreement is available from the Company upon request
at
its offices located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxx, X0X 0X0, Xxxxxx. All capitalized terms used and not otherwise defined
herein have the respective meanings given to them in the Registration Rights
Agreement.
Certain
legal consequences arise from being named a selling securityholder in the
Registration Statement and the related Prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and the
Prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling
Securityholder”)
of
Registrable Securities hereby elects to include the Registrable Securities,
owned by it and listed below in Item 3 (unless otherwise specified under such
Item 3), in the Registration Statement.
8
The
undersigned Selling Securityholder hereby provides the following information
to
the Company and represents and warrants that such information is
accurate:
QUESTIONNAIRE
1. Name.
|
(a)
|
Full
legal name of Selling
Securityholder
|
|
(b)
|
Full
legal name of registered holder (if not the same as (a) above) in
whose
name Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
legal name of natural control person (which means a natural person
who
directly or indirectly, alone or with others, has power to vote or
dispose
of the securities covered by the
questionnaire):
|
2.
Address for Notices to Selling Securityholder:
|
Telephone:
|
|
Fax:
|
|
Contact
Person:
|
3.
Beneficial Ownership of Registrable Securities:
|
(a)
|
Type
and amount of Registrable Securities beneficially
owned:
|
9
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes o No
o
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
o
No
o
5.
Beneficial Ownership of Other Securities of the Company:
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company, other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and amount of other securities of the Company beneficially owned
by the
Selling Securityholder:
|
6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the Prospectus and any amendments
or supplements thereto. The undersigned understands that such information will
be relied upon by the Company in connection with the preparation or amendment
of
the Registration Statement and the Prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Dated:
________________________
Beneficial
Owner: __________________________
(please
print legibly)
By:_____________________________________
Name:
Title:
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT COURIER, TO:
Torys
LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000-0000
X.X.X.
Fax:
(000) 000-0000
Attention:
Xxxxxx X. Xxxx, Esq.
10
