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Exhibit 10.1
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT is entered into as of August 8, 2000 by
and among Control Delivery Systems, Inc., a Delaware corporation (the
"Company"), and those stockholders of the Company listed on Schedule I attached
hereto (the "Holders").
WHEREAS, the Company and the Holders wish to provide certain arrangements
with respect to the registration of shares of capital stock of the Company under
the Securities Act (as defined herein);
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties agree as follows:
1. CERTAIN DEFINITIONS. AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING RESPECTIVE MEANINGS:
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, $.01 par value of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Founders" means Paul Ashton and Thomas Smith.
"Preferred Stock" means the Company's Series A Convertible Preferred Stock,
$.01 par value.
"Registration Expenses" means the expenses described in Section 5.
"Registrable Shares" means (a) the shares of Common Stock issued or
issuable upon conversion of any of the Preferred Stock, (b) any other shares of
Common Stock issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recapitalization, or similar events), (c) shares
of the Company's capital stock acquired pursuant to Section 2.2 of the
Stockholders' Agreement of even date herewith by and among the Company and the
Stockholders (as defined therein), and (d) shares of Common Stock held by Bausch
& Lomb Incorporated and the Founders as of the date of this Agreement.
Registrable Securities shall cease to be Registrable Securities (i) when a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall
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have been disposed of in accordance with such registration statement, (ii) when
such securities shall have been publicly distributed pursuant to an exemption
from the registration requirements of the Securities Act, or (iii) when all of
the Registrable Securities held by a Holder could be sold under Rule 144 in a
three (3) month period.
For purposes of this Agreement, the number of shares of Registrable
Securities outstanding at any time shall be determined by adding the number of
shares of Common Stock outstanding which are, and the maximum number of shares
of Common Stock issuable pursuant to then convertible or exercisable securities
which upon issuance would be, Registrable Securities.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"Shares" means shares of the Preferred Stock.
"Stockholder" means the Holders and any persons or entities to whom the
rights granted under this Agreement are transferred, and their successors or
assigns.
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2. REQUIRED REGISTRATIONS.
2.1. Demand Registrations. At any time after the earlier of (i) the
date six months after the closing of the first sale of securities by the Company
pursuant to a Registration Statement and (ii) August 8, 2005, a Stockholder or
Stockholders (other than the Founders) holding in the aggregate at least thirty
percent (30%) of the Registrable Shares may request, in writing, that the
Company effect the registration of Registrable Shares held by such Stockholders
as a group if the anticipated gross proceeds of the offering to which such a
Registration Statement applies are at least ten million dollars ($10,000,000).
If the Stockholders initiating the registration intend to distribute the
Registrable Shares in an underwritten offering, they shall so advise the Company
in their request.
In the event such registration is underwritten, the right of other
Stockholders to participate shall be conditioned on such Stockholders'
participation in such underwriting upon the same terms and conditions (provided
that the terms of the underwriting are consistent with this Agreement). Upon
receipt of any such request, the Company shall promptly give written notice of
such proposed registration to all Stockholders. Such Stockholders shall have
the right, by giving written notice to the Company within 30 days after the
Company provides its notice, to elect to have included in such registration such
of their Registrable Shares as such Stockholders may request in such notice of
election; provided that if the underwriter managing the offering determines
that, because of marketing factors, all of the Registrable Shares requested to
be registered may not be included in the offering, then all Stockholders who
have requested registration shall participate in the registration pro rata based
on their total ownership of Registrable Shares. The Company shall, as
expeditiously as possible, use its best efforts to effect the registration of
all Registrable Shares which the Company has been requested to so register.
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2.2. Registration on Form S-3. At any time after the Company becomes
eligible to file a Registration Statement on Form S-3 (or any successor form
relating to secondary offerings), a Stockholder or Stockholders may request the
Company, in writing, to effect the registration on Form S-3 (or any successor
form), of all or such portion of the Registrable Shares as the holder or holders
shall specify so long as the anticipated aggregate offering price for such
registration would exceed $2,500,000. Upon receipt of any such request, the
Company shall promptly give written notice of such proposed registration to all
Stockholders. If the Stockholders initiating the registration intend to
distribute the Registrable Shares in an underwritten offering, they shall so
advise the Company in their request. In the event such registration is
underwritten, the right of other Stockholders to participate shall be
conditioned on such Stockholders' participation in such underwriting upon the
same terms and conditions (provided that the terms of the underwriting are
consistent with this Agreement). Upon receipt of any such request, the Company
shall promptly give written notice of such proposed registration to all
Stockholders. Such Stockholders shall have the right, by giving written notice
to the Company within 30 days after the Company provides its notice, to elect to
have included in such registration such of their Registrable Shares as such
Stockholders may request in such notice of election; provided that if the
underwriter managing the offering determines that, because of marketing factors
all of the Registrable Shares requested to be registered may not be included in
the offering, then all Stockholders who have requested registration shall
participate in the registration pro rata based on their total ownership of
Registrable Shares. The Company shall, as expeditiously as possible, use its
best efforts to effect the registration on Form S-3 (or any successor form) of
all Registrable Shares that the Company has been so requested to register.
2.3. Limitations. The Company shall not be required to effect more than
two registrations pursuant to Section 2.1 above, nor to effect such a
registration more than once in any twelve-month period. Under Section 2.2 above,
the Stockholder or Stockholders shall have the right to require the Company to
effect an unlimited number of registrations on Form S-3; provided, however, that
in any one year the Company shall not be required to effect more than two such
registrations and any such registration shall be separated from any previous
registration by a period of at least six months. For purposes of this Section
2.3, the obligation to effect a registration pursuant to Sections 2.1 and 2.2
above shall be deemed satisfied only when a registration statement covering the
Registrable Shares included in such registration statement shall have become
effective and, if the method of disposition is a firm commitment underwritten
public offering, all such Registrable Shares shall have been sold pursuant
thereto. The Founders shall not have the rights granted to Stockholders under
Section 2.1.
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2.4. Delay for Good Cause. If the Company shall furnish to the Initiating
Holders a certificate signed by the President of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it would be
materially detrimental to the Company and its shareholders for such registration
statement to be filed on or before the date filing would be required and it is
therefore essential to defer the filing of such registration statement, then the
Company may direct that such request for registration be delayed for a period of
time not in excess of one hundred eighty (180) days, such right to delay a
request to be exercised by the Company not more than once in any one-year
period.
2.5. Selection of Underwriter. In the case of any registration effected
pursuant to this Section 2, the requesting Stockholders shall have the right to
designate the managing
underwriter, subject to the approval of the Company, which approval may not be
unreasonably withheld or delayed.
3. INCIDENTAL REGISTRATION.
3.1. Company-Initiated Registration. After the closing of the first sale
of securities by the Company pursuant to a Registration Statement, whenever the
Company proposes to file a Registration Statement, prior to such filing it shall
give written notice to all Stockholders of its intention to do so, and upon the
written request of a Stockholder or Stockholders given within 30 days after the
Company provides such notice (which request shall state the intended method of
disposition of such Registrable Shares), the Company shall use its best efforts
to cause all Registrable Shares which the Company has been requested to register
to be registered under the Securities Act to the extent necessary to permit
their sale or other disposition in accordance with the intended methods of
distribution specified in the request of such Stockholder(s); provided that the
Company shall have the right to postpone or withdraw any registration effected
pursuant to this Section 3.1 without obligation to any Stockholder.
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3.2. Limitations. In connection with any offering under this Section 3
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such underwriting unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided that the terms of the underwriting are
consistent with this Agreement). If in the opinion of the managing underwriter,
because of marketing factors, all of the Registrable Securities that
Stockholders have requested to be included may not be included in the offering,
the managing underwriter may reduce the number of shares proposed to be
registered by the Stockholders to a number not less than the number of
Registrable Securities as constitutes thirty-five percent (35%) of all shares
registered in the offering. In the event of such a reduction in the number of
shares to be included in the underwriting, all Stockholders who have requested
registration shall participate in the underwriting pro rata based upon their
total ownership of Registrable Shares taken in the aggregate and if any such
Stockholder would thus be entitled to include more Registrable Shares than such
Stockholder requested, the excess shall be allocated among such other requesting
Stockholders pro rata based on their proportionate ownership of Registrable
Shares. No other securities requested to be included in a registration for the
account of anyone other than the Company or the Stockholders shall be included
in a registration unless all Registrable Shares requested to be included in such
registration are so included.
4. REGISTRATION PROCEDURES. IF AND WHENEVER THE COMPANY IS REQUIRED BY THE
PROVISIONS OF THIS AGREEMENT TO USE ITS BEST EFFORTS TO EFFECT THE REGISTRATION
OF ANY OF THE REGISTRABLE SHARES UNDER THE SECURITIES ACT, THE COMPANY SHALL:
4.1. Filing. File with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
4.2. Amendments and Supplements As expeditiously as possible prepare
and file with the Commission any amendments and supplements to the Registration
Statement and the prospectus included in the Registration Statement as may be
necessary to keep the Registration Statement effective for a period of not less
than 180 days from the effective date;
4.3. Copies of Prospectus. As expeditiously as possible furnish to each
selling Stockholder such reasonable numbers of copies of the prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the selling Stockholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by the selling Stockholder;
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4.4. Blue Sky Qualification. As expeditiously as possible use its best
efforts to register or qualify the Registrable Shares covered by the
Registration Statement under the securities or Blue Sky laws of such states as
the selling Stockholder shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable the selling Stockholder
to consummate the public sale or other disposition in such jurisdictions of the
Registrable Shares owned by the selling Stockholder, as the case may be;
provided, however, that the Company shall not thereby be required to qualify as
a foreign corporation or execute a general consent to service of process in any
jurisdiction;
4.5. Underwritten Offering. In the event that Registrable Shares are
sold pursuant to a Registration Statement in an underwritten offering, enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwriters of such offering;
4.6. Opinion of Counsel. In connection with an underwritten public
offering, furnish to each selling Stockholder a signed counterpart, addressed to
all such selling Stockholders, of an opinion of counsel for the Company
experienced in securities law matters covering substantially the same matters
with respect to the registration statement and the prospectus as are customarily
covered in opinions of issuer's counsel delivered to underwriters in
underwritten public offerings of securities;
4.7. Earnings Statement. Use its best efforts to comply with all
applicable rules and regulations of the Commission and make available to it
security holders, as soon as reasonably practicable, an earnings statement of
the Company (in form complying with the provisions of Rule 158 promulgated under
the Securities Act) covering the period of at least 12 months beginning with the
first month following the effective date of the registration statement;
4.8. Listing. Use its best efforts either to list the Registrable
Shares on a national securities exchange or have them designated as national
market securities by the National Association of Securities Dealers, Inc.
("NASD").
4.9. Comfort Letter. In connection with an underwritten public offering,
furnish a "comfort" letter signed by the Company's independent public
accountants who have examined and reported on the Company's financial statements
included in the Registration Statement covering substantially the same matters
with respect to the registration statement and to events subsequent to the date
of the financial statements as are customarily covered in accountants' "comfort"
letters delivered to the underwriters in underwritten public offerings of
securities.
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If the Company has delivered preliminary or final prospectuses to the
selling Stockholder and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly notify
the selling Stockholder and, if requested, the selling Stockholder shall
immediately cease making offers of Registrable Shares shall return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholder with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholder shall be free to resume making offers of
the Registrable Shares.
Each holder of Registrable Shares included in any registration shall
furnish to the Company such information regarding such holder and the
distribution proposed by such holder as the Company may request in writing and
as shall be required in connection with any registration, qualification or
compliance referred to in this Section 4.
5. ALLOCATION OF EXPENSES. THE COMPANY SHALL PAY THE REGISTRATION EXPENSES
FOR THE TWO REGISTRATIONS REQUESTED BY THE STOCKHOLDERS PURSUANT TO SECTION 2.1,
AND OF ALL REGISTRATIONS PURSUANT TO SECTIONS 2.2 AND 3. IF A REGISTRATION
REQUESTED BY THE STOCKHOLDERS PURSUANT TO SECTION 2.1 OR SECTION 2.2 IS
WITHDRAWN AT THE REQUEST OF THE STOCKHOLDERS REQUESTING IT (OTHER THAN AS A
RESULT OF INFORMATION CONCERNING THE BUSINESS OR FINANCIAL CONDITION OF THE
COMPANY THAT IS MADE KNOWN TO THE STOCKHOLDERS AFTER THE DATE ON WHICH SUCH
REGISTRATION WAS REQUESTED) AND IF THE REQUESTING STOCKHOLDERS ELECT NOT TO HAVE
SUCH REGISTRATION COUNTED AS A REGISTRATION REQUESTED UNDER SUCH SECTIONS, THE
REQUESTING STOCKHOLDERS SHALL PAY THE REGISTRATION EXPENSES OF SUCH REGISTRATION
PRO RATA IN ACCORDANCE WITH THE NUMBER OF THEIR REGISTRABLE SHARES INCLUDED IN
SUCH REGISTRATION. ALL OTHER REGISTRATION EXPENSES WILL BE BORNE PRO RATA AMONG
THE REQUESTING STOCKHOLDERS, IN ACCORDANCE WITH THE NUMBER OF THEIR REGISTRABLE
SHARES INCLUDED IN SUCH REGISTRATION, AND THE COMPANY, IF IT PARTICIPATES IN
SUCH REGISTRATION. FOR PURPOSES OF THIS SECTION, THE TERM "REGISTRATION
EXPENSES" SHALL MEAN ALL EXPENSES INCURRED BY THE COMPANY IN COMPLYING WITH THIS
SECTIONS 2 AND 3, INCLUDING, WITHOUT LIMITATION, ALL REGISTRATION AND FILING
FEES, EXCHANGE OR NATIONAL MARKET LISTING FEES, ALL FEES AND EXPENSES OF
COMPLYING WITH SECURITIES OR BLUE SKY LAWS, ALL FEES AND EXPENSES ASSOCIATED
WITH FILINGS WITH THE NASD, ALL PRINTING EXPENSES, FEES AND DISBURSEMENTS OF
COUNSEL FOR THE COMPANY AND ITS INDEPENDENT PUBLIC ACCOUNTANTS, FEES AND
DISBURSEMENTS OF ONE COUNSEL FOR THE SELLING STOCKHOLDERS RETAINED BY
STOCKHOLDERS HOLDING A MAJORITY OF THE REGISTRABLE SHARES INCLUDED IN A
REGISTRATION AND THE EXPENSE OF ANY SPECIAL AUDITS INCIDENT TO OR REQUIRED BY
ANY SUCH REGISTRATION, BUT EXCLUDING THE PORTION OF THE UNDERWRITING DISCOUNTS
AND SELLING COMMISSIONS ATTRIBUTABLE TO THE REGISTRABLE SHARES BEING OFFERED AND
SOLD THEREIN AND FEES OF MORE THAN ONE COUNSEL FOR THE SELLING STOCKHOLDERS.
SUCH UNDERWRITING DISCOUNTS AND SELLING COMMISSIONS SHALL BE BORNE PRO RATA BY
THE SELLING STOCKHOLDERS IN ACCORDANCE WITH THE NUMBER OF THEIR REGISTRABLE
SHARES TAKEN IN THE AGGREGATE INCLUDED IN SUCH REGISTRATION.
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6. INDEMNIFICATION.
6.1. Company Indemnification. In the event of any registration of any
of the Registrable Shares under the Securities Act pursuant to this Agreement,
then to the extent permitted by law, the Company shall indemnify and hold
harmless the seller of such Registrable Shares, its partners, directors,
officers and employees and any fund manager or fiduciary (which persons shall be
deemed to be included in the term seller in this Section 6.1), each underwriter
of such Registrable Shares and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities, joint or several, to
which such seller, underwriter or controlling person may become subject under
the Securities Act, the Exchange Act, state securities laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement under
which such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company shall reimburse such seller, underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable to any such seller,
underwriter or controlling in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
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6.2. Seller Indemnification. In the event of any registration of any of
the Registrable Shares under the Securities Act pursuant to this Agreement, then
to the extent permitted by law, each seller of Registrable Shares severally and
not jointly, shall indemnify and hold harmless the Company, each of its
directors and officers and each underwriter (if any) and each person, if any,
who controls the Company or any such underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company, such directors and
officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities laws or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
the statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such seller,
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement; provided, however, that the
obligations of such Stockholder hereunder shall be limited to an amount equal to
the net proceeds to such Stockholder of Registrable Shares sold as contemplated
herein.
6.3. Notice of Claims, etc. Each party entitled to indemnification
under this Section (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom; provided, that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld or delayed); and, provided, further, that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 6. The Indemnified
Party may participate in such defense at such party's expense; provided,
however, that the Indemnifying Party shall pay such expense if representation of
such Indemnified Party by the counsel retained by the Indemnifying Party would
be inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as a
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a general release from all liability in respect of such claim or litigation,
and no Indemnified Party shall consent to entry of any judgment or settle such
claim or litigation without the prior written consent of the Indemnifying Party.
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6.4. Contribution. If for any reason the foregoing indemnification is
not available, or is insufficient to hold harmless an Indemnified Party, other
than by reason of the exceptions provided herein, then the Indemnifying Party
shall contribute to the amount paid or payable by the Indemnified Party as a
result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the holder of Registrable Shares
and the Company as well as any other equitable considerations including the
parties' relative knowledge and access to information concerning the matter with
respect to which any claim is asserted and the opportunity to correct and
prevent any such statement or omission leading to such loss, claim, damage or
liability (or actions in respect thereof), but not including the relative
benefits received by the holders of Registrable Shares on the one hand and the
Company on the other; provided, however, that in any such case (i) no holder of
Registrable Shares will be required to contribute except to the extent and under
such circumstances as such holder would be required to provide indemnification
hereunder and then only in an amount not in excess of the net proceeds to it of
all Registrable Shares sold in the registration, and (ii) 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 is not so
guilty.
7. MISCELLANEOUS.
7.1. "Stand-Off" Agreement. Each Stockholder agrees that without the
consent of the managing underwriter it will not, for a period of one hundred
eighty (180) days following the effective date of the registration statement for
the initial public offering by the Company of its equity securities, directly or
indirectly sell, offer to sell, grant any option for the sale of, or otherwise
dispose of any common equity or securities convertible into common equity;
provided, that all officers and directors of the Company and all holders of at
least two percent (2%) of the Company's then-outstanding Common Stock enter into
similar agreements; and provided further, that this Section 7.1 will not apply
to transactions relating to shares of Common Stock or other securities acquired
in open market transactions after the completion of the Company's initial public
offering; and provided further, that in the event any Stockholder is released in
whole or in part from such Stockholder's obligations under this Section 7.1,
each other Stockholder shall be proportionally released from such other
Stockholder's obligations under this Section 7.1. The Company may impose stop-
transfer instructions with respect to the Registrable Shares or other securities
subject to the foregoing restriction until the end of the stand-off period.
7.2. Rule 144 Requirements. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Commission that may at any time permit such
stockholder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
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(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act (at any time after
it has become subject to the reporting requirements of the Exchange Act);
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request a
written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after 90 days after the closing of
the first sale of securities by the Company pursuant to a Registration
Statement), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
7.3. Mergers. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company is not the
surviving corporation unless the proposed surviving corporation shall, prior to
and as a condition to such merger, consolidation or reorganization, agree in
writing to assume the obligations of the Company under this Agreement; provided,
however, that the provisions of this Section 7.3 shall not apply to any such
merger, consolidation or reorganization in which the consideration to be
received consists solely of (i) cash or evidences of indebtedness or (ii)
securities of the surviving corporation that the surviving corporation has
agreed to register for resale under the Securities Act within 90 days of the
completion of the transaction.
7.4. Transfer of Rights. This Agreement, and the rights and obligations
of each Holder hereunder, may be assigned by such Holder to (i) any person or
entity that acquires at least ten percent (10%) of the Registrable Shares
originally issued to such Holder, or (ii) any general or limited partner or any
officer or director or "affiliate," as defined in Rule 405 promulgated under the
Securities Act, of any Holder, including, but not limited to, members of such
Holder's immediate family, irrevocable trusts for estate planning purposes and
personal representatives; provided, that any such transferee execute a writing
agreeing to be bound by the provisions of this Agreement and be a Stockholder
for all purposes hereunder.
7.5. Governing Law. This Agreement shall be governed in all respects by
the laws of The Commonwealth of Massachusetts without giving effect to the
conflict of laws principles.
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7.6. Entire Agreement; Amendment and Waiver. This Agreement constitutes
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof. Neither this Agreement nor any term may be
amended, waived, discharged or terminated, except by a written instrument signed
by the Company and Stockholders holding 66 2/3% or more of the Registrable
Shares, but in no event shall any such amendment, waiver, discharge or
termination increase the obligations of any Stockholder hereunder or reduce the
benefits in a manner that treats Stockholders differently, except upon the
written consent of such Stockholder. Copies of such amendment, waiver, discharge
or termination shall be delivered to any Holders who did not execute such
consent. No failure or delay on the part of any party to this Agreement shall in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. Bausch & Lomb Incorporated and the
Founders agree that this Agreement supercedes Section 3 of the Stockholders
Agreement dated as of December 31, 1992 among the Founders, Vincent Manopoli and
Chiron IntraOptics and that such Section 3 shall be terminated, and each party
shall no longer have any rights under such Section 3, as of the date of this
Agreement.
7.7. Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed effectively given
upon personal delivery or five days after deposit with the United States Post
Office, by registered or certified mail, postage prepaid, addressed to the
Company at its principal office and to a Holder at its address on the records
maintained by the Company or at such other address as any party may designate by
ten days' prior written notice to the other party.
7.8. Rights; Separability. Unless otherwise expressly provided herein,
each Holder's rights hereunder are several rights, not rights jointly held with
any of other Holders. In case any provision of this Agreement shall be held to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
7.9. Titles. The titles of the Sections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
7.10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one Agreement.
-13-
<PAGE>
The undersigned have executed this Agreement under seal as of the date first
above written.
CONTROL DELIVERY SYSTEMS, INC.
By: /s/ Paul Ashton
--------------------------
Name: Paul Ashton
Title: President
By: /s/ Thomas J. Smith
--------------------------
Name: Thomas J. Smith
Title: Chairman
<PAGE>
ESSEX WOODLANDS HEALTH VENTURES FUND V, L.P.
By: Essex Woodlands Health Ventures V, L.L.C.
By: /s/ James L. Currie
----------------------------------
Name: James L. Currie
Title: Managing Director
ESSEX WOODLANDS HEALTH VENTURES FUND IV, L.P.
By: Essex Woodlands Health Ventures IV, L.L.C.
By: /s/ James L. Currie
----------------------------------
Name: James L. Currie
Title: Managing Director
<PAGE>
CAPITAL RESEARCH AND MANAGEMENT COMPANY,
On behalf of
SMALLCAP WORLD FUND, INC.
By: /s/ Catherine M. Ward
----------------------------------
Name: Catherine M. Ward
Title: Senior Vice President
<PAGE>
BROOKSIDE CAPITAL PARTNERS FUND, L.P.
By: /s/ Ed Brakeman
----------------------------------
Name: Ed Brakeman
Title: Managing Director
<PAGE>
ESSEX PRIVATE PLACEMENT FUND III - A
ESSEX PRIVATE PLACEMENT FUND III - B
By: Essex Investment Management Company, LLC
its General Partner
By: /s/ Susan P. Stickells
----------------------------------
Name: Susan P. Stickells
Title: Principal
<PAGE>
T. ROWE PRICE NEW HORIZONS FUND, INC.
By: /s/ John H. Laporte
----------------------------------
Name: John H. Laporte
Title: Director
T. ROWE PRICE HEALTH SCIENCES FUND, INC.
By: /s/ John H. Laporte
----------------------------------
Name: John H. Laporte
Title: Director
<PAGE>
ANVIL INVESTMENT ASSOCIATES, LP
By: Anvil Management Company, LLC
its General Partner
Anvil Investment Associates L.P.
By: /s/ Theodore H. Ashford
----------------------------------
Theodore H. Ashford, Member
<PAGE>
MORGAN STANLEY DEAN WITTER EQUITY
FUNDING, INC.
By: /s/ Thomas A. Clayton
----------------------------------
Name: Thomas A. Clayton
Title: Vice President
MORGAN STANLEY DEAN WITTER VENTURE
PARTNERS IV, L.P.
MORGAN STANLEY DEAN WITTER VENTURE
INVESTORS IV, L.P.
MORGAN STANLEY DEAN WITTER VENTURE
OFFSHORE INVESTORS IV, L.P.
By: MSDW Venture Partners IV, L.L.C.,
as General Partner of each of the limited
partnerships named above
By: MSDW Venture Partners IV, Inc., as Member
By: /s/ Debra Abramovitz
----------------------------------
Name: Debra Abramovitz
Title: Principal
<PAGE>
RGIP, LLC
/s/ Douglas N. Ellis
----------------------------------
Name: Douglas N. Ellis
Title: Managing Member
<PAGE>
/s/ Peter Liley
----------------------------------
Peter Liley
/s/ Leann Reitzig
----------------------------------
Leann Reitzig
/s/ Steve Silverman
----------------------------------
Steve Silverman
/s/ John Bierly
----------------------------------
John Bierly
/s/ Doug Gaeth
----------------------------------
Doug Gaeth
/s/ Bob Baker
----------------------------------
Bob Baker
/s/ Phil McCarthy
----------------------------------
Phil McCarthy
<PAGE>
/s/ John Reitter
----------------------------------
John Reitter
/s/ John Slattery, Jr.
----------------------------------
John Slattery, Jr.
/s/ John Slattery, Sr.
----------------------------------
John Slattery, Sr.
/s/ Joseph Cannistraro
----------------------------------
Joseph Cannistraro
/s/ Dean Elliott
----------------------------------
Dean Elliott
/s/ Abdul R. Piracha
----------------------------------
Abdul R. Piracha
/s/ John Willadsen
----------------------------------
John Willadsen
/s/ Alan Perry
----------------------------------
Alan Perry
/s/ Dr. Edward Wilk
----------------------------------
Dr. Edward Wilk
<PAGE>
/s/ Thomas DeRosa
----------------------------------
Thomas DeRosa
/s/ Christina Takoudes Morrison
----------------------------------
Christina Takoudes Morrison
/s/ Stanley B. Blaylock
----------------------------------
Stanley B. Blaylock
/s/ Brent B. Milner
----------------------------------
Brent B. Milner
/s/ David Steinberg
----------------------------------
David Steinberg
/s/ James P. Scopa
----------------------------------
James P. Scopa
/s/ Michael H. Cohen
----------------------------------
Michael H. Cohen
/s/ Greg Parekh
----------------------------------
Greg Parekh
/s/ Dallas Miller
----------------------------------
Dallas Miller
<PAGE>
/s/ Richard T. Broglino
----------------------------------
Richard T. Broglino
/s/ Patricia Rupnow
----------------------------------
Patricia Rupnow
/s/ Karen Boyd
----------------------------------
Karen Boyd
/s/ Vincent C. Manopoli
----------------------------------
Vincent C. Manopoli
<PAGE>
BAUSCH & LOMB INCORPORATED
By: /s/ Thomas Riedhammer
------------------------------
Name: Thomas Riedhammer
Title: Senior Vice President
<PAGE>
SCHEDULE I
Investors
Essex Woodlands Health Ventures Fund V, LP
Essex Woodlands Health Ventures Fund IV, L.P.
SMALLCAP World Fund, Inc.
Brookside Capital Partners Fund, L.P.
Essex Private Placement Fund III-A, L.P.
Essex Private Placement Fund III-B, L.P.
T. Rowe Price New Horizons Fund, Inc.
T. Rowe Price Health Sciences Fund, Inc.
Anvil Investment Associates, LP
Morgan Stanley Dean Witter Equity Funding, Inc.
Morgan Stanley Dean Witter Venture Partners IV, L.P.
Morgan Stanley Dean Witter Venture Investors IV, L.P.
Morgan Stanley Dean Witter Venture Offshore Investors IV, L.P.
RGIP, LLC
Peter Liley
Rolph and Lea Ann Reitzig
Steve Silverman
John Bierly
Jeff Blum
Doug Gaeth
<PAGE>
Bob Baker
Phil McCarthy
John Reitter
John A. Smith, M.D.
John Slattery, Sr.
Joseph Cannistraro
Dean Eliot
Abdul R. Piracha
John Willadsen
Alan Perry
Dr. Edward Wilk
Thomas J. DeRosa
Christina Takoudes Morrison
Stanley B. Blaylock
Brent B. Milner
David Steinberg
James P. Scopa
Michael H. Cohen
Greg Parekh
Dallas Miller
Dr. Patricia Rupnow
Richard T. Broglino
<PAGE>
Bausch & Lomb Incorporated
Paul Ashton
Thomas Smith
Vincent Manopoli
John Slattery, Jr.
Karen J. Boyd
