EXHIBIT 99.5
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
January 31, 2000, by and among LaserSight Incorporated, a Delaware corporation
(the "Company"), with its headquarters located at 0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx Xxxx, Xxxxxxx 00000, and BayStar Capital, L.P. ("BSC) and
BayStar International, Ltd. ("BSI), each with headquarters located at 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 (BSC and BSI shall be referred to herein
collectively and individually as the "urchaser"), with regard to the following:
RECITALS
A. In connection with the Securities Purchase Agreement dated of even
date herewith by and among the Company and the Purchaser (the "Securities
Purchase Agreement"), the Company has agreed, upon the terms and subject to the
conditions contained therein, to issue and sell to the Purchaser 253,968 (the
"Placement Shares") of the Company's common stock, par value $.001 per share
(the "Common Stock").
B. To induce the Purchaser to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide to the Holders certain
rights to 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
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 the Purchaser agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
specified:
Advice: See Section 4 hereof.
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Agreement: See the introductory paragraphs hereto.
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Blackout Event: means a determination by the Board made in good faith,
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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 a majority of the outside directors determine in good faith
would have a material adverse effect on the Company.
Blackout Period: See Section 3(a) hereof.
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Board: The Board of Directors of the Company.
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Claim: See Section 6(a) hereof.
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Common Stock: See the introductory paragraphs hereto.
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Company: See the introductory paragraphs hereto.
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Exchange Act: The Securities Exchange Act of 1934 and the rules and
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regulations of the SEC promulgated thereunder.
Form S-3: Form S-3 of the SEC under the Securities Act or any successor
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form.
Holdback Period: See Section 3(b) hereof.
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Holder: Any registered holder of a Registrable Security or Registrable
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Securities.
Indemnified Person: See Section 6(c) hereof.
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Indemnifying Person: See Section 6(c) hereof.
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Losses: See Section 6(a) hereof.
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NASD: See Section 4(j) hereof.
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Other Holders: See Section 2.2(a) hereof.
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Other Shares: See Section 2.2(a) hereof.
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Participant: See Section 6(a) hereof.
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Person: An individual, trustee, corporation, partnership, limited
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liability company, trust, unincorporated association, business association, firm
or other legal entity.
Piggyback Registration Statement: See Section 2.2(a) hereof.
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Prospectus: The prospectus included in any Registration Statement
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(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.
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Registrable Securities means the Placement Shares and any other
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securities issued or issuable with respect to any of the foregoing 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, or (ii) such
securities may at the time of determination be sold to the public pursuant to
Rule 144 without any restrictions or limitations whatsoever (including
restrictions or limitations related to affiliates) 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.
Registration Expenses: See Section 5(b) hereof.
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Registration Period: See Section 2.1(b) hereof.
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Registration Statement: Any registration statement of the Company filed
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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.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
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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
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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
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agency charged with the
enforcement of the federal securities laws.
Securities Act: See the introductory paragraphs hereto.
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Securities Purchase Agreement: See the introductory paragraphs hereto.
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Shelf Registration Statement: See Section 2.1(a) hereof.
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Subsidiary: Any corporation of which the Company owns securities
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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
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securities convertible into, or exercisable or exchangeable for, Common Stock
that is underwritten on a firm commitment basis.
2. SHELF REGISTRATION
2.1 Shelf Registration Statement.
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(a) The Company shall:
(i) prepare and, no more than 90 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 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 or otherwise, and (iii) subject to this Section and
Section 3, the date which is two 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 and Section 3, ending on the earliest of
the foregoing dates is referred to as the "Registration Period.") Subject to
Section 3 hereof, the Company shall use its best efforts to amend or 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. The Registration Period shall be extended by duration of (i) any period
during which a Holder is unable to utilize the Prospectus until the Company
amends or supplements the related Registration Statement pursuant to Section
4(h), and (ii) any Blackout Period.
(c) In addition to complying with the requirements of Section 4, 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, and (ii) otherwise comply in all 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 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 Company has notified Holder that the
Blackout Period or Holdback Period, as applicable, is no longer in effect.
(e) Subject to Sections 3 and 4 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, or if reasonably requested by the Holders of at least 30%
of the Registrable Securities then transferable pursuant to such Shelf
Registration Statement.
(f) Each Holder shall 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 Piggyback Registration Rights.
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(a) So long as the Holders hold Registrable Securities, if the Company
proposes or is required to file with the SEC a registration statement (the
"Piggyback Registration Statement") under the Securities Act in connection with
an Underwritten Offering of Common Stock (other than a registration statement on
a form 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 by the Company, the
Company will use reasonable best efforts to include in such Piggyback
Registration Statement that number of the Registrable Securities 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 of such Underwritten Offering 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 in the
following sentence and based on the written recommendation of the underwriter)
exclude or limit the number of Requested Shares to be sold pursuant to such
Piggyback Registration Statement. 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 Piggyback 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 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 and, if applicable, the Holders will
discontinue the offer and sale of Registrable Securities pursuant to any
effective Shelf Registration Statement or a Piggyback 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 225 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 during any 12-month 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. If the Company shall give any notice of postponement
of the filing or effectiveness of any registration statement or shall request
the Holders not to sell Registrable Securities pursuant to an effective
Registration Statement, the Company shall not, during the period of postponement
or withdrawal, sell any Common Stock for its own account pursuant to a
Registration Statement or permit any stockholder of the Company to sell Common
Stock pursuant to an effective Registration Statement, in either case other than
pursuant to a registration statement on Form S-8 (or an equivalent registration
form then in effect).
4. REGISTRATION PROCEDURES
In connection with the filing of the Shelf Registration Statement or a
Piggyback 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) At least 3 business days before the filing of the Shelf
Registration Statement or Piggyback Registration Statement, and a reasonable
time before the filing of or any Prospectus or any amendments or supplements
thereto, the Company shall afford to the Purchaser an opportunity to review a
draft of the Shelf Registration Statement, Piggyback Registration Statement or
any Prospectus or any amendments or supplements thereto, as applicable, except
for such portions thereof which outside securities counsel to the Company has
advised the Company contain material non-public information. The Holders of
Registrable Securities included or intended to be included in a Registration
Statement shall have a reasonable opportunity to comment on the sections of any
such Registration Statement or related Prospectus captioned "Selling
Stockholders" or "Plan of Distribution" (or the equivalent) and the Company
shall not file any Registration Statement that includes in such sections
statements concerning any such Holder, its holdings of Registrable Securities,
or its intended method or methods of distribution as to which such Holder shall
reasonably object.
(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 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 best efforts to
obtain the withdrawal of any such order at the earliest practicable time.
(d) Furnish to each selling Holder of Registrable Securities and each
managing underwriter, if any, at the sole expense of the Company one conformed
copy of the Shelf Registration Statement or Piggyback 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, and the
underwriters, if any, 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 and the underwriters, agents or dealers, if any, 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, the managing underwriter or
underwriters, if any, and respective counsel, 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 laws of such jurisdictions within the United States as any selling
Holder or the managing underwriter or underwriters reasonably request; 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 unreasonable material expense or burden, or (E) make any
change in its charter or by-laws, which in each case the Board, in good faith,
determines to be contrary to the best interests of the Company and its
stockholders.
(g) Cooperate with the selling Holders of Registrable Securities and
the managing underwriter or underwriters, if any, 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 the managing underwriter or
underwriters, if any, or 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
or national market system, if any, on which similar securities issued by the
Company are then listed.
(l) In connection with any Underwritten Offering, enter into an
underwriting agreement as is customary in underwritten offerings of common
equity similar to the Common Stock, and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or the disposition of such Registrable
Securities and, in such connection:
(i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Company and
its subsidiaries, as applicable (including any acquired business,
properties or entity, if applicable), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in firm-commitment underwritten
offerings of common equity similar to the Common Stock, and confirm the
same in writing if and when requested;
(ii) obtain the written opinions of counsel to the Company in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
managing underwriter or underwriters;
(iii) obtain "comfort" letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter
or underwriters from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary or of any business acquired by the
Company for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the
Registration Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested
by the managing underwriter or underwriters as permitted by the
Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 hereof (or such other
provisions and procedures acceptable to Holders of a majority of the
Registrable Securities covered by such Registration Statement and the
managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section. The above shall be
done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(l) Make available for inspection by any underwriter participating in
any such disposition of Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such underwriter, at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Company and its
subsidiaries, as applicable, as shall be reasonably necessary to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act,
and cause the officers, directors and employees of the Company and its
Subsidiaries, as applicable, to supply all information reasonably requested by
any such inspector in connection with such Registration Statement.
(m) Enter into such customary agreements (including, if applicable, an
underwriting agreement) and take such other actions as the Holders of a majority
of the Registrable Securities participating in such offering shall reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities. The Holders of the Registrable Securities which are to be
distributed by such underwriters shall be parties to such underwriting agreement
and may, at their option, require that the Company make to and for the benefit
of such Holders the representations, warranties and covenants of the Company
which are being made to and for the benefit of such underwriters and which are
of the type customarily provided to institutional investors in secondary
offerings.
(n) Use its reasonable best efforts to take all other steps reasonably
necessary or advisable to effect the registration of the Registrable Securities
covered by a Registration Statement.
(o) Cause to be maintained a transfer agent and registrar for all
Registrable Securities covered by a Registration Statement.
(p) Deliver promptly to each Holder participating in the offering and
each underwriter, if any, copies of all correspondence between the SEC and the
Company, its counsel or auditors with the SEC or its staff with respect to a
Registration Statement, other than those portions of any such correspondence
which contain information subject to attorney-client privilege or a request for
confidential treatment with respect to the Company, and, upon receipt of such
confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by any underwriter, if any, participating in
any disposition to be effected pursuant to a Registration Statement and by any
attorney, accountant or other agent retained by any such underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers, directors
and employees to supply all information reasonably requested by any such
underwriter, attorney, account or agent in connection with such registration
statement.
(q) Make reasonably available to its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Registrable Securities in any unwritten offering.
(r) Promptly prior to the filing of any document which (i) is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement), and (ii) contains
disclosure specifically referring to the Holders provide copies of such document
to counsel for the selling Holders of Registrable Securities and to each
managing underwriter, if any, and make the Company's representatives reasonably
available for discussion of such information and make such changes in such
information concerning the selling Holders prior to the filing thereof as
counsel for such selling holders or underwriters may reasonably request.
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 is being effected shall 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 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 (i) the copies of the
supplemented or amended Prospectus contemplated by Section 4(e) hereof, or (ii)
the Advice.
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.
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)
printing expenses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, as the case may be, 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, Piggyback Registration Statement and any other
documents necessary in order to comply with this Agreement.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each Holder of
Registrable Securities, the officers, partners (and directors, officers,
employees and stockholders thereof), employees, stockholders and directors of
each such Person (each, a "Participant"), from and against any and all losses,
claims, damages and liabilities, joint or several, actions or proceedings
(commenced or threatened) (collectively, "Losses") (including, without
limitation, the reasonable legal fees and other expenses (including settlements
made pursuant to the terms of Section 6(c)) 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 (i) 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,
(ii) 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 written
information relating to any Participant furnished to the Company by such
Participant expressly for use therein, or (iii) any violation by the Company of
any federal, state or common law rule or regulation applicable to the Company
and relating to action required of or inaction by the Company in connection with
any such registration, and the Company will reimburse any such indemnified party
for any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending such Claim as such expenses are
incurred; 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. Such indemnity and reimbursement of expenses shall remain in full
force and effect regardless of any investigation made by as on behalf of such
indemnified party and shall survive the transfer of such securities by such
Holder.
(b) Each Participant shall, severally and not jointly, 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 net 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. If, however, the allocation provided in the second
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative fault,
but also the relative benefits of the indemnifying party and the indemnified
party as well as any other relevant equitable considerations.
(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 net proceeds received by such Participant from sales of
Registrable Securities exceed 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 the Purchaser or any Holder, or any officers or directors of the
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
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
The Lowenbaum Partnership, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
and
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
If to the Purchaser:
BayStar Capital, L.P.
BayStar International, Ltd.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
(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. If any Person shall acquire
Registrable Securities from any Holder, in any manner (except for any
acquisition in violation of this Agreement, the Securities Purchase Agreement or
applicable law) whether by operation of law or otherwise, such transferee shall
promptly notify the Company and such Registrable Securities acquired from such
Holder shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such Person shall be entitled to
receive the benefits of and be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement. If the Company
shall so request, any such successor or assign shall agree in writing to acquire
and hold the Registrable Securities acquired from such Holder subject to all of
the terms hereof.
(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 such State. The parties hereto irrevocably consent to the
jurisdiction of the United States federal courts and Delaware 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. Service of process upon any
party hereto mailed by first-class mail shall be deemed in every respect
effective service of process upon such party in any such suit or proceeding.
Nothing herein shall affect any party's right to serve process in any other
manner permitted by law. 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 among the Company and the
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 to be a
complete and exclusive statement of their agreement and understanding in respect
of the subject matter hereof. 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) During the time period beginning on the date 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 the
Purchaser pursuant to this Agreement do not conflict with any other agreements
to which the Company is a party.
(k) If Registrable Securities are held by a nominee for the beneficial
owner thereof, the beneficial owner thereof may, at its option, be treated as
the Holder of such Registrable Securities for purposes of any request or other
action by any Holder or Holders of Registrable Securities pursuant to this
Agreement (or any determination of any number or percentage of shares
constituting Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement), provided that the Company shall have
received assurances reasonably satisfactory to it of such beneficial ownership.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
LASERSIGHT INCORPORATED BAYSTAR CAPITAL, L.P.
By: BayStar Management, L.L.C.
By: /s/Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------- --------------------------
Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Chief Financial Officer --------------------------
Title: Investment Manager
--------------------------
BAYSTAR INTERNATIONAL, LTD.
By: BayStar International Management, L.L.C.
By: /s/ Xxxxxxx X. Xxxx
: --------------------------
Name: Xxxxxxx X. Xxxx
--------------------------
Title: Investment Manager
--------------------------
SIGNATURE PAGE
TO REGISTRATION RIGHTS AGREEMENT
