EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
April 20, 2007, is by and between SURGILIGHT, INC., a Florida corporation
(the "Corporation"), and GEM SurgiLight Investors, LLC, a New York limited
liability company (the "Investor").
WHEREAS, the Corporation has agreed, on the terms and subject to the
conditions set forth in the Series B Convertible Preferred Stock Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), to issue
and sell to the Investor shares of Series B Convertible Preferred Stock
convertible into shares of the Common Stock (the "Preferred Stock").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Purchase Agreement.
WHEREAS, in order to induce the Investor to enter into the Purchase
Agreement, the Company has agreed to provide certain registration rights
under the Securities Act of 1933, as amended, and under applicable state
securities laws.
In consideration of the Investor entering into the Purchase Agreement,
and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
SECTION 1
DEFINITIONS
As used in this Agreement the following terms shall have the following
meanings:
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means, the common stock, $.0001 par value per share, of
the Corporation.
"Exchange Act" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect
from time to time.
"Investor" means Gem SurgiLight Investors, LLC and each additional
person who shall execute a counterpart signature page hereto, and
includes any successor to, or assignee or transferee of, any such
person who or which agrees in writing to be treated as an Investor
hereunder and to be bound by the terms and comply with all applicable
provisions hereof.
"Other Shares" means at any time those shares of Common Stock which
do not constitute Primary Shares or Registrable Shares.
"Primary Shares" means at any time the authorized but unissued shares
of Common Stock held by the Corporation in its treasury.
"Registrable Shares" means shares of Common Stock issuable upon
conversion of the Preferred Stock. As to any particular Registrable
Shares, once issued, such Registrable Shares shall cease to be Registrable
Shares when (i) they have been registered under the Securities Act, the
registration statement in connection therewith has been declared effective
and they have been disposed of pursuant to such effective registration
statement, (ii) they are eligible to be sold or distributed pursuant to
Rule 144 within any consecutive three month period (including, without
limitation, Rule 144(k)) without volume limitations, or (iii) they shall
have ceased to be outstanding.
"Registration Date" means the date upon which the registration statement
pursuant to which the Corporation shall have initially registered shares
of Common Stock under the Securities Act for sale to the public shall have
been declared effective.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto (such as Rule
144A).
"Securities Act" means the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
SECTION 2
REQUIRED REGISTRATION
On any date after three (3) months following the Registration
Date, if holders representing not less than 50% of the Registrable Shares
then outstanding shall in writing state that such holders desire to sell
Registrable Shares in the public securities markets and request the
Corporation to effect the registration under the Securities Act of
Registrable Shares, the Corporation shall promptly use its best efforts
to effect the registration under the Securities Act of the Registrable
Shares which the Corporation has been so requested to register; provided,
however, that the Corporation shall not be obligated to effect any
registration under the Securities Act except in accordance with the
following provisions:
(a) the Corporation shall not be obligated to use its best efforts to
file and cause to become effective (i) more than one registration statement
initiated pursuant to this Section 2 in any six-month period, (ii) more than
two registration statements initiated pursuant to this Section 2 on Form S-1
promulgated under the Securities Act or any successor from thereto, (iii) any
registration on Form S-3 (or any comparable or successor form) until the
Corporation has qualified for use thereof, at which time there shall be no
limit on the number of registrations on Form S-3 that the holder may request
or (iv) any registration statements during any period in which any other
registration statement (other than on Form S-4 or Form S-8 promulgated under
the Securities Act or any successor forms thereto) pursuant to which Primary
Shares are to be or were sold has been filed and not withdrawn or has been
declared effective within the 90 days.
(b) the Corporation may delay the filing or effectiveness of any
registration statement for a period of up to 90 days after the date of a
request for registration pursuant to this Section 2 if at the time of such
request (i) the Corporation is engaged, or has fixed plans to engage within
90 days of the time of such request, in a firm commitment underwritten
public offering of Primary Shares in which the holders of Registrable Shares
may include Registrable Shares pursuant to Section 3 or (ii) the Corporation
reasonably determines that such registration and offering would interfere
with any material transaction involving the Corporation, as approved by the
Board of Directors, provided, however, that the Corporation may only delay
the filing or effectiveness of a registration statement pursuant to this
Section 2(b) for a total of 120 days after the date of a request for
registration pursuant to this Section 2.
(c) with respect to any registration pursuant to this Section 2, the
Corporation shall give notice of such registration to the holders of all
Other Shares which are entitled to registration rights and the Corporation
may include in such registration any Primary Shares or Other Shares;
provided, however, that if the managing underwriter advises the Corporation
that the inclusion of all Registrable Shares, Primary Shares and/or Other
Shares proposed to be included in such registration would interfere with the
successful marketing (including pricing) of the Registrable Shares proposed
to be included in such registration, then the number of Registrable Shares,
Primary Shares and/or Other Shares proposed to be included in such
registration shall be included in the following order:
(i) first, the Registrable Shares requested to be included in such
registration (or, if necessary, such Registrable Shares pro rata among the
holders thereof based upon the number of Registrable Shares requested to
be registered by each such holder);
(ii) second, the Primary Shares; and
(iii) third, the Other Shares which are entitled to registration
rights.
(d) At any time before the registration statement covering Registrable
Shares become effective, the holders of a majority of such shares may
request the Corporation to withdraw or not to file the registration
statement. In that event, if such request of withdrawal shall not have
been caused by, or made in response to, the material adverse effect of
an event on the business, properties, conditions, financial or otherwise,
or operations of the Corporation, the holders shall have used their demand
registration right under this Section 2 and the Corporation shall no longer
be obligated to register Registrable Shares pursuant to the exercise of such
registration right pursuant to this Section 2 unless the remaining holders
shall pay to the Corporation the expenses incurred by the Corporation
through the date of such request.
SECTION 3
PIGGYBACK REGISTRATION
If the Corporation at any time proposes for any reason to register Primary
Shares or Other Shares under the Securities Act (other than on Form S-4 or
Form S-8 promulgated under the Securities Act or any successor forms
thereto), it shall give written notice to the Investor of its intention to
register such Primary Shares or Other Shares at least thirty (30) days
before the initial filing of such registration statement and, upon the
written request, delivered to the Corporation within twenty (20) days
after delivery of any such notice by the Corporation, of the Investor
to include in such registration Registrable Shares (which request shall
specify the number of Registrable Shares proposed to be included in such
registration and shall state that the Investors desires to sell such
Registrable Shares in the public securities markets), the Corporation
shall use its best efforts to cause all such Registrable Shares to be
included in such registration on the same terms and conditions as the
securities otherwise being sold in such registration; provided, however,
that if the managing underwriter advises the Corporation that the inclusion
of all Registrable Shares requested to be included in such registration
would interfere with the successful marketing (including pricing) of the
Primary Shares or Other Shares proposed to be registered by the Corporation,
then the number of Primary Shares, Registrable Shares and Other Shares
proposed to be included in such registration shall be included in the
following order:
(a) if the Corporation proposes to register Primary Shares, or Primary
Shares and Other Shares:
(i) First, the Primary Shares; and
(ii) Second, the Registrable Shares and Other Shares requested to
be included in such registration (or, if necessary, such Registrable
Shares and Other Shares pro rata among the holders thereof based upon the
number of shares of Registrable Shares and Other Shares requested to be
registered by each such holder); or
(b) if the Corporation proposes to register Other Shares pursuant to a
request for registration by the holders of such Other Shares (other than
pursuant to Section 3 hereof):
(i) First, the Other Shares held by the parties demanding such
registration; and
(ii) Second, the Registrable Shares and Other Shares (other than
shares registered pursuant to Section 3(b)(1) hereof) requested to be
registered by the holders hereof (or, if necessary, pro rata among the
holders thereof based on the number of Registrable Shares and Other Shares
requested to be registered by such holders).
SECTION 4
PREPARATION AND FILING
If and whenever the Corporation is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the registration
of any Registrable Shares, the Corporation shall as expeditiously as
practicable:
(a) use its best efforts to cause a registration statement that registers
such Registrable Shares to become and remain effective for a period of 90 days
or until all of such Registrable Shares have been disposed of (if earlier);
(b) furnish, at least ten (10) business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating
thereto or any amendments or supplements relating to such a registration
statement or prospectus, to one counsel selected by the Investors (the
"Investor's Counsel"), copies of all such documents proposed to be filed
and permit Investor's Counsel to review the registration statement, the
prospectus and any amendments or supplements thereto(it being understood
that such ten-business-day period need not apply to successive drafts of
the same document proposed to be filed so long as such successive drafts
are supplied to the Investor's Counsel in advance of the proposed filing
and within a reasonable period of time following the receipt
of any comments by the staff of the Commission by he Corporation);
(c) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for at least a
period of 90 days or until all of such Registrable Shares have been disposed of
(if earlier) and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of such Registrable Shares;
(d) notify in writing the Investor's Counsel promptly (i) of the receipt
by the Corporation of any notification with respect to any comments by the
Commission with respect to such registration statement or prospectus or any
amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) of the receipt by the Corporation of any notification with
respect to the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or prospectus or any amendment
or supplement thereto or the initiation or threatening of any proceeding for
that purpose and (iii) of the receipt by the Corporation of any notification
with respect to the suspension of the qualification of such Registrable
Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as the
Investors reasonably request and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Investors to consummate the
disposition in such jurisdictions of the Registrable Shares owned by the
Investors; provided, however, that the Corporation will not be required to
qualify generally to do business, subject itself to general taxation or consent
to general service of process in any jurisdiction where it would not otherwise
be required to do so but for this paragraph (e) or to provide any material
undertaking or make any changes in its By-laws or Certificate of Incorporation
which the Board of Directors determines to be contrary to the best interests of
the Corporation or to modify any of its contractual relationships then existing;
(f) furnish to the Investor holding such Registrable Shares such number of
copies of a summary prospectus, if any, or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Investors may reasonably request in order
to facilitate the public sale or other disposition of such Registrable Shares;
(g) in the event of an underwritten public offering of the Registrable
Shares, enter into (together with all holders proposing to distribute
Registrable Securities through such underwriting) and perform its obligations
under an underwriting agreement, in usual and customary form reasonably
acceptable to the Corporation, with the managing underwriter of such offering;
(h) without limiting subsection (e) above, use its best efforts to cause
such Registrable Shares to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Corporation to enable the Investors holding
such Registrable Shares to consummate the disposition of such Registrable
Shares;
(i) notify the Investor holding such Registrable Shares on a timely
basis at any time when a prospectus relating to such Registrable Shares
is required to be delivered under the Securities Act within the appropriate
period mentioned in subparagraph (a) of this Section 4, of the happening
of any event as a result of which 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 the Investor,
prepare and furnish to such Investor a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the offerees of such shares, 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;
(j) subject to the execution of confidentiality agreements in form and
substance satisfactory to the Corporation, make available upon reasonable
notice and during normal business hours, for inspection by the Investor
holding such Registrable Shares, any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by the Investor or underwriter
(collectively, the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Corporation
(collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Corporation's officers, directors and employees to supply all information
(together with the Records, the "Information") reasonably requested by any
such Inspector in connection with such registration statement. Any of the
Information which the Corporation determines in good faith to be confidential
and of which determination the Inspector is so notified, shall not be
disclosed by the Inspectors unless (i) the disclosure of such Information is
necessary to avoid or correct a misstatement or an omission in the
registration statement, (ii) the release of such Information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction
or (iii) such Information has been made generally available to the public;
the Investor agrees that it will, upon learning that disclosure of such
information is sought in a court of competent jurisdiction, give notice to
the Corporation and allow the Corporation, at the Corporation's expense, to
undertake appropriate action to prevent disclosure of the Information
deemed confidential;
(k) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters addressed to the Corporation and
any selling Stockholders in customary form and at customary times and
covering matters of the type customarily covered by cold comfort benefits;
(l) use all commercially reasonable efforts to prevent the issuance of
any stop order or other order suspending the effectiveness of the
registration statement and, if such an order is issued, to obtain the
withdrawal thereof at the earliest possible time and to notify the Investor
of the issuance of such order and the resolution thereof;
(m) furnish to the Investor, on the date that the registration
statement becomes effective, a letter, dated such date, of outside counsel
representing the Corporation (and reasonably acceptable to the Investor)
addressed to the Investor, confirming such effectiveness and, to the
knowledge of such counsel, the absence of any stop order;
(n) provide a transfer agent and registrar (which may be the same
entity and which may be the Corporation) for such Registrable Shares;
(o) issue to any underwriter to which the Investor holding such
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(p) list such Registrable Shares on any national securities exchange
on which any shares of the Common Stock are listed or, if the Common Stock
is not listed on a national securities exchange, use its best efforts to
qualify such Registrable Shares for inclusion on the automated quotation
system of the National Association of Securities Dealers, Inc. (the "NASD"),
or such other national securities exchange as the holders of a majority
of such Registrable Shares shall reasonably request;
(q) hold in confidence and not make any disclosure of information
concerning the Investor provided to the Corporation if at the time such
information is provided the Corporation is notified of the confidential
nature of such information unless (i) disclosure of such information is
necessary to comply with federal or state securities laws, (ii) the
disclosure of such information is necessary to avoid or correct a
misstatement or omission in any registration statement that includes
the Investor's Registrable Shares, (iii) the release of such information
is ordered pursuant to a subpoena or other order from a court or
governmental body of competent jurisdiction, (iv) such information has
been made generally available to the public other than by disclosure
in violation of this or any other agreement, or (v) the Investor consents
to the form and content of any such disclosure. The Corporation shall,
upon learning that disclosure of any information concerning the Investor
is sought in or by a court or governmental body of competent jurisdiction
or through other means, give prompt notice to the Investor prior to making
such disclosure, and cooperate with the Investor in taking appropriate
action to prevent disclosure of, or to obtain a protective order for, such
information;
(r) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission and make available to its security
holders, as soon as reasonably practicable, earnings statements (which
need not be audited) covering a period of twelve (12) months beginning
within three months after the effective date of the registration
statement, which earnings statements shall satisfy the provisions of
Section 11 (a) of the Securities Act; and
(s) subject to all the other provisions of this Agreement, use its
best efforts to take all other steps accessory to effect the
registration of such Registrable Shares contemplated hereby.
Each holder of the Registrable Shares, upon receipt of any notice
from the Corporation of any event of the kind described in Section 5(i)
hereof, shall forthwith discontinue disposition of the Registrable
Shares pursuant to the registration statement covering such Registrable
Shares until such holders' receipt of the copies of the supplemented or
amended prospectus contemplated by Section 5(i) hereof, and, if so
directed by the Corporation, such holder shall deliver to the Corporation
All copies, other than permanent file copies then in such holder's
possession, of the prospectus covering such Registrable Shares at
the time of receipt of such notice.
SECTION 5
EXPENSES
All expenses (other than underwriting discounts and commissions
relating to the Registrable Shares, as provided in the last sentence of
this Section 5) incurred by the Corporation in complying with Section 4,
including, without limitation, all registration and filing fees (including
all expenses incident to filing with the NASD), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Corporation's counsel and accountants, and reasonable fees
and expenses of the Investors' Counsel, shall be paid by the Corporation;
provided, however, that all underwriting discounts and selling commissions
applicable to the Registrable Shares and Other Shares shall be borne by
the holders selling such Registrable Shares and Other Shares, in proportion
to the number of Registrable Shares and Other Shares sold by each
such holder.
SECTION 6
INDEMNIFICATION
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Corporation shall
indemnify and hold harmless the holders of Registrable Shares, each
underwriter, broker or any other person acting on behalf of the holders of
Registrable Shares and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act against any
losses, claims, damages or liabilities, joint or several (or actions
in respect thereof), to which any of the foregoing persons may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or allegedly untrue
statement of a material fact contained in the registration statement under
which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement thereto
or any document incident to registration or qualification of any Registrable
Shares, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading or, with respect to any
prospectus, necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or any violation
by the Corporation of the Securities Act or state securities or blue sky
laws applicable to the Corporation and relating to action or inaction
required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws; and shall
reimburse the holders of Registrable Shares, such underwriter, such broker
or such other person acting on behalf of the holders of Registrable Shares
and each such controlling person for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Corporation shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action (including any legal or
other expenses incurred) arises out of or is based upon an untrue statement
or allegedly untrue statement or omission or alleged omission made in said
registration statement, preliminary prospectus, final prospectus, amendment
supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon and in conformity with written information
furnished to the Corporation through an instrument duly executed by the
holders of Registrable Shares or their counsel or underwriter specifically
for use in the preparation thereof; provided further, however, that the
foregoing indemnity agreement is subject to the condition that, insofar as
it relates to any untrue statement, omission or alleged omission made in any
preliminary prospectus but eliminated or remedied in the final prospectus
(filed pursuant to Rule 424 of the Securities Act), such indemnity agreement
shall not inure to the benefit of the Investor, any underwriter, broker or
other person acting on behalf of holders of the Restricted Shares from whom
the person asserting any loss, claim, damage, liability or expense purchased
the Restricted Shares which are the subject thereof, if a copy of such
final prospectus had been made available to such person and such Investor,
underwriter, broker or other person acting on behalf of holders of the
Registrable Shares and such final prospectus was not delivered to such person
with or prior to the written confirmation of the sale of such Registrable
Shares to such person.
(b) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each holder of Registrable
Shares shall severally and not jointly indemnify and hold harmless (in
the same manner and to the same extent as set forth in the preceding
paragraph of this Section 6) the Corporation, each director of the
Corporation, each officer of the Corporation who shall sign such
registration statement, each underwriter, broker or other person acting on
behalf of the holders of Registrable Shares and each person who controls
any of the foregoing persons within the meaning of the Securities Act
with respect to any statement or omission from such registration
statement, any preliminary prospectus or final prospectus contained therein
or otherwise filed with the Commission, any amendment or supplement thereto
or any document incident to registration or qualification of any Registrable
Shares, if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Corporation or such
underwriter specifically for use in connection with the preparation of
such registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document; provided, however, that the maximum
amount of liability in respect of such indemnification shall be limited,
in the case of each Seller of Registrable Shares, to an amount equal to
the net proceeds actually received by such Seller from the sale of
Registrable Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in the
preceding paragraphs of this Section 6, such indemnified party will,
if a claim in respect thereof is made against an indemnifying party,
give written notice to the latter of the commencement of such action.
The failure of any indemnified party to notify an indemnifying party
of any such action shall not (unless such failure shall have a material
adverse effect on the indemnifying party) relieve the indemnified
party on account of this Section 6. In case any such action is
brought against an indemnified party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection
with the defense thereof; provided, however, that if any indemnified
party shall have reasonably concluded that there may be one or more
legal or equitable defenses available to such indemnified party which
are additional to or conflict with those available to the indemnifying
party, or that such claim or litigation involves or could have an effect
upon matters beyond the scope of the indemnity agreement provided in
this Section 6, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party
(but shall have the right to participate therein with counsel of its
choice) and such indemnifying party shall reimburse such indemnified
party and any person controlling such indemnified party for that portion
of the fees and expenses of any counsel retained by the indemnified
party which is reasonably related to the matters covered by the
indemnity agreement provided in this Section 6. If the indemnifying
party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more
than one counsel with respect to such claim.
(d) If the indemnification provided for in this Section 6
is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage, liability
or action referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amounts paid or payable by such indemnified party as a result of such
loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party
on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of
the indemnified party 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 party or by the
indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The parties agree that it would not be just and equitable
if contribution pursuant hereto were determined by pro rata allocation
or by any other method or allocation which does not take account of the
equitable considerations referred to herein. No person guilty of
fraudulent misrepresentation shall be entitled to contribution from
any person.
SECTION 7
EXCHANGE ACT COMPLIANCE
From the Registration Date or such earlier date as a
registration statement filed by the Corporation pursuant to the Exchange
Act relating to any class of the Corporation's securities shall have
become effective, the Corporation shall comply with all of the reporting
requirements of the Exchange Act applicable to it (whether or not it shall
be required to do so, but specifically excluding Section 14 of the Exchange
Act if not then applicable to the Corporation) and shall comply with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Common Stock.
The Corporation shall cooperate with the Investor in supplying such
information as may be necessary for the Investor to complete and file any
information reporting forms presently or hereafter required by the Commission
as a condition to the availability of Rule 144.
SECTION 8
NO CONFLICT OF RIGHTS
The Corporation shall not, after the date hereof, grant any
registration rights which conflict with or impair the registration rights
ranted hereby. In the event the Corporation grants to any person any
registration rights that are superior in scope or substance to the
registration rights granted to the holders of the Registrable Shares,
such superior rights shall be simultaneously granted to such holders.
SECTION 9
TERMINATION
This Agreement shall terminate and be of no further force or
effect when there shall no longer be any Registrable Shares outstanding;
provided that Sections 5 and 6 shall survive any termination of this
Agreement.
SECTION 10
SUCCESSORS AND ASSIGNS
This Agreement shall bind and inure to the benefit of the
Corporation and the Investor and, subject to Section 11, the respective
successors and assigns of the Corporation and the Investor.
SECTION 11
ASSIGNMENT
The Investor may assign its rights hereunder to any purchaser
or transferee of Registrable Shares; provided, however, that such
purchaser or transferee shall, as a condition to the effectiveness of
such assignment, be required to execute a counterpart to this Agreement
agreeing to be treated as an Investor whereupon such purchaser or
transferee shall have the benefits of, and shall be subject to the
restrictions contained in, this Agreement as if such purchaser or
transferee was originally included in the definition of an Investor
herein and had originally been a party hereto
SECTION 12
ENTIRE AGREEMENT
This Agreement and the other writings referred to herein or
therein or delivered pursuant hereto or thereto, contain the entire
agreement between the Investor and the Corporation with respect to the
subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
SECTION 13
NOTICES
All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained
in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or
certified mail return receipt requested, postage prepaid, addressed
to such party at the address set forth below or such other address
as may hereafter be designated in writing by such party to the other
parties:
If sent to the Investor, notices shall be sent to the following
address:
GEM SurgiLight Investors, LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX `0011
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
XxXxxxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
If sent to the Corporation, notice shall be sent to the
following address:
SurgiLight, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Fax: 000-000-0000
With a copy to: X. Xxxxxxx Xxxxxxx, Esq.
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
All such notices, requests, consents and other communications
shall be deemed to have been delivered (a) in the case of personal
delivery or delivery by telecopy, on the date of such delivery, (b)
in the case of dispatch by nationally-recognized overnight courier,
on the next business day following such dispatch and (c) in the case
of mailing, on the third business day after the posting thereof.
SECTION 14
MODIFICATIONS; AMENDMENTS; WAIVERS
The terms and provisions of this Agreement may not be modified
or amended, nor may any provision be waived, except pursuant to a writing
signed by the Corporation and the holders of at least a majority of the
Registrable Shares then outstanding. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon the Investor,
each holder and the Corporation. The failure of any party to exercise
any right or remedy under this Agreement or otherwise, or the delay by
any party in exercising such right or remedy, shall not operate as a
waiver thereof.
SECTION 15
COUNTERPARTS
This Agreement may be executed in any number of counterparts,
and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 16
HEADINGS
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be
a part of this Agreement.
SECTION 17
GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and
to be performed wholly therein.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first set forth above.
SURGILIGHT, INC.
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: President
GEM SURGLIGHT INVESTORS LLC
by GEM SURGILIGHT MANAGEMENT, LLC, its
MANAGING MEMBER
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Member
