EXHIBIT 10.60
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of this
12th day of March, 2001 by and between LASERSIGHT INCORPORATED, a Delaware
corporation (the "Company"), and XXXXXX HEALTHCARE FINANCE, INC., a Delaware
corporation, and its affiliates and assigns (collectively, "HHCF"). This
Agreement is made in connection with the issuance by the Company of a warrant to
HHCF (the "Warrant"), pursuant to which HHCF may purchase and the Company may
hereafter issue up to 243,750 shares (the "Warrant Shares") of its common stock
from time to time upon the exercise of the Warrant. The Company hereby confirms
that the rights granted under this Agreement constitute a material inducement to
HHCF to accept the Warrant in connection with the transactions under which
Warrant is being issued.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. In addition to those terms defined elsewhere in
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this Agreement, the following terms shall have the following meanings
wherever used in this Agreement:
"Blackout Event" means a determination by the Board of
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Directors made in good faith, after consulting with outside securities counsel,
that the registration of Registrable Securities under the Securities Act or the
continuation of the disposition of Registrable Securities pursuant to an
effective Registration Statement at such time (a) would have a material adverse
effect upon a proposed material sale of all (or substantially all) of the assets
of the Company or a material merger, reorganization, recapitalization or similar
current transaction materially affecting the capital structure or equity
ownership of the Company, or (b) would require the Company to make a public
disclosure of information not otherwise required to be disclosed by the Company,
which disclosure would have a material adverse effect on the Company.
"Blackout Period" See Section 4(a).
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"Board of Directors" means the Board of Directors of the
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Company.
"Costs and Expenses" means all of the costs and expenses
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relating to any Registration Statement, including but not limited to
registration, filing and qualification fees, blue sky expenses, costs of listing
any shares on any exchange or automated quotation system, printing expenses,
fees and disbursements of counsel to the Company, and accounting fees; provided,
however, that underwriting discounts and commissions attributable solely to the
securities registered for the benefit of the Holders, fees and disbursements of
counsel to the Holders, and all other expenses attributable solely to the
Holders shall be borne by them.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
"Form X-0," "Xxxx X-0," "Form S-4" and "Form S-8" mean such
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respective forms under the Securities Act as in effect on the date of this
Agreement or any successor registration forms subsequently adopted by the
Securities and Exchange Commission (the "SEC") or any successor regulatory
authority.
"Holdback Period" See Section 7.
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"Holder" or "Holders" means any person or persons owning or
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having the right to acquire Registrable Securities.
"Registrable Securities" means the Warrant Shares and any
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common stock issued (or issuable upon the conversion or exercise of any warrant,
right or other security issued or granted as a dividend or distribution of any
Warrant Shares) as a dividend or other distribution with respect to, or in
exchange for or in replacement of any Warrant Shares.
"Registration" means any registration of Registrable
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Securities pursuant to a registration statement filed by the Company with the
SEC in respect of any class of Registrable Securities, other than a registration
statement in respect of employee stock options or other employee benefit plans
or in respect of any merger, consolidation, acquisition or like combination,
whether on Form S-1, Form X-0, Xxxx X-0, Form S-8 or any equivalent form of
registration then in effect.
"Registration Notice" See Section 3(a).
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"Registration Period" See Section 2(b).
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"Registration Statement" means any registration statement
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filed or to be filed by the Company in respect of any Registration.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor statute from time to time.
"Shelf Registration Statement" See Section 2(a).
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2. Demand Registration.
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(a) The Company shall: (i) prepare and, no more than 75 days
after the date of this Agreement, file with the SEC a Registration Statement in
respect of all the Registrable Securities on an appropriate form for a secondary
offering to be made on a continuous basis by the Company pursuant to Rule 415
promulgated under the Securities Act (the "Shelf Registration Statement"); and
(ii) subject to Section 4 hereof, use its best efforts to cause the Shelf
Registration Statement to become effective as soon as practicable after such
filing.
In addition to the Registrable Securities, the Company may include in the Shelf
Registration Statement shares of Common Stock held by any holder of equity
securities of the Company or any securities convertible into or exercisable or
exchangeable for such equity securities, which holder is entitled by written
agreement with the Company to have some or all of such securities included in
the Shelf Registration Statement.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective at all times until such date as is
the earlier of: (i) the date on which all of the Registrable Securities have
been sold, (ii) the date on which all of the Registrable Securities may be
immediately sold to the public without registration conditions or limitations
whatsoever (including limitations or restrictions related to affiliates),
whether pursuant to Rule 144 promulgated under the Securities Act or otherwise,
and (iii) subject to this Section 2 and Section 4, the date which is three years
after the date hereof. (The period of time commencing on the date the Shelf
Registration Statement is declared effective and, subject to this Section 2 and
Section 4, ending on the earliest of the foregoing dates is referred to as the
"Registration Period."). The Registration Period shall be extended by duration
of (i) any Blackout Period, and (ii) any Holdback Period.
(c) Each Holder shall notify the Company at least five
business days prior to any sale of Registrable Securities by such Holder
pursuant to the Shelf Registration Statement. During such five-day period, the
Company shall have the right to notify Holder that the Holder may not sell
Registrable Securities pursuant to the Shelf Registration Statement due to
either a Blackout Period or Holdback Period then being in effect or then being
invoked. Upon such notice being provided, Holder shall not sell any Registrable
Securities pursuant to the Shelf Registration Statement until the earlier of (i)
90 days from the date that the Blackout Period or Holdback Period commenced and
(ii) the date the Company has notified Holder that the Blackout Period or
Holdback Period, as applicable, is no longer in effect.
(d) Subject to Sections 3, 4 and 5 hereof, the Company shall
promptly supplement or amend the Shelf Registration Statement if required by the
Securities Act to keep such Registration Statement effective during the
Registration Period.
(e) Each Holder shall notify the Company promptly, but in any
event within five business days, after the date on which all Registrable
Securities owned by such Holder have been sold by such Holder so that the
Company may comply with its obligation to terminate the Shelf Registration
Statement in accordance with Item 512 of Regulation S-K.
3. Piggyback Registration.
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(a) Subject to the provisions of this Agreement, if the
Company shall at any time after the date of this Agreement propose a
Registration, then the Company shall give to each Holder written notice (the
"Registration Notice") of such proposed Registration not less than thirty (30)
days prior to the initial filing of a Registration Statement relating to such
proposed Registration, and shall, subject to the limitations provided in Section
5, include in such Registration Statement all or a portion of the Registrable
Securities owned by each Holder, as and to the extent that such Holder may
request the same to be so included by means of written notice given to the
Company within fifteen (15) days after the Company's giving of the Registration
Notice.
(b) Each Holder shall be permitted to withdraw all or any part
of its Registrable Securities from a Registration Statement by written notice to
the Company given at any time prior to the effective date of the Registration
Statement.
(c) Subject to the terms of Section 4 and Section 5(d), the
Company will use all commercially reasonable efforts to effect any Registration
under this Section 3 as soon as practicable after giving the Registration
Notice, and to cause such Registration Statement to become effective.
4. Blackout and Holdback Events.
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(a) During any period of up to ninety (90) days' duration
following the occurrence of a Blackout Event (a "Blackout Period"), the Company
shall not be required to file, or cause to be declared effective, under the
Securities Act any Registration Statement hereunder and, if applicable, the
Holders will discontinue the offer and sale of Registrable Securities pursuant
to any effective Registration Statement.
(b) The aggregate number of days during which one or more
Blackout Periods are in effect shall not exceed 90 days during any 12-month
period.
(c) The Company shall promptly notify the Holders in writing
of any decision not to file a Registration Statement or not to cause a
Registration Statement to be declared effective or to discontinue sales of
Registrable Securities pursuant to this Section 4, which notice shall set forth
the reason for such decision (but not disclosing any nonpublic material
information) and shall include an undertaking by the Company promptly to notify
the Holders as soon as sales may resume.
5. Terms and Conditions of the Company's Obligations.
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Notwithstanding anything to the contrary contained in this Agreement, the
Company's obligation to include the Registrable Securities in any Registration
Statement pursuant to Sections 2 and 3 shall be subject, at the option of the
Company, to the following further conditions:
(a) The Registrable Securities proposed to be included in such
Registration Statement may not, at the time of the Registration Notice, be
distributable in open market transactions without any volume limitations
pursuant to any applicable exemption from the registration requirements of the
Securities Act, including Rule 144 promulgated thereunder (or any successor
thereto);
(b) If an underwriter is used in connection with a
Registration, the distribution for the account of the Holder shall be
underwritten by the same underwriters (if any) who are underwriting the
distribution of the securities for the account of the Company and/or any other
persons whose securities are covered by such Registration Statement, and the
Holder shall enter into an agreement with such underwriters containing customary
indemnification and other provisions;
(c) If the underwriting agreement entered into with the
aforesaid underwriter contains or requires restrictions upon the sale of
securities of the Company by any of the Company, its officers, directors or
other principal stockholders, other than the securities that are to be included
in the proposed distribution, then such restrictions shall likewise be binding
upon the Holder, and if requested by the Company the Holder shall enter into a
written agreement to that effect;
(d) If at any time after giving the Registration Notice, and
prior to the effective date of the Registration Statement filed in connection
with such Registration Notice, the Company shall determine for any reason not to
proceed with the subject Registration, the Company may, at its election, give
written notice of such determination to the Holder and, thereupon, shall be
relieved of its obligation to register any of the Holder's Registrable
Securities in connection with such Registration, provided, however, that the
Company may not delay a Demand Registration made pursuant to Section 2 of this
Agreement in accordance with this Registration except for a Blackout Period or a
Holdback Period.
(e) If, in connection with an underwritten public offering
pursuant to a Registration Statement, the managing underwriter(s) thereof shall
advise the Company in writing that the inclusion of all of the Registrable
Securities and other securities of the Company to be included in such
Registration would interfere with the successful marketing of (including
pricing) of all of the Company's securities requested to be so included (but
which shall not refer to any securities held by or to be newly issued by the
Company), then the Company will promptly furnish each such Holder of Registrable
Securities with a copy of such written statement and may require, by written
notice to each such Holder accompanying such written statement, that all or a
specified portion of such Holder's Registrable Securities be excluded from such
distribution (in case of an exclusion of only a portion of such Registrable
Securities, such portion to be allocated among the Holders of Registrable
Securities in proportion to the respective number of shares of Registrable
Securities so requested to be registered pursuant to such Registration Statement
by all such Holders); and
(f) The Company shall not be obligated to effect any
registration of Registrable Securities incidental to the registration of any of
its securities in connection with mergers, acquisitions, exchange offers,
dividend reinvestment plans or stock option or other employee benefit plans or
incidental to the registration of any non-equity securities convertible into
equity securities whether such registration is effected on Form X-0, Xxxx X-0,
Form X-0, Xxxx X-0, or other permitted form.
6. Registration Procedures. In the case of each Registration
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effected by the Company in which Registrable Securities are to be registered
for resale for the account of any Holder, the Company will use its best efforts
to:
(a) furnish to counsel selected by each Holder copies of all
Registration Statements or prospectuses or any amendments or supplements thereto
proposed to be filed with the SEC, which documents will be subject to review by
such counsel before filing solely with regard to any information contained
therein which pertains to the subject Holder;
(b) prepare and file with the SEC 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
the period required by this Agreement and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during such period;
(c) furnish to each subject Holder such number of copies of
such Registration Statement, each amendment and supplement thereto, the
prospectus included in such Registration Statement (including each preliminary
prospectus) and such other documents as the Holder may reasonably require in
order to facilitate the disposition of the Registrable Securities owned by and
registered on behalf of such Holder;
(d) register or qualify such Registrable Securities under such
other securities or blue sky laws of such states as the underwriter reasonably
requires and do any and all other acts and things which may be reasonably
necessary or advisable to enable each subject Holder to consummate the
disposition of the Registrable Securities in such jurisdictions (provided that
the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction, or (iii)
consent to general service of process in any such jurisdiction);
(e) notify each subject Holder, at any time when a prospectus
relating to a Registration Statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in a Registration Statement contains an untrue statement of
a material fact or omits to state any fact necessary to make the statements
therein not materially misleading, and promptly prepare and file a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchaser(s) of Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not materially misleading; and
(f) cause all subject Registrable Securities to be listed for
trading on each securities exchange or automated quotation system on which
similar securities issued by the Company as those which are the subject of such
Registration Statement are then listed.
7. Lock-up Agreements. If reasonably requested by the Company and
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the managing underwriter, the parties hereto agree to enter into lock-up
agreements pursuant to which they will not, for a period of up to 90 days
following the effective date of a Registration Statement ("Holdback Period") for
the public offering of the Company's securities (so long as Registrable
Securities are entitled to be included in such public offering), as requested by
the managing
underwriter of such offering, offer, sell or otherwise dispose of the
Registrable Securities (except for Registrable Securities sold pursuant to such
Registration Statement) without the prior consent of the Company and the
managing underwriter; provided, however, that a condition to any such obligation
is that the Company's executive officers and directors enter into lock-up
agreements for the same period and on the same terms.
8. Costs and Expenses. The Company shall bear any and all of the
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Costs and Expenses of Registration under Sections 2 and 3 of this Agreement;
provided, however, that each Holder shall pay, pro rata based upon the number of
its Registrable Securities included therein, the underwriters' discounts,
commissions and compensation attributable solely to the inclusion of such
Registrable Securities in the public offering.
9. Indemnification by the Company.
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(a) The Company will indemnify each Holder from and against
any claim, loss, cost, charge or liability of any kind, including amounts paid
in settlement and reasonable attorneys' fees, which may be incurred by such
Holder as a result of any breach of any representation or warranty or covenant
of the Company contained in this Agreement or in any certificate delivered on
the closing date of the public offering by the Company, with such
indemnification to be made within thirty (30) days of receipt of written request
therefor.
(b) The Company shall indemnify and hold harmless each Holder,
any underwriter (as defined in the Securities Act) for any Holder, each officer
and director of a Holder, legal counsel and accountants for a Holder, and each
person, if any, who controls a Holder or such underwriter within the meaning of
the Securities Act, against any losses, expenses, claims, damages or
liabilities, joint or several, to which such Holder or any such underwriter,
officer, director or controlling person becomes subject, under the Securities
Act or any rule or regulation thereunder or otherwise, insofar as such losses,
expenses, claims, damages or liabilities (or actions in respect thereof) (i) are
caused by any untrue statement or alleged untrue statement of any material fact
contained in any preliminary prospectus (if used prior to the effective date of
the Registration Statement), or contained, on the effective date thereof, in any
Registration Statement of which Warrant Shares were the subject, the prospectus
contained therein, any amendment or supplement thereto, or any other document
related to such Registration Statement, (ii) 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
(iii) arise out of any violation by the Company of the Securities Act or any
rule or regulation thereunder applicable to the Company and relating to actions
or omissions otherwise required of the Company in connection with such
registration. The Company shall reimburse each Holder and any such underwriter,
officer, director or controlling person for any legal or other expenses
reasonably incurred by such Holder, or any such officer, director, underwriter
or controlling person in connection with investigating, defending or settling
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable to any such persons in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information furnished to
the Company in writing by such person expressly for inclusion in any of the
foregoing documents. This indemnity shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company.
10. Indemnification by the Holders. Each Holder participating in
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the Registration shall indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed a Registration Statement, legal
counsel and accountants for the Company, each person (if any) who controls the
Company within the meaning of the Securities Act and any underwriter (as defined
in the Securities Act) for the Company, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, controlling
person or underwriter may become subject under the Securities Act or any rule or
regulation thereunder or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) are caused solely by any untrue
statement or alleged untrue statement of any material fact contained in any
preliminary prospectus (if used prior to the effective date of the Registration
Statement), or contained, on the effective date thereof, in any Registration
Statement of which such Holder's Warrant Shares were the subject, the prospectus
contained therein, any amendment or supplement thereto, or any other document
related to such Registration Statement, or (ii) arise out of or are based solely
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in the case of each of (i) and (ii) to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
to the Company by such Holder expressly for inclusion in any of the foregoing
documents. This indemnity shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the subject Holder.
11. Additional Provisions Regarding Indemnification.
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(a) Each Holder and each other person indemnified pursuant to
Section 9 above shall, in the event that it receives notice of the commencement
of any action against it which is based upon an alleged act or omission which,
if proven, would result in the Company's having to indemnify it pursuant to
Section 8 above, promptly notify the Company, in writing, of the commencement of
such action and permit the Company, if the Company so notifies such Holder
within thirty (30) days after receipt by the Company of notice of the
commencement of the action, to participate in and to assume the defense of such
action with counsel reasonably satisfactory to such Holder at the Company's
expense; provided, however, that such Holder or other indemnified person shall
be entitled to retain its own counsel at its own expense. The omission to notify
the Company promptly of the commencement of any such action shall not relieve
the Company of any liability to indemnify such Holder or such other indemnified
person, as the case may be, under Section 9 above, except to the extent that the
Company shall suffer any loss by reason of such failure to give notice, and
shall not relieve the Company of any other liabilities which it may have under
this or any other agreement.
(b) The Company and each other person indemnified pursuant to
Section 10 above shall, in the event that it receives notice of the commencement
of any action against it which is based upon an alleged act or omission which,
if proven, would result in any Holder having to indemnify it pursuant to Section
10 above, promptly notify such Holder, in writing, of the commencement of such
action and permit such Holder, if such Holder so notifies the Company within
thirty (30) days after receipt by such Holder of notice of the commencement of
the action, to participate in and to assume the defense of such action with
counsel reasonably satisfactory to the Company; provided, however, that the
Company or other indemnified person shall be entitled to retain its own counsel
at the Company's expense. The omission to notify any Holder promptly of the
commencement of any such action shall not relieve such Holder of liability to
indemnify the Company or such other indemnified person, as the case may be,
under Section 10 above, except to the extent that the subject Holder shall
suffer any loss by reason of such failure to give notice, and shall not relieve
such Holder of any other liabilities which it may have under this or any other
agreement.
(c) No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. Each indemnified party shall furnish such information regarding
itself or the claim in question as an indemnifying party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
(d) (i) If a court of competent jurisdiction determines that
the foregoing indemnity provided under Sections 9 and 10 above is unavailable,
or is insufficient to hold harmless an indemnified party, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of such losses, claims, damages, liabilities or expenses (A) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, or
(B) if the allocation provided by clause (A) above is not permitted by
applicable law, or provides a lesser sum to the indemnified party than the
amount hereinafter calculated, in such proportion as is appropriate to reflect
not only the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other, but also the relative fault of the
indemnifying party and the indemnified party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not also guilty of fraudulent
misrepresentation.
(ii) In the event that the indemnifying party
and the indemnified party are unable to mutually agree on the relative benefits
to and/or the relative faults of such persons and the amounts of appropriate
contribution, such dispute shall be resolved by final, binding and enforceable
arbitration before the American Arbitration Association in Washington, D.C. in
accordance with its rules.
12. Rule 144. With the view of making available to a Holder the
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benefits of Rule 144 promulgated under the Securities Act and any other rule
that may at any time permit a Holder to sell securities of the Company without
Registration, the Company agrees to:
(a) Use its best efforts to make and keep public
information available, as those terms are understood and defined in Rule
144;
(b) Use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the
Securities Act and Exchange Act; and
(c) So long as any Holder owns any Registrable Shares, to
furnish to such Holder upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 and of the Securities Act
and the Exchange Act, a copy of its most recent annual or quarterly report, and
such other information as a Holder may reasonably request in order to permit
such Holder to take advantage of Rule 144.
13. Notices. All notices, requests, demands and other
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communications required or permitted under this Agreement shall be in writing
and shall be given in the manner provided in the Warrant.
14. Waiver and Amendment. No waiver, amendment or modification of
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this Agreement or of any provision of this Agreement shall be valid unless
evidenced by a writing duly executed by the Company and Holders of a majority of
the Warrant Shares then issued and held and/or issuable upon future exercise of
the Warrants. No waiver of any default hereunder shall be deemed a waiver of any
other, prior or subsequent default hereunder.
15. Governing Law. This Agreement shall be governed, construed
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and controlled by and under the substantive laws of the State of Maryland
without regard to principles of conflicts of laws.
16. Assignees. This Agreement is solely for the benefit of the
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Company, HHCF, the Holders, and any person(s) acquiringWarrant Shares from a
Holder thereof by will or by the laws of descent and distribution. No other
transferees of Warrant Shares shall be entitled to derive any benefit herefrom.
17. Captions. The captions and Section headings used in this
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Agreement are for convenience only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions of this Agreement.
18. Entire Agreement. This Agreement constitutes the sole and
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entire agreement and understanding between the parties hereto as to the
subject matter of this Agreement, and supersedes all prior discussions,
agreements and understandings of every kind and nature between them as to such
subject matter.
IN WITNESS WHEREOF, the Company and HHCF have executed this Agreement
as of the date first written above.
LASERSIGHT INCORPORATED,
a Delaware corporation
By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title Secretary
XXXXXX HEALTHCARE FINANCE, INC.,
a Delaware corporation
By: /s/Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
