Unassociated Document


    


     

    Exhibit
      4.2

     

    Registration
      Rights Agreement

     

     

    by
      and among

     

     

    Cyberkinetics
      Neurotechnology Systems, Inc. 

     

     

    and

     

     

    NeuroMetrix,
      Inc. 

     

     

     

     

    Dated
      as of November 13, 2007

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    REGISTRATION
      RIGHTS AGREEMENT

     

    THIS
      REGISTRATION RIGHTS AGREEMENT ("Agreement")
      dated
      as of November 13, 2007 is made and entered into by and among CYBERKINETICS
      NEUROTECHNOLOGY SYSTEMS, INC., a Delaware corporation (together with its
      successors and assigns, the "Company")
      and
      NEUROMETRIX, INC., a Delaware corporation (the "Holder").

     

    Preliminary
      Statement

     

    This
      Agreement is made pursuant to that certain Joint Venture and Strategic
      Investment Agreement, dated of even date herewith, by and between the Company
      and the Holder (the "Investment
      Agreement").
      

     

    Agreement

     

    In
      consideration of the mutual covenants, promises and agreements set forth herein,
      and for other good and valuable consideration, the receipt and sufficiency
      of
      which is hereby acknowledged, the Company and the Holder hereby agree as
      follows:

     

    ARTICLE
      I.

     

    Definitions

     

    Except
      as
      otherwise specifically indicated, the following terms will have the following
      meanings for all purposes of this Agreement: 

     

    "Agreement"
      means
      this Registration Rights Agreement, as the same shall be amended from time
      to
      time.

     

    "Business
      Day"
      means a
      day other than Saturday, Sunday or any other day on which banks located in
      the
      State of New York are authorized or obligated to close.

     

    "Commission"
      means
      the United States Securities and Exchange Commission, or any successor
      governmental agency or authority. 

     

    "Common
      Stock"
      means
      shares of Common Stock, par value $0.001 per share, of the Company, as
      constituted on the date hereof, and any stock into which such Common Stock
      shall
      have been changed or any stock resulting from any reclassification of such
      Common Stock.

     

    "Company"
      has the
      meaning ascribed to it in the preamble. 

     

    “Demand
      Registration”
has
      the
      meaning set forth in Section
      2.01.
      

     

    "Excess
      Amount"
      means
      the number of Registrable Securities requested by the Holder to be sold pursuant
      to Section
      2.01
      which
      the Managing Underwriter determines exceeds the largest number of Registrable
      Securities which can successfully be sold in an orderly manner in such offering
      within a price range reasonably acceptable to the Company.

     

    "Exchange
      Act"
      means
      the Securities Exchange Act of 1934, as amended, and the rules and regulations
      promulgated thereunder. 

     

    
      
        
        

      

      
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    "Form
      S-4"
      means
      Form S-4 promulgated by the Commission under the Securities Act, or any
      successor or similar registration statement. 

     

    "Form
      S-8"
      means
      Form S-8 promulgated by the Commission under the Securities Act, or any
      successor or similar registration statement. 

     

    "Holder"
      has the
      meaning ascribed to it in the preamble. 

     

    "Indemnified
      Party"
      means a
      party entitled to indemnity in accordance with Section
      4.03.

     

    "Indemnifying
      Party"
      means a
      party obligated to provide indemnity in accordance with Section
      4.03.

     

    "Inspectors"
      has the
      meaning ascribed to it in Section
      3.01(h).
      

     

    "Investment
      Agreement"
      has the
      meaning ascribed to it in the Preliminary Statement. 

     

    "Managing
      Underwriter"
      means,
      with respect to any Public Offering, the underwriter or underwriters managing
      such Public Offering. 

     

    "Person"
      means
      any natural person, corporation, general partnership, limited partnership,
      limited liability company, proprietorship, other business organization, trust,
      union or association.

     

    "Piggyback
      Registration"
      has the
      meaning ascribed to it in Section
      2.02.

     

    "Public
      Offering"
      means
      any offering of Common Stock to the public, either on behalf of the Company
      or
      any of its securityholders, pursuant to an effective registration statement
      under the Securities Act.

     

    "Records"
      has the
      meaning ascribed to it in Section
      3.01(h).
      

     

    "Registrable
      Securities"
      means
      (a) the Shares acquired by the Holder pursuant to the Investment Agreement,
      including any Shares acquired upon exercise of the warrant purchased thereunder,
      and (b) any additional Shares issued or distributed to the Holder by way of
      a
      dividend, stock split, conversion, or other distribution in respect of Shares
      described in the foregoing clause (a) or acquired by way of any rights offering
      or similar offering made in respect of Shares described in the foregoing clause
      (a). As to any particular Registrable Securities, such securities shall cease
      to
      be Registrable Securities when (i) a registration statement with respect to
      the
      sale of such securities shall have become effective under the Securities Act
      and
      such Registrable Securities shall have been disposed of in accordance with
      such
      registration statement, (ii) they shall have been sold pursuant to Rule 144,
      or
      (iii) they shall have ceased to be outstanding. 

     

    “Registration
      Expenses”
has
      the
      meaning set forth in Section
      3.02.
      

     

    "Rule
      144"
      means
      Rule 144 promulgated by the Commission under the Securities Act, and any
      successor provision thereto.

     

    "Securities
      Act"
      means
      the Securities Act of 1933, as amended, and the rules and regulations
      promulgated thereunder.

     

    "Selling
      Holder"
      has the
      meaning set forth in Section
      3.01.
      

     

    
      
        
        

      

      
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    "Shares"
      means
      shares of Common Stock.

     

    “Withdrawal
      Election”
has
      the
      meaning set forth in Section
      3.02(b). 

     

    ARTICLE
      II.


     

    REGISTRATION
      RIGHTS

     

    Section
      2.01.  Demand
      Registration.
      

     

    (a)  Request
      for Registration.
      At any
      time after December 31, 2008, the Holder may make a written request for
      registration under the 1933 Act of all or part of their Registrable Securities
      (a "Demand
      Registration");
      provided that the Company shall not be obligated to effect more than two
      (2) Demand
      Registrations. Such request will specify the number of shares of Registrable
      Securities proposed to be sold and will also specify the intended method of
      disposition thereof. The Company shall not include any Registrable Securities
      which it wishes to offer for its own account in any Demand Registration without
      the prior written consent of the Holder.

     

    (b)  Effective
      Registration.
      A
      registration will not count as a Demand Registration until it has become
      effective.

     

    (c)  Underwritten
      Offering.
      If the
      Holder so elects, the offering of such Registrable Securities pursuant to such
      Demand Registration shall be in the form of an underwritten offering. The Holder
      shall select one or more nationally recognized firms of investment bankers,
      reasonably acceptable to the Company, to act as the Managing Underwriter in
      connection with such offering and shall select any additional managers to be
      used in connection with the offering.

     

    Section
      2.02.  Piggy-Back
      Registration.
      If at
      any time after December 31, 2008, the
      Company proposes to file a registration statement under the 1933 Act with
      respect to an offering by the Company for its own account or for the account
      of
      any holders of any Shares (other than a registration statement on Form S-4
      or
      S-8, or any substitute form that may be adopted by the Commission, a
      registration filed upon the demand of any of the Company's other securityholders
      (who have contractual demand registration rights prohibiting other shares from
      being added to such registration statement), or a registration statement filed
      in connection with an exchange offer or offering of securities solely to the
      Company's existing securityholders), then the Company shall give written notice
      of such proposed filing to the Holder as soon as practicable (but in no event
      less than ten (10) days before the anticipated filing date), and such notice
      shall offer the Holder the opportunity to register such number of shares of
      Registrable Securities as the Holder may request in writing within five (5)
      days
      of receipt of such notice on behalf of itself (which request shall specify
      the
      Registrable Securities intended to be disposed of by such Holder and the
      intended method of distribution thereof) (a "Piggy-Back
      Registration").
      The
      Company shall use reasonable best efforts to cause the Managing Underwriter
      of a
      proposed underwritten offering to permit the Registrable Securities requested
      to
      be included in a Piggy-Back Registration on the same terms and conditions as
      any
      similar securities of the Company or other securityholders of the Company are
      included therein to permit the sale or other disposition of such Registrable
      Securities in accordance with the intended method of distribution thereof.
      Subject to Section
      2.03(b),
      the
      Holder shall have the right to withdraw its request for inclusion of its
      Registrable Securities in any Piggy-Back Registration by giving written notice
      to the Company of its request to withdraw within twenty (20) days of its request
      for inclusion. 

     

    
      
        
        

      

      
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    To
      the
      extent the related registration statement was filed by the Company for its
      own
      account or filed for the account of any of the Company's securityholders (other
      than the Holder), the Company may withdraw a Piggy-Back Registration at any
      time
      prior to the time it becomes effective.

     

    Section
      2.03.  Reduction
      of Offering.
      

     

    (a)  Notwithstanding
      anything contained herein, if the Managing Underwriter of an offering described
      in Sections
      2.01
      or
2.02
      determines that the size of the offering that the Holder, the Company and/or
      such other Persons intend to make is such that the success of the offering
      would
      be materially adversely affected by inclusion of the number of Registrable
      Securities or other securities requested to be included, then (i) with respect
      to a Demand Registration, the Company shall include in such registration all
      of
      the Registrable Securities requested to be included in such offering by the
      Holder other than the Registrable Securities, if any, equal to the Excess Amount
      and (ii) in the case of a Piggyback Registration, the securities the Company
      seeks to include shall have priority over securities sought to be included
      by
      any other Person (including the Holder) and, if securities are being offered
      for
      the account of other Persons as well as the Company, with respect to the
      Registrable Securities intended to be offered by the Holder, the proportion
      by
      which the amount of such class of securities intended to be offered by the
      Holder is reduced shall not exceed the proportion by which the amount of such
      class of securities intended to be offered by such other Persons is reduced
      (it
      being understood that with respect to the Holder and third parties such
      reduction may be all of such class of securities).

     

    (b)  If,
      as a
      result of the proration provisions of Section
      2.03(a),
      the
      Holder shall not be entitled to include all Registrable Securities in a Demand
      Registration or Piggy-Back Registration that the Holder has requested to be
      included, the Holder may elect to withdraw its request to include Registrable
      Securities in such registration (a "Withdrawal
      Election");
      provided however, that a Withdrawal Election shall be irrevocable and, after
      making a Withdrawal Election, the Holder shall no longer have any right to
      include Registrable Securities in the registration as to which such Withdrawal
      Election was made.

     

    ARTICLE
      III.


     

    REGISTRATION
      PROCEDURES

     

    Section
      3.01.  Filings;
      Information.
      Whenever the Holder requests that any Registrable Securities be registered
      pursuant to Section
      2.01
      hereof
      (the "Selling
      Holder"),
      the
      Company will use its reasonable best efforts to effect the registration and
      the
      sale of such Registrable Securities in accordance with the intended method
      of
      disposition thereof as quickly as practicable, but only to the extent that
      registration is then available for the Holder on the applicable required form
      for registration promulgated by the Commission for such intended method of
      disposition, and in connection with any such request:

     

    (a)  The
      Company will as expeditiously as possible prepare and file with the Commission
      a
      registration statement on any form for which the Company then qualifies or
      which
      counsel for the Company shall deem appropriate and which form shall be available
      for the sale of the Registrable Securities to be registered thereunder in
      accordance with the intended method of distribution thereof, and use its
      reasonable best efforts to cause such filed registration statement to become
      and
      remain effective until the earlier of (i) 180 days from the date such
      registration statement became effective or (ii) the date on which the sale
      of
      Registrable Securities has been completed; provided that, if the Company shall
      furnish to the Selling Holder a certificate signed by either its Chairman or
      Chief Executive Officer stating that in his good faith judgment it would be
      significantly disadvantageous to the Company or its shareholders for such a
      registration statement to be filed as expeditiously as possible, the Company
      shall have a period of not more than 120 days within which to file such
      registration statement measured from the date of receipt of the request in
      accordance with Section
      2.01.

     

    
      
        
        

      

      
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    (b)  The
      Company will, prior to filing a registration statement or prospectus or any
      amendment or supplement thereto, furnish to the Selling Holder, one law firm
      representing the Selling Holder, and the Managing Underwriter, if any, of the
      Registrable Securities covered by such registration statement copies of such
      registration statement as proposed to be filed, together with exhibits thereto,
      which documents will be subject to prompt review and approval by the foregoing,
      and thereafter furnish to the Selling Holder, counsel and the Managing
      Underwriter, if any, such number of copies of such registration statement,
      each
      amendment and supplement thereto (in each case including all exhibits thereto
      and documents incorporated by reference therein), the prospectus included in
      such registration statement (including each preliminary prospectus) and such
      other documents as the Selling Holder, such law firm or the Managing Underwriter
      may reasonably request in order to facilitate the disposition of the Registrable
      Securities owned by the Selling Holder.

     

    (c)  After
      the
      filing of the registration statement, the Company will promptly notify the
      Selling Holder of Registrable Securities covered by such registration statement
      of any stop order issued or threatened by the Commission and take all reasonable
      actions required to prevent the entry of such stop order or to remove it if
      entered.

     

    (d)  The
      Company will use reasonable best efforts to (i) register or qualify the
      Registrable Securities under such other securities or blue sky laws of such
      jurisdictions in the United States as the Selling Holder reasonably (in light
      of
      the Selling Holder's intended plan of distribution) requests and (ii) cause
      such
      Registrable Securities to be registered with or approved by such other
      governmental agencies or authorities in the United States as may be necessary
      by
      virtue of the business and operations of the Company and do any and all other
      acts and things that may be reasonably necessary or advisable to enable the
      Selling Holder to consummate the disposition of the Registrable Securities
      owned
      by the Selling Holder; provided that the Company will not be required to (A)
      qualify generally to do business in any jurisdiction where it would not
      otherwise be required to qualify but for this paragraph (d), (B) subject itself
      to taxation in any such jurisdiction or (C) consent to general service of
      process in any such jurisdiction. 

     

    (e)  The
      Company will immediately notify the Selling Holder of such Registrable
      Securities, at any time when a prospectus relating thereto is required to be
      delivered under the 1933 Act, of the occurrence of an event requiring the
      preparation of a supplement or amendment to such prospectus so that, as
      thereafter delivered to the purchasers of such Registrable Securities, such
      prospectus will not contain an untrue statement of a material fact or omit
      to
      state any material fact required to be stated therein or necessary to make
      the
      statements therein not misleading and promptly make available to the Selling
      Holder any such supplement or amendment.

     

    (f)  The
      Company will enter into customary agreements (including, if applicable, an
      underwriting agreement in customary form) and take such other actions as are
      reasonably required in order to expedite or facilitate the disposition of such
      Registrable Securities, and the Selling Holder may, at its option, require
      that
      any or all of the representations, warranties and covenants of the Company
      to or
      for the benefit of the Managing Underwriters also be made to and for the benefit
      of the Selling Holder.

     

    (g)  The
      Chairman of the Board of Directors of the Company, the Chief Executive Officer
      of the Company and other members of the management of the Company will cooperate
      fully in any offering of Registrable Securities hereunder, including, without
      limitation, participation in meetings with potential investors and preparation
      of all materials for such investors.

     

    
      
        
        

      

      
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    (h)  The
      Company will deliver promptly to the Selling Holder of such Registrable
      Securities and the Managing Underwriter, if any, subject to restrictions imposed
      by the United States federal government or any agency or instrumentality thereof
      copies of all correspondence between the Commission and the Company, its counsel
      or auditors and all memoranda relating to discussions with the Commission or
      its
      staff with respect to the registration statement and make available for
      inspection by the Selling Holder of such Registrable Securities, the Managing
      Underwriter, if any, participating in any disposition pursuant to such
      registration statement and any attorney, accountant or other professional
      retained by the Selling Holder or the Managing Underwriter (collectively, the
      "Inspectors"),
      (it
      being understood that the Company is responsible for payment of the reasonable
      fees and expenses of only one law firm pursuant to clause (viii) of Section
      3.02)
      all
      financial and other records, pertinent corporate documents and properties of
      the
      Company (collectively, the "Records"),
      subject to restrictions imposed by any governmental authority governing access
      to classified information, as shall be reasonably necessary to enable them
      to
      exercise their due diligence responsibility, and cause the Company's officers,
      directors and employees to supply all information reasonably requested by any
      Inspectors in connection with such registration statement. Records which the
      Company determines, in good faith, to be confidential and which it notifies
      the
      Inspectors are confidential shall not be disclosed by the Inspectors unless
      (i)
      the disclosure of such Records is necessary to avoid or correct a misstatement
      or omission in such registration statement or (ii) the disclosure or release
      of
      such Records is requested or required pursuant to oral questions,
      interrogatories, requests for information or documents or a subpoena or other
      order from a court of competent jurisdiction or other process; provided that
      prior to any disclosure or release pursuant to clause (ii), the Inspectors
      shall
      provide the Company with prompt notice of any such request or requirement so
      that the Company may seek an appropriate protective order or waive such
      Inspectors' obligation not to disclose such Records; and provided, further,
      that
      if failing the entry of a protective order or the waiver by the Company
      permitting the disclosure or release of such Records, the Inspectors, upon
      advice of counsel, are compelled to disclose such Records, the Inspectors may
      disclose that portion of the Records which counsel has advised the Inspectors
      that the Inspectors are compelled to disclose. The Selling Holder agrees that
      information obtained by it solely as a result of such inspections (not including
      any information obtained from a third party who, insofar as is known to the
      Selling Holder after reasonable inquiry, is not prohibited from providing such
      information by a contractual, legal or fiduciary obligation to the Company)
      shall be deemed confidential and shall not be used by it as the basis for any
      market transactions in the securities of the Company or its Affiliates unless
      and until such is made generally available to the public. The Selling Holder
      of
      such Registrable Securities further agrees that it will, upon learning that
      disclosure of such Records is sought in a court of competent jurisdiction,
      give
      notice to the Company and allow the Company, at its expense, to undertake
      appropriate action to prevent disclosure of the Records deemed
      confidential.

     

    (i)  The
      Company will use its reasonable best efforts to furnish to the Selling Holder
      and to the Managing Underwriter, if any, a signed counterpart, addressed to
      the
      Selling Holder or the Managing Underwriter, of (i) an opinion or opinions of
      counsel to the Company and (ii) a comfort letter or comfort letters from the
      Company's independent public accountants, each in customary form and covering
      such matters of the type customarily covered by opinions or comfort letters,
      as
      the case may be, as the Selling Holder of Registrable Securities included in
      such offering or the Managing Underwriter therefor reasonably requests.


     

    (j)  The
      Company will otherwise use its reasonable best efforts to comply with all
      applicable rules and regulations of the Commission, and make available to its
      securityholders, as soon as reasonably practicable, an earnings statement
      covering a period of 12 months, beginning within three months after the
      effective date of the registration statement, which earnings statement shall
      satisfy the provisions of Section 11(a) of the 1933 Act.

     

    (k)  The
      Company will use its reasonable best efforts (a) to cause all such Registrable
      Securities to be listed on each national securities exchange on which similar
      securities issued by the Company are then listed (if any), if the listing of
      such Registrable Securities is then permitted under the rules of such exchange
      or (b) to secure designation of all such Registrable Securities covered by
      such
      registration statement as a NASDAQ "national market system security" within
      the
      meaning of Rule 11Aa2-1 of the Commission or, failing that, to secure NASDAQ
      authorization for such Registrable Securities and, without limiting the
      generality of the foregoing, to arrange for at least two market makers to
      register as such with respect to such Registrable Securities with the
      NASD.

     

    
      
        
        

      

      
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    (l)  The
      Company may require the Selling Holder of Registrable Securities to promptly
      furnish in writing to the Company such information regarding the distribution
      of
      the Registrable Securities as the Company may from time to time reasonably
      request and such other information as may be legally required in connection
      with
      such registration.

     

    The
      Selling Holder agrees that, upon receipt of any notice from the Company of
      the
      happening of any event of the kind described in Section
      3.01(e)
      hereof,
      the Selling Holder will forthwith discontinue and cause its Affiliates to
      discontinue disposition of Registrable Securities pursuant to the registration
      statement covering such Registrable Securities until the Selling Holder's
      receipt of the copies of the supplemented or amended prospectus contemplated
      by
Section
      3.01(e)
      hereof
      and, if so directed by the Company, the Selling Holder will deliver to the
      Company all copies, other than permanent file copies then in the Selling
      Holder's possession, of the most recent prospectus covering such Registrable
      Securities at the time of receipt of such notice. In the event the Company
      shall
      give such notice, the Company shall extend the period during which such
      registration statement shall be maintained effective (including the period
      referred to in Section
      3.01(a)
      hereof)
      by the number of days during the period from and including the date of the
      giving of notice pursuant to Section
      3.01(e)
      hereof
      to the date when the Company shall make available to the Selling Holder of
      Registrable Securities covered by such registration statement a prospectus
      supplemented or amended to conform with the requirements of Section
      3.01(e)
      hereof.

     

    Section
      3.02.  Registration
      Expenses.
      In
      connection with any Demand Registration pursuant to Section
      2.01
      hereof,
      and any registration statement filed pursuant to Section
      2.02
      hereof,
      the Company shall pay the following registration expenses incurred in connection
      with the registration hereunder, whether or not such registration becomes
      effective (collectively, the "Registration
      Expenses"):
      (i)
      all registration and filing fees, (ii) fees and expenses of compliance with
      securities or blue sky laws (including fees and disbursements of counsel in
      connection with blue sky qualifications of the Registrable Securities), (iii)
      printing expenses, (iv) the Company's internal expenses (including, without
      limitation, all salaries and expenses of its officers and employees performing
      legal or accounting duties), (v) the fees and expenses incurred in connection
      with any listing of the Registrable Securities, (vi) fees and disbursements
      of
      counsel for the Company and fees and expenses for independent certified public
      accountants retained by the Company (including the expenses of any comfort
      letters or costs associated with the delivery by independent certified public
      accountants of a comfort letter or comfort letters requested pursuant to
Section
      3.01(i)
      hereof),
      (vii) the fees and expenses of any special experts retained by the Company
      in
      connection with such registration, and (viii) reasonable fees and expenses
      of
      one law firm (who shall be reasonably acceptable to the Company) for the Selling
      Holder. The Company shall have no obligation to pay any underwriting fees,
      discounts or commissions attributable to the sale of Registrable Securities,
      or
      any out-of- pocket expenses of the Holder.

     

    ARTICLE
      IV.


     

    INDEMNIFICATION

     

    Section
      4.01.  Indemnification
      by the Company.
      The
      Company agrees to indemnify and hold harmless the Selling Holder, its officers,
      directors and agents, and each Person, if any, who controls the Selling Holder
      within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
      Act
      from and against any loss, claim, damage or liability and any action in respect
      thereof to which the Selling Holder, its officers, directors and agents, and
      any
      such controlling Person may become subject under the 1933 Act or otherwise,
      insofar as such loss, claim, damage, liability or action arises out of, or
      is
      based upon, any untrue statement or alleged untrue statement of a material
      fact
      contained in any registration statement or prospectus relating to the
      Registrable Securities (as amended or supplemented if the Company shall have
      furnished any amendments or supplements thereto) or any preliminary prospectus,
      or arises out of, or is 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 not misleading, and shall reimburse the Selling Holder,
      its
      officers, directors and agents, and each such controlling Person for any legal
      and other expenses reasonably incurred by the Selling Holder, its officers,
      directors and agents, or any such controlling Person in investigating or
      defending or preparing to defend against any such loss, claim, damage, liability
      or action. The Company also agrees to indemnify the Managing Underwriter of
      the
      Registrable Securities, their officers and directors and each Person who
      controls the Managing Underwriter on substantially the same basis as that of
      the
      indemnification of the Selling Holder provided in this Section
      4.01;
      provided, that the indemnity agreement contained in this Section
      4.01
      shall
      not apply to amounts paid in settlement of any such loss, claim, damage or
      liability and any action in respect thereof if such settlement is effected
      without the consent of the Company (which consent shall not be unreasonably
      withheld), nor shall the Company be liable in any such case for any loss, claim
      damage, liability and any action in respect thereof to the extent that it arises
      from or is based upon written information relating to a Person furnished
      expressly for use in connection with such registration by such Person, nor
      shall
      the Company be liable to any Person for any such loss, claim, damage or
      liability and any action in respect thereof to the extent it arises from or
      is
      based upon (i) any untrue statement or alleged untrue statement of a material
      fact contained in any registration statement or prospectus relating to the
      Registrable Securities delivered by such Person after the Company had provided
      written notice to such Person that such registration statement or prospectus
      contained such untrue statement or alleged untrue statement of a material fact,
      (ii) any omission or alleged omission to state therein a material fact required
      to be stated therein or necessary to make the statements therein not misleading
      after the Company had provided written notice to such Person that such
      registration statement or prospectus contained such omission or alleged
      omission, or (iii) the failure of such Person to deliver any preliminary or
      final prospectus, or any amendments or supplements thereto, required under
      applicable securities laws, including the 1933 Act, to be so delivered, provided
      that a sufficient number of copies thereof had been provided by the Company
      to
      such Person.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    Section
      4.02.  Indemnification
      by the Holder of Registrable Securities.
      The
      Selling Holder agrees to indemnify and hold harmless the Company, its officers,
      directors and agents and each Person, if any, who controls the Company within
      the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to
      the
      same extent as the foregoing indemnity from the Company to the Selling Holder,
      but only with reference to information related to the Selling Holder furnished
      in writing by the Selling Holder or on the Selling Holder's behalf expressly
      for
      use in any registration statement or prospectus relating to the Registrable
      Securities, or any amendment or supplement thereto, or any preliminary
      prospectus. The Selling Holder also agrees to indemnify and hold harmless the
      Managing Underwriter of the Registrable Securities, their officers and directors
      and each Person who controls the Managing Underwriter on substantially the
      same
      basis as that of the indemnification of the Company provided in this Section;
      provided that in no event shall any indemnity obligation under this Section
      exceed the net proceeds from the offering received by the Selling
      Holder.

     

    Section
      4.03.  Conduct
      of Indemnification Proceedings.
      Promptly after receipt by any person in respect of which indemnity may be sought
      pursuant to Sections
      4.01
      or
4.02
      (an
      "Indemnified
      Party")
      of
      notice of any claim or the commencement of any action, the Indemnified Party
      shall, if a claim in respect thereof is to be made against the person against
      whom such indemnity may be sought (an "Indemnifying
      Party"),
      notify the Indemnifying Party in writing of the claim or the commencement of
      such action; provided that the failure to notify the Indemnifying Party shall
      not relieve it from any liability which it may have to an Indemnified Party
      otherwise than under Sections
      4.01
      or
4.02
      and
      except to the extent of any actual prejudice resulting therefrom. If any such
      claim or action shall be brought against an Indemnified Party, and it shall
      notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled
      to participate therein, and, to the extent that it wishes, jointly with any
      other similarly notified Indemnifying Party, to assume the defense thereof
      with
      counsel reasonably satisfactory to the Indemnified Party. After notice from
      the
      Indemnifying Party to the Indemnified Party of its election to assume the
      defense of such claim or action, the Indemnifying Party shall not be liable
      to
      the Indemnified Party for any legal or other expenses subsequently incurred
      by
      the Indemnified Party in connection with the defense thereof other than
      reasonable costs of investigation; provided that the Indemnified Party shall
      have the right to employ separate counsel to represent the Indemnified Party
      and
      its controlling Persons who may be subject to liability arising out of any
      claim
      in respect of which indemnity may be sought by the Indemnified Party against
      the
      Indemnifying Party, but the fees and expenses of such counsel shall be for
      the
      account of such Indemnified Party unless (i) the Indemnifying Party and the
      Indemnified Party shall have mutually agreed to the retention of such counsel
      or
      (ii) based upon the written opinion of counsel of such Indemnified Party
      representation of both parties by the same counsel would be inappropriate due
      to
      actual or potential differing interests between them. No Indemnifying Party
      shall, without the prior written consent of the Indemnified Party, effect any
      settlement of any claim or pending or threatened proceeding in respect of which
      the Indemnified Party is a party and indemnity could have been sought hereunder
      by such Indemnified Party, unless such settlement includes an unconditional
      release of such Indemnified Party from all liability arising out of such claim
      or proceeding.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    Section
      4.04.  Contribution.
      If the
      indemnification provided for in this Article 4 is unavailable to the Indemnified
      Parties in respect of any losses, claims, damages or liabilities referred to
      herein, then each such Indemnifying Party, in lieu of indemnifying such
      Indemnified Party, shall contribute to the amount paid or payable by such
      Indemnified Party as a result of such losses, claims, damages or liabilities
      (i)
      as between the (Company and the Selling Holder, on the one hand, and the
      Managing Underwriter, on the other, in such proportion as is appropriate to
      reflect the relative benefits received by the Company and the Selling Holder,
      on
      the one hand, and the Managing Underwriter, on the other, from the offering
      of
      the Registrable Securities, or if such allocation is not permitted by applicable
      law, in such proportion as is appropriate to reflect not only the relative
      benefits but also the relative fault of the Company and the Selling Holder,
      on
      the one hand, and of the Managing Underwriter, on the other, in connection
      with
      the statements or omissions which resulted in such losses, claims, damages
      or
      liabilities, as well as any other relevant equitable considerations and (ii)
      as
      between the Company, on the one hand, and the Selling Holder, on the other,
      in
      such proportion as is appropriate to reflect the relative fault of the Company
      and of the Selling Holder in connection with such statements or omissions,
      as
      well as any other relevant equitable considerations. The relative benefits
      received by the Company and, the Selling Holder, on the one hand, and the
      Managing Underwriter, on the other, shall be deemed to be in the same proportion
      as the total proceeds from the offering (net of underwriting discounts and
      commissions but before deducting expenses) received by the Company and the
      Selling Holder bears to the total underwriting discounts and commissions
      received by the Managing Underwriter, in each case as set forth in the table
      on
      the cover page of the prospectus. The relative fault of the Company and the
      Selling Holder, on the one hand, and of the Managing Underwriter, on the other,
      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 Company and
      the
      Selling Holder or by the Managing Underwriter. The relative fault of the
      Company, on the one hand, and of the Selling Holder, on the other, 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 such party, and the parties'
      relative intent, knowledge, access-to information and opportunity to correct
      or
      prevent such statement or omission.

     

    The
      Company and the Selling Holder agree that it would not be just and equitable
      if
      contribution pursuant to this Section were determined by pro rata allocation
      or
      by any other method of allocation which does not take account of the equitable
      considerations referred to in the immediately preceding paragraph. The amount
      paid or payable by an Indemnified Party as a result of the losses, claims,
      damages or liabilities referred to in the immediately preceding paragraph shall
      be deemed to include, subject to the limitations set forth above, any legal
      or
      other expenses reasonably incurred by such Indemnified Party in connection
      with
      investigating or defending any such action or claim. Notwithstanding the
      provisions of this, the Managing Underwriter shall not be required to contribute
      any amount in excess of the amount by which the total price at which the
      Registrable Securities underwritten by it and distributed to the public were
      offered to the public exceeds the amount of any damages which the Managing
      Underwriter has otherwise been required to pay by reason of such untrue or
      alleged untrue statement or omission or alleged omission, and the Selling Holder
      shall not be required to contribute any amount in excess of the amount by which
      the total price at which the Registrable Securities of the Selling Holder were
      offered to the public (less underwriting discounts and commissions) exceeds
      the
      amount of any damages which the Selling Holder has otherwise been required
      to
      pay 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 1l(f) of the 1933 Act) shall be entitled to contribution from any
      person who was not guilty of such fraudulent misrepresentation. 

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      V.


     

    MISCELLANEOUS.

     

    Section
      5.01.  Participation
      in Underwritten Registrations.
      No
      Person may participate in any underwritten registration hereunder unless such
      Person (a) agrees to sell such Person's securities on the basis provided in
      any
      underwriting arrangements approved by the Persons entitled hereunder to approve
      such arrangements and (b) completes and executes all questionnaires, powers
      of
      attorney, indemnities, underwriting agreements and other documents reasonably
      required under the terms of such underwriting arrangements and this
      Agreement.

     

    Section
      5.02.  Rule
      144.
      The
      Company covenants that it will use its reasonable best efforts to file any
      reports required to be filed by it under the 1933 Act and the 1934 Act and
      that
      it will take such further action as the Holder may reasonably request, all
      to
      the extent reasonably required from time to time to enable the Holder to sell
      Registrable Securities without registration under the 1933 Act within the
      limitation of the exemptions provided by (a) Rule 144 or Rule 144A under the
      1933 Act, as such Rules may be amended from time to time, or (b) any similar
      rule or regulation hereafter adopted by the Commission. Upon the request of
      the
      Holder, the Company will deliver to the Holder a written statement as to whether
      it has complied with such requirements.

     

    Section
      5.03.  Notices.
      All
      notices, requests and other communications hereunder must be in writing and
      will
      be deemed to have been duly given only if delivered personally or by facsimile
      transmission or mailed (registered or certified mail, postage prepaid) to the
      parties at the following addresses or facsimile numbers: 

     

    If
      to the
      Holder, to: 

     

    NeuroMetrix,
      Inc. 

    62
      Fourth
      Avenue

    Waltham,
      MA 02451

    Attn:
      Chief Financial Officer

    Telephone
      No.: (781)
      890-9989

    Facsimile
      No.: (781)
      890-1556

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    
 

    With
      a
      copy to: 

    


    Goodwin
      Procter LLP

    Exchange
      Place

    Boston,
      MA 02109

    Telephone
      No.: (617) 570-1000

    Facsimile
      No.: (617) 523-1231

    Attn:
      H.
      David Henken and Daniel P. Adams

    


    If
      to the
      Company, to:

     

    Cyberkinetics
      Neurotechnology Systems, Inc. 

    100
      Foxborough Blvd.

    Foxborough,
      MA 02035

    Attn:
      Chief Financial Officer

    Telephone
      No.: 508-549-9981 Ext. 21

    Facsimile
      No.: 508-549-9985

    


    With
      a
      copy to: 

    


    Ice
      Miller LLP

    One
      American Square

    Suite
      3100

    Indianapolis,
      IN 46282-0200

    Telephone
      No.: (317) 236-2405

    Facsimile
      No.: (317) 236-2219

    Attn:
      John R. Thornburgh and Kristine C. Danz

     

    With
      respect to any other holder of Registrable Securities, such notices, requests
      and other communications shall be sent to the addresses set forth in the stock
      transfer records regularly maintained by the Company. All such notices, requests
      and other communications will (a) if delivered personally to the address as
      provided in this Section 5.03, be deemed given upon delivery, (b) if delivered
      by facsimile transmission to the facsimile number as provided in this Section,
      be deemed given when sent by confirmed facsimile if sent during normal business
      hours of the recipient, if not, then on the next Business Day, and (c) if
      delivered by mail in the manner described above to the address as provided
      in
      this Section, be deemed given five days after deposit with the United States
      Post Office (in each case regardless of whether such notice, request or other
      communication is received by any other Person to whom a copy of such notice
      is
      to be delivered pursuant to this Section). Any party from time to time may
      change its address, facsimile number or other information for the purpose of
      notices to that party by giving notice specifying such change to the other
      parties hereto.

     

    Section
      5.04.  Entire
      Agreement.
      This
      Agreement supersedes all prior discussions and agreements between the parties
      with respect to the subject matter hereof, and contains the sole and entire
      agreement between the parties hereto with respect to the subject matter
      hereof. 

     

    Section
      5.05.  Amendment.
      This
      Agreement may be amended, supplemented or modified only by a written instrument
      (which may be executed in any number of counterparts) duly executed by or on
      behalf of each of the Company and the Holder.

     

    Section
      5.06.  Waiver.
      Subject
      to Section 5.07, any term or condition of this Agreement may be waived at any
      time by the party that is entitled to the benefit thereof, but no such waiver
      shall be effective unless set forth in a written instrument duly executed by
      or
      on behalf of the party waiving such term or condition. No waiver by any party
      of
      any term or condition of this Agreement, in any one or more instances, shall
      be
      deemed to be or construed as a waiver of the same term or condition of this
      Agreement on any future occasion.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    Section
      5.07.  Consents
      and Waivers by Holders of Registrable Securities.
      Any
      consent of the Holder pursuant to this Agreement, and any waiver by the Holder
      of any provision of this Agreement, shall be in writing and may be given or
      taken by the Holder. 

     

    Section
      5.08.  No
      Third Party Beneficiary.
      It is
      not the intention of the parties to confer third-party beneficiary rights upon
      any other Person other than any Person entitled to indemnity under Article
      IV.

     

    Section
      5.09.  Successors
      and Assigns.
      This
      Agreement is binding upon, and inures to the benefit of the parties hereto
      and
      their respective successors and assigns (including any assignee or transferee
      of
      at least 25% of the Registrable Securities then owned by NURO). The Company
      shall not assign its rights under this Agreement without the prior written
      consent of the Holder, which consent shall not be unreasonably withheld,
      conditioned or delayed; provided, further, that nothing
      herein shall be deemed to permit any assignment, transfer or other disposition
      of Registrable Securities in violation of the terms hereof, the Securities
      Act
      or any securities or blue sky laws of any jurisdiction. 

     

    Section
      5.10.  Headings.
      The
      headings used in this Agreement have been inserted for convenience of reference
      only and do not define or limit the provisions hereof.

     

    Section
      5.11.  Invalid
      Provisions.
      If any
      provision of this Agreement is held to be illegal, invalid or unenforceable
      under any present or future law, and if the rights or obligations of any party
      hereto under this Agreement will not be materially and adversely affected
      thereby, (a) such provision will be fully severable, (b) this Agreement will
      be
      construed and enforced as if such illegal, invalid or unenforceable provision
      had never comprised a part hereof and (c) the remaining provisions of this
      Agreement will remain in full force and effect and will not be affected by
      the
      illegal, invalid or unenforceable provision or by its severance
      herefrom.

     

    Section
      5.12.  Remedies.
      Except
      as otherwise expressly provided for herein, no remedy conferred by any of the
      specific provisions of this Agreement is intended to be exclusive of any other
      remedy, and each and every remedy shall be cumulative and shall be in addition
      to every other remedy given hereunder or now or hereafter existing at law or
      in
      equity or by statute or otherwise. The election of any one or more remedies
      by
      any party hereto shall not constitute a waiver by any such party of the right
      to
      pursue any other available remedies. 

     

    Damages
      in the event of breach of this Agreement by a party hereto would be difficult,
      if not impossible, to ascertain, and it is therefore agreed that each party,
      in
      addition to and without limiting any other remedy or right it may have, will
      have the right to an injunction or other equitable relief in any court of
      competent jurisdiction, enjoining any such breach, and enforcing specifically
      the terms and provisions hereof and the Company and the Holder hereby waive
      any
      and all defenses it may have on the ground of lack of jurisdiction or competence
      of the court to grant such an injunction or other equitable relief. The
      existence of this right will not preclude the Company or Holder from pursuing
      any other rights and remedies at law or in equity which such party may
      have.

     

    Section
      5.13.  Governing
      Law.
      THIS
      AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
      THE
      COMMONWEALTH OF MASSACHUSETTS.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    Section
      5.14.  Counterparts.
      This
      Agreement may be executed in counterparts, each of which will be deemed an
      original, but both of which together will constitute one and the same
      instrument.

     

    [Signatures
      on next page.]

    


    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
      duly
      authorized officer of each party hereto as of the date first above
      written.

     

     

    
      	 	 	 
	 	CYBERKINETICS
              NEUROTECHNOLOGY SYSTEMS, INC.
	 
 	 
 	 
 
	 	By:  	/s/ Timothy
              R. Surgenor
	 	
              
Timothy
              R. Surgenor, President and
              CEO


    

     

     

    
      	 	 	 
	 	NEUROMETRIX,
              INC.
	 
 	 
 	 
 
	 	By:  	/s/ Shai
              N.
              Gozani
	 	
              
Shai
              N. Gozani, President and
              CEO


    

     

    
      
        
        

      

      
        15