EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of June 5,
1998, by and among LaserSight Incorporated, a Delaware corporation (the
"Company"), with headquarters located at 00000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, and TLC The Laser Center Inc., an Ontario corporation,
with headquarters located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxx, Xxxxxx L4W 442 ("Purchaser"), with regard to the following:
RECITALS
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A. In connection with the Securities Purchase Agreement dated of even
date herewith by and among the Company and Purchaser (the "Securities Purchase
Agreement"), the Company has agreed, upon the terms and subject to the
conditions contained therein, to issue and sell to Purchaser 2,000,000 shares of
the Series C Convertible Preferred Stock of the Company (the "Preferred Stock")
that is convertible into shares (the "Conversion Shares") of the Company's
common stock, par value $.001 per share (the "Common Stock") pursuant to the
terms and subject to the limitations and conditions set forth in the Certificate
of Designation, Preferences and Rights of the Series C Convertible Preferred
Stock (the "Certificate of Designation").
B. To induce Purchaser to execute and deliver the Securities Purchase
Agreement, the Company has agreed to provide to the Holders certain rights to a
registration by the Company under the Securities Act of 1933 and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws.
AGREEMENTS
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In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Purchaser agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
specified:
Advice: See Section 4 hereof.
Agreement: See the introductory paragraphs hereto.
Blackout Event means a determination by the Board made in good faith,
after consulting with outside securities counsel, that the registration of
Registrable Securities under the Securities Act or the continuation of the
disposition of Registrable Securities pursuant to an effective Registration
Statement at such time (i) would have a material adverse effect upon a proposed
material sale of all (or substantially all) of the assets of the Company or a
material merger, reorganization, recapitalization or similar current transaction
materially affecting the capital structure or equity ownership of the Company,
or (ii) would require the Company to make a public disclosure of information,
which disclosure would have a material adverse effect on the Company.
Blackout Period: See Section 3(a) hereof.
Board: The Board of Directors of the Company.
Certificate of Designation: See the introductory paragraphs hereof.
Claim: See Section 6(a) hereof.
Common Stock: See the introductory paragraphs hereto.
Company: See the introductory paragraphs hereto.
Conversion Shares: See the introductory paragraphs hereto.
Exchange Act: The Securities Exchange Act of 1934 and the rules and
regulations of the SEC promulgated thereunder.
Form S-3: Form S-3 of the SEC under the Securities Act or any successor
form.
Holdback Period: See Section 3(b) hereof.
Holder: Any registered holder of a Registrable Security or Registrable
Securities.
Indemnified Person: See Section 6(c) hereof.
Indemnifying Person: See Section 6(c) hereof.
Losses: See Section 6(a) hereof.
NASD: See Section 4(j) hereof.
Other Holders: See Section 2.2(a) hereof.
Other Shares: See Section 2.2(a) hereof.
Other Investors: Any holder of equity securities of the Company or any
securities convertible into or exercisable or exchangeable for such equity
securities, which holder is entitled by written agreement with the Company to
have some or all of such securities included in a Registration Statement.
Participant: See Section 6(a) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, trust, unincorporated association, business association, firm
or other legal entity.
Piggy-Back Registration Statement: See Section 2.2(a) hereof.
Preferred Stock: See the introductory paragraphs hereto.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchaser: See the introductory paragraphs hereto.
Registrable Securities means any of the Conversion Shares and any other
securities issued or issuable with respect to any Preferred Stock or Conversion
Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities held by
a Holder, such securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to the offering of such securities by the
Holder thereof shall have been declared effective under the Securities Act and
such securities shall have been disposed of by such Holder pursuant to such
Registration Statement, (ii) such securities may at the time of determination be
sold to the public pursuant to Rule 144 without any restriction on the amount of
securities which may be sold by such Holder without the lapse of any further
time or the satisfaction of any condition, or (iii) such securities shall have
been otherwise transferred by such Holder and new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent, and subsequent disposition of
such securities shall not require registration or qualification under the
Securities Act or any similar state law.
Registration Expenses: See Section 5(b) hereof.
Registration Period: See Section 2.1(b) hereof.
Registration Statement: Any registration statement of the Company filed
with the SEC under the Securities Act, including the Prospectus, all amendments
and supplements to such registration statement, post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Requested Shares: See Section 2.2(a) hereof.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC providing for public offers and sales of securities made in
compliance therewith resulting in offers and sales by subsequent holders that
are not affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities Act.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission or any successor federal
agency charged with the enforcement of the federal securities laws.
Securities Act: See the introductory paragraphs hereto.
Securities Purchase Agreement: See the introductory paragraphs hereto.
Shelf Registration Statement: See Section 2.1(a) hereof.
Subsidiary: Any corporation of which the Company owns securities
representing a majority of the outstanding voting power or any partnership of
which the Company (or a Subsidiary) holds a majority of the general partner
interest.
Underwritten Offering: A public offering of Common Stock, or other
securities convertible into, or exercisable or exchangeable for, Common Stock
that is underwritten on a firm commitment basis; provided that such offering
shall be exclusively for the account of any one or more of the Company or
Purchaser (or any of Purchaser's assignees).
2. REGISTRATION RIGHTS
2.1 Shelf Registration.
(A) The Company shall:
(i) prepare and, on or prior to 45 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 (the "Shelf Registration Statement"); and
(ii) subject to Section 3 hereof, use its reasonable 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 Other Investors.
(B) The Company shall use its reasonable 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,
whether pursuant to Rule 144 or otherwise, and (iii) the date which is the two
year anniversary of the date hereof. (The period of time commencing on the date
the Shelf Registration Statement is declared effective and ending on the
earliest of the foregoing dates shall be referred to as the "Registration
Period")). Subject to Section 3 hereof, the Company shall use its reasonable
best efforts to amend and supplement the Prospectus contained in the Shelf
Registration Statement in order to permit such Prospectus to be lawfully
delivered until the end of the Registration Period.
(C) In connection with the Shelf Registration Statement, the Company
shall:
(I) mail to each Holder a copy of the Prospectus forming part
of the Shelf Registration Statement;
(II) otherwise comply in all material respects with all
applicable federal securities laws, rules and regulations.
(D) 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 has 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 agrees not to sell any Registrable Securities pursuant to the
Shelf Registration Statement until the Company has notified Holder that the
Blackout Period or Holdback Period, as applicable, is no longer in effect.
(E) Subject to Section 3 hereof, the Company shall promptly supplement
and amend the Shelf Registration Statement if required by the Securities Act, or
if reasonably requested by the Holders of a majority of the Registrable
Securities then transferrable pursuant to such Shelf Registration Statement.
(F) Each Holder agrees to notify the Company promptly, but in any event
within three 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.
2.2 Piggy-Back Registration Rights.
(a) If during the Registration Period the Company proposes or is
required to file with the SEC a registration statement (the "Piggy-Back
Registration Statement") under the Securities Act in connection with an
Underwritten Offering of Common Stock (other than a registration statement that
does not permit the inclusion therein of the Registrable Securities), the
Company will each such time give prompt written notice of its intention to do so
to each Holder. Upon the written request of any Holder given within 10 days
after the delivery or mailing of such notice from the Company, the Company will
use commercially reasonable efforts to include in such Piggy-Back Registration
Statement that number of the Conversion Shares specified by Holder in such
written request (subject to the limitations set forth in this Section 2.2(a) and
in Section 2.2(b) below) (the "Requested Shares") so as to permit the public
sale of such Requested Shares, provided that if the managing underwriter or
underwriters advise the Company that marketing factors require a limit on the
number of shares to be underwritten, the Company may (subject to the limitations
set forth below) exclude all Requested Shares from, or limit the number of
Requested Shares to be included in, the Piggy-Back Registration Statement and
underwriting. In such event, the Company shall so advise each requesting Holder,
and the number of Requested Shares and other shares ("Other Shares") requested
to be included in such Piggy-Back Registration Statement and underwriting by
other persons or entities that are then stockholders of the Company ("Other
Holders"), after providing for all shares that the Company proposes to offer and
sell for its own account, shall be allocated among the Requesting Holders and
Other Holders pro rata on the basis of (i) the number of Requested Shares then
held by the requesting Holders and (ii) the aggregate number of Other Shares
then held by Other Holders.
(b) The right of any Holder to registration shall be conditioned upon
(i) such Holder's execution of the underwriting agreement agreed to among the
Company and the managing underwriters selected by the Company for such
underwritten offering, (ii) such Holder's completion and execution of all
customary questionnaires and other documents which must be executed in
connection with such underwriting agreement, and (iii) such Holder supplying the
Company and the underwriter such additional information as may be necessary to
register such Holder's Registrable Securities.
3. BLACKOUT AND HOLDBACK EVENTS
(a) During any period of up to 90 days' duration following the
occurrence of a Blackout Event (a "Blackout Period"), the Company shall not be
required to file, or cause to be declared effective, under the Securities Act
any Registration Statement hereunder, or, if applicable, the Holders will
discontinue the offer and sale of Registrable Securities pursuant to the Shelf
Registration Statement or a Piggy-back Registration Statement.
(b) The Holders shall not, if requested by the managing underwriter or
underwriters of an Underwritten Offering, effect any public or private sale of
any Common Stock, including a sale pursuant to Rule 144, during the period
("Holdback Period") beginning 14 days prior to, and ending 90 days after, the
effective date of the registration statement relating to such Underwritten
Offering.
(c) The aggregate number of days during which one or more Blackout
Periods or Holdback Periods are in effect shall not exceed 180 days during the
Registration Period, provided that the aggregate number of days during which one
or more Blackout Periods or Holdback Periods are in effect shall not exceed 90
days in any 12 month period during the Registration Period.
(d) 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 3, which notice shall set forth the reason
for such decision (but not disclosing any nonpublic material information) and
shall include an undertaking by the Company promptly to notify the Holders as
soon as sales may resume.
4. REGISTRATION PROCEDURES
In connection with the filing of the Shelf Registration Statement or a
Piggy-Back Registration Statement by the Company, the Company shall effect such
registrations to permit the sale of the Registrable Securities covered thereby
in accordance with the intended method or methods of disposition thereof, and in
connection with such Registration Statement the Company shall:
(a) A reasonable time before the filing of the Shelf Registration
Statement, Piggy-Back Registration Statement or any Prospectus or any amendments
or supplements thereto, the Company shall afford to Purchaser an opportunity to
review the Shelf Registration Statement, Piggy-Back Registration Statement or
any Prospectus or any amendments or supplements thereto.
(b) Notify the selling Holders of Registrable Securities promptly (but
in any event within five business days), and confirm such notice in writing: (I)
when a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act, and (ii)
of the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose.
(c) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest practicable
time.
(d) Furnish to each selling Holder of Registrable Securities at the
sole expense of the Company one conformed copy of the Shelf Registration
Statement or Piggy-Back Registration Statement, as applicable, and each
post-effective amendment thereto and, if requested, all documents incorporated
or deemed to be incorporated therein by reference and all exhibits.
(e) Deliver to each selling Holder of Registrable Securities at the
sole expense of the Company as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 4, the
Company consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto.
(f) Prior to any public offering of Registrable Securities, to use its
reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Securities in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any selling Holder reasonably
requests; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that the Company shall not be required to (A) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 4(f), (B) subject itself to general taxation in any such jurisdiction,
(C) file a general consent to service of process in any such jurisdiction, (D)
provide any undertakings that cause the Company material expense or burden, or
(E) make any change in its charter or by-laws, which in each case the Board
determines to be contrary to the best interests of the Company and its
stockholders.
(g) Cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form in compliance with any applicable
rules of a stock exchange on which the Common Stock is then listed; and enable
such Registrable Securities to be in such denominations and registered in such
names as Holders may reasonably request.
(h) Upon the occurrence of any event or any information becoming known
to the Company that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect, as promptly as practicable
prepare and (subject to Section 4(a) hereof) file with the SEC, at the sole
expense of the Company, a supplement or post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(i) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 90 days
after the end of any 12-month period (or 120 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(j) Cooperate with each seller of Registrable Securities covered by any
Registration Statement in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(k) Use its reasonable best efforts to cause all Registrable Securities
relating to any Registration Statement to be listed on each securities exchange,
if any, on which similar securities issued by the Company are then listed.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Securities of any
seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request. Each seller as to which any
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Registrable Securities understands that the Securities
Act may require delivery of a Prospectus in connection with any sale thereof
pursuant to a Registration Statement, and each such Holder shall comply with the
applicable Prospectus delivery requirements of the Securities Act in connection
with any such sale.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(b)(ii) hereof
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect,
such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus to be sold by
such Holder until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(e) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any such notice, the
Registration Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 4(e) hereof or (y)
the Advice.
5. REGISTRATION EXPENSES
(a) All Registration Expenses shall be borne by the Company.
Notwithstanding the foregoing, the sellers of the Registrable Securities being
registered shall pay all (i) brokerage or underwriting fees, discounts and
commissions attributable to the sale of such Registrable Securities, (ii) the
fees and disbursements of any counsel or other advisors or experts retained by
such sellers (severally or jointly), and (iii) transfer taxes on resale of any
of the Registrable Securities by such sellers.
(b) For purposes of this Agreement, "Registration Expenses" shall mean
all fees and expenses incident to the compliance with this Agreement by the
Company (other than fees and expenses referred to in the second sentence of
Section 5(a) hereof), including, without limitation, (i) all registration and
filing fees, including, without limitation, (A) any SEC or NASD filing fees and
(B) fees and expenses of compliance with state securities or blue sky laws, (ii)
duplicating and copying expenses, (iii) messenger, telephone and delivery
expenses incurred by the Company, (iv) all fees and disbursements of counsel for
the Company, (v) fees and expenses of all other Persons retained by the Company,
including annual or special audit and "comfort" letters, (vi) stock exchange
listing fees and expenses, if any, and (vii) the expenses relating to printing
and distributing the Shelf Registration Statement, Piggy-Back Registration
Statement and any other documents necessary in order to comply with this
Agreement.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless each Holder of
Registrable Securities, the officers and directors of each such Person, and each
Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (collectively, "Losses") (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand (a "Claim")) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented from time to time) or any preliminary prospectus, or
caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus in light of the
circumstances under which they were made, not misleading, except insofar as such
Losses are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Company in writing by such
Participant expressly for use therein; provided, however, that the Company will
not be liable if such untrue statement or omission or alleged untrue statement
or omission was contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto and the Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and any such Loss suffered or incurred by the Participants resulted
from any Claim by any Person who purchased Registrable Securities which are the
subject thereof from such Participant and it is established in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Securities sold to such Person if
required by applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, and each Person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each Participant,
but only with reference to information relating to such Participant furnished to
the Company, in writing by such Participant expressly for use in such
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. The liability of any Participant under this
paragraph shall in no event exceed the proceeds received by such Participant
from sales of Registrable Securities giving rise to such obligations.
(c) If any Claim shall be brought or asserted against any Person in
respect of which indemnity may be sought pursuant to either of the two preceding
paragraphs, such Person (the "Indemnified Person") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may reasonably designate in such Claim and
shall pay the reasonable fees and expenses actually incurred by such counsel
related to such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person or any affiliate and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The Indemnifying Person shall not, in connection with any one such
proceeding or separate but substantially similar related proceedings in the same
jurisdiction arising out of the same general allegations, be liable for the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and all such fees and expenses shall be reimbursed
promptly as they are incurred. If the Company shall be the Indemnifying Person,
any such separate firm for the Indemnified Persons shall be designated in
writing by Participants who sold a majority in interest of Registrable
Securities sold by all such Participants and reasonably acceptable to the
Company. If the Company shall be the Indemnified Person, any such separate firm
for the Company, its directors, its officers who sign a Registration Statement
and such control Persons of the Company shall be designated in writing by the
Company. No Indemnifying Person shall be liable for any settlement of any
proceeding effected without its prior written consent (which consent shall not
be unreasonably withheld or delayed), but if settled with such consent or if
there be a final judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the Indemnifying Person
shall indemnify and hold harmless each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Persons
(which consent shall not be unreasonably withheld or delayed), effect any
settlement or compromise of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party, or indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
involves only the payment of money damages that are actually paid by the
Indemnifying Person or includes an unconditional written release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 6 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any Losses, then each
Indemnifying Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Person or Persons on the one hand
and the Indemnified Person or Persons on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
Losses (or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Person on the one hand or
such Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the Losses referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses actually
incurred by such Indemnified Person in connection with investigating or
defending any such Claim. Notwithstanding the provisions of this Section 6, in
no event shall a Participant be required to contribute any amount in excess of
the amount by which proceeds received by such Participant from sales of
Registrable Securities exceeds the amount of any damages that such Participant
has otherwise been required to pay or has paid by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(f) Any Losses for which an indemnified party is entitled to
indemnification or contribution under this Section shall be paid by the
Indemnifying Person to the Indemnified Person as such Losses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any of Purchaser, any Holder, any person
who controls Purchaser or any Holder, or any officers or directors of Purchaser
or such Holder, and (ii) any termination of this Agreement.
(g) The indemnity and contribution covenants contained in this Section
6 are in addition to any liability which any Indemnifying Person may otherwise
have to any Indemnified Person.
7. RULE 144
The Company will file the reports required to be filed by it under the
Exchange Act in a timely manner in accordance with the requirements of the
Exchange Act. The Company will also take such further action as any Holder of
Registrable Securities issued by the Company may reasonably request, to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144(k).
8. MISCELLANEOUS
(a) The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of (i) the
Company and (ii) the Holders of not less than a majority in aggregate amount of
the then-outstanding Registrable Securities; provided, however, that Section 4
and this Section 8(a) may not be amended, modified or supplemented without the
prior written consent of each Holder (including any person who was a Holder of
Registrable Securities disposed of pursuant to any Registration Statement)
affected by any such amendment, modification or supplement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority in aggregate amount of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement.
(b) Any notice herein required or permitted to be given shall be in
writing and may be personally served or delivered by nationally-recognized
overnight courier or by facsimile-machine confirmed telecopy, and shall be
deemed delivered at the time and date of receipt (which shall include telephone
line facsimile transmission). Each party shall provide notice to the other party
of any change in address. The addresses for such communications shall be:
If to the Company:
LaserSight Incorporated
00000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
After June 30, 1998:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
Xxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
If to Purchaser:
TLC The Laser Center Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx X0X 442
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
(c) This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto, and the Holders;
provided, however, that this Agreement shall not inure to the benefit of, or be
binding upon, a successor or assign of a Holder unless and to the extent such
successor or assign holds Registrable Securities.
(d) This Agreement may be executed in two or more counterparts,
including, without limitation, by facsimile transmission, all of which
counterparts shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause additional
original executed signature pages to be delivered to the other parties.
(e) The headings in this Agreement are for convenience of reference and
shall not form a part of, or affect the interpretation of, this Agreement.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
performed in that state. The parties hereto irrevocably consent to the
jurisdiction of the United States federal courts and state courts located in the
County of New Castle in the State of Delaware, in any suit or proceeding based
on or arising under this Agreement and irrevocably agree that all claims in
respect of such suit or proceeding may be determined in such courts. The parties
hereto irrevocably waive the defense of an inconvenient forum to the maintenance
of such suit or proceeding. The parties hereto further agree that service of
process upon the parties hereto mailed by first class mail shall be deemed in
every respect effective service of process upon each such party in any such suit
or proceeding. Nothing herein shall affect either party's right to serve process
in any other manner permitted by law. The parties hereto agree that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
(g) Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company or its affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
(h) Holders of Registrable Securities are intended third party
beneficiaries of the agreements made hereunder between the Company and Purchaser
and shall have the right to enforce this Agreement to the extent they deem such
enforcement necessary or advisable to protect their rights hereunder.
(i) This Agreement, together with the Securities Purchase Agreement and
the other agreements among the parties of even date herewith or therewith, is
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings among the parties with respect to such
subject matter.
(j) The Company agrees that during the time period beginning on the
dated hereof and continuing until the Company has satisfied its obligations
hereunder or until such obligations have expired, the Company will not enter
into any agreement related to the registration of its securities which is
inconsistent with the rights granted to the Holders pursuant to this Agreement.
The rights granted to Purchaser pursuant to this Agreement do not conflict with
any other agreements to which the Company is a party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
LASERSIGHT INCORPORATED TLC THE LASER CENTER INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ X. X. Xxxxx
-------------------------- ------------------------
Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
President and CEO Title: Vice-President of Acquisitions
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
