REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of April 1, 1998, among NBTY,
INC., a Delaware corporation (the "Corporation"), and the INVESTORS (as
hereinafter defined).
The Investors own or have the right to purchase or otherwise acquire
shares of the Common Stock (as hereinafter defined) of the Corporation. The
Corporation and the Investors deem it to be in their respective best interests
to set forth the rights of the Investors in connection with public offerings
and sales of the Common Stock and are entering into this Agreement as a
condition to and in connection with the Agreement and Plan of Merger (as
hereinafter defined).
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Corporation and the Investors hereby
agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Agreement and Plan of Merger" means the Agreement and Plan of
Merger, dated as of April 1, 1998, among the Corporation, the Investors and the
other parties thereto, as the same may be amended from time to time.
(b) "Commission" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
(c) "Common Stock" means the common stock, $0.008 par value per share,
of the Corporation.
(d) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
(e) "Investors" means each of XXXXXXX X. XXXXX, XXXXXXX XXXXXXX TRUST
F/B/O XXXX XXXXX U/A 1/21/91 and XXXXXXX XXXXXXX TRUST F/B/O E. XXXXXX XXXXXX
U/A 1/21/91 and each additional person who shall execute a counterpart
signature page hereto, and includes any successor to, or assignee or transferee
of, any such person who or which agrees in writing to be treated as an Investor
hereunder and to be bound by the terms and comply with all applicable
provisions hereof.
(f) "Other Shares" means at any time securities (as defined by the
Securities Act) of the Corporation or any of its subsidiaries which do not
constitute Primary Shares or Registrable Shares.
(g) "Primary Shares" means at any time the authorized but unissued
shares of Common Stock and shares of Common Stock held by the Corporation in
its treasury.
(h) "Registrable Shares" means Restricted Shares which constitute
Common Stock or any security or right into which such Common Stock is or may be
converted or exchanged into, whether or not such right to convert or exchange
is contingent upon the payment of money or any other event.
(i) "Restricted Shares" means shares of Common Stock held by the
Investors. As to any particular Restricted Shares, such Restricted Shares shall
cease to be Restricted Shares when: (i) such shares have been registered under
the Securities Act and the registration statement in connection therewith has
been declared effective; or (ii) such shares shall have ceased to be issued and
outstanding.
(j) "Rule 144" means Rule 144 promulgated under the Securities Act or
any successor rule thereto or any complementary rule thereto (such as Rule
144A).
(k) "Securities Act" means the Securities Act of 1933, as amended, or
any successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
SECTION 2. Required Registration. From and after the date hereof, if
the Corporation shall be requested by any Investor to effect the registration
under the Securities Act of Registrable Shares, the Corporation shall promptly
effect the registration under the Securities Act of the Registrable Shares
which the Corporation has been so requested to register; provided, however,
that the Corporation shall not be obligated to effect any registration under
the Securities Act except in accordance with the following provisions:
(a) the Corporation shall not be obligated to file and cause to become
effective more than three (3) registration statements initiated pursuant to
this Section 2 if under such registration statements all of the Registrable
Shares requested to be included therein have been effectively distributed and
sold thereunder;
(b) subject to Section 2(d) below, the Corporation may delay the filing
or effectiveness of any registration statement for a period of up to 60 days
after the date of a request for registration pursuant to this Section 2 if at
the time of such request (i) the Corporation is engaged, or has fixed plans to
engage within 60 days of the time of such request, in a firm commitment
underwritten public offering of Primary Shares in which the holders of
Registrable Shares shall include the Registrable Shares that the Investors
requested to be so registered pursuant to Section 3 below, or (ii) the
Corporation reasonably determines that such registration and offering would
interfere with any material transaction that requires disclosure under the
Securities Act involving the Corporation, as approved by the Board of
Directors; provided, that the Corporation may only so delay the filing or
effectiveness of a registration statement once pursuant to clause (i) above and
once pursuant to clause (ii) above; and
(c) with respect to any registration pursuant to this Section 2, the
Corporation shall give notice of such registration to the Investors who do not
request registration hereunder and to the holders of all Registrable Shares and
Other Shares which are entitled to registration rights and the Corporation may
include in such registration any Primary Shares, Registrable Shares or Other
Shares; provided, however, that, subject to Section 2(d) hereof, with respect
to any registration statement, if the managing underwriter advises the
Corporation in writing that the inclusion of all Registrable Shares, Primary
Shares and/or Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of the Registrable
Shares proposed to be included in such registration, then the number of
Registrable Shares, Primary Shares and/or Other Shares proposed to be included
in such registration shall be included in the following order:
(i) first, the Registrable Shares of the Investors requested to
be included in such registration (or, if necessary, such Registrable
Shares pro rata among the Investors thereof based upon the number of
Registrable Shares requested to be registered by each such Investor);
(ii) second, the Primary Shares and the other Registrable Shares
held by stockholders other than the Investors which are requested to be
included in such registration (or, if necessary, such securities pro rata
among the Corporation and the holders thereof based upon the estimated
initial offering price of such securities proposed to be included in such
registration statement); and
(iii) third, the Other Shares which are entitled to registration
rights.
(d) Notwithstanding any provision of this Section 2 to the contrary,
with respect to the first registration statement initiated pursuant to this
Section 2, unless otherwise agreed by the Investors holding a majority of the
Registrable Shares requested to be included in such registration statement, all
of such Registrable Shares of the Investors requested to be included in such
registration statement shall be so included in such registration statement. The
Corporation hereby agrees that, with respect to the first registration
statement initiated pursuant to this Section 2, the Corporation shall use its
best efforts to successfully market (including pricing) and distribute such
Registrable Shares of the Investors within 45 days after the date of a request
for registration pursuant to this Section 2.
(e) If the method of disposition requested by the holders, pursuant to
this Section 2, is a firm commitment underwritten public offering, the
Corporation shall have the right to designate the managing underwriter of such
offering, which underwriter shall be (i) a top 15 investment bank as rated by
Securities Data Corp. at the time of such designation and (ii) acceptable to
the holders of the Registration Shares holding a majority of such securities,
it being acknowledged and agreed that the investment banks listed on Schedule A
or their successors shall be acceptable to the Investors.
(f) At any time before the registration statement covering Registrable
Shares becomes effective, the Investors holding a majority of such securities
may request the Corporation to withdraw, amend or not to file the registration
statement with respect to the proposed sale of the Investor's Registrable
Shares. In that event, if such request of withdrawal or amendment shall not
have been caused by, or made in response to, the material adverse effect of an
event on the business, properties, condition, financial or otherwise, or
operations of the Corporation, the Investors shall have used one of their
demand registration rights under this Section 2 and the Corporation shall no
longer be obligated to register Registrable Shares pursuant to the exercise of
such one registration right pursuant to this Section 2 unless either (x) such
Registration Statement includes Other Shares not held by the Investors or
Primary Shares or (y) the remaining Investors shall pay to the Corporation the
expenses incurred by the Corporation through the date of such request.
SECTION 3. Piggyback Registration. If the Corporation or any of its
subsidiaries at any time proposes for any reason to register Primary Shares,
Registrable Shares held by stockholders other than the Investors or Other
Shares under the Securities Act, it shall promptly give written notice to the
Investors of its intention to so register such Primary Shares, Registrable
Shares or Other Shares and, upon the written request, delivered to the
Corporation within 30 days after delivery of any such notice by the
Corporation, of the Investors to include in such registration their Registrable
Shares (which request shall specify the number of Registrable Shares proposed
to be included in such registration), the Corporation shall cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the Common Stock included in such registration, if such
securities are included; provided, however, that, subject to Section 3(c)
hereof, if the managing underwriter advises the Corporation in writing that the
inclusion of all Registrable Shares requested to be included in such
registration would interfere with the successful marketing (including pricing)
of the Primary Shares, Registrable Shares or Other Shares proposed to be
registered, then the number of Primary Shares, Registrable Shares and Other
Shares proposed to be included in such registration shall be included in the
following order:
(a) if the Corporation proposes to register Primary Shares:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares (or, if necessary, such
Registrable Shares pro rata among the holders thereof based upon the
number of Registrable Shares requested to be registered by each such
holder; and
(iii) third, the Other Shares requested to be included in such
registration (or, if necessary, such Other Shares pro rata among the
holders thereof based upon the estimated initial offering price of the
Other Shares requested to be registered by each such holder); or
(b) if the Corporation does not propose to register Primary Shares:
(i) first, the Registrable Shares and the Other Shares held by
the parties demanding such registration (or, if necessary, first the
Other Shares and then the Registrable Shares, in each case, pro rata
among the Corporation and the holders thereof based on the estimated
initial offering price of such securities requested to be registered by
the Corporation and each such holder); and
(ii) second, the Registrable Shares and Other Shares (other than
shares registered pursuant to Section 3(b)(i) hereof) requested to be
registered by the holders thereof (or, if necessary, first the Other
Shares and then the Registrable Shares, in each case, pro rata among the
Corporation and the holders thereof based on the number of Registrable
Shares and Other Shares requested to be registered by the Corporation and
such holders); and
(c) Notwithstanding any provision of this Section 3 to the contrary,
with respect to the first registration statement which includes the Registrable
Shares of the Investors (whether such first registration statement is the
result of a request or demand by the Investors under Section 2 or Section 3),
all of the Registrable Shares of the Investors which have been requested or
demanded to be included in the such registration statement shall be included in
such registration statement. The Corporation hereby agrees that, with respect
to the first registration statement including Registrable Shares of the
Investors, the Corporation shall use its best efforts to successfully market
(including pricing) and distribute such Registrable Shares within 90 days after
the Investors delivered the notice by the Investors requesting that Registrable
Shares be included in a registration statement.
SECTION 4. Registrations on Form S-3. Anything contained in Section 2
to the contrary notwithstanding, the Investors shall have the right to request
in writing one registration per twelve month period on Form S-3 or any
successor form of Registrable Shares, which request or requests shall (i)
specify the number of Registrable Shares intended to be sold or disposed of and
the holders thereof and (ii) state the intended method of disposition of such
Registrable Shares which method may include a delayed or continuous offering. A
requested registration on Form S-3 or any such successor form in compliance
with this Section 4 shall count as a registration statement initiated pursuant
to Section 2 and shall otherwise be treated as a registration initiated
pursuant to, and shall, except as otherwise expressly provided in this Section
4, be subject to Section 2.
SECTION 5. Preparation and Filing. If and whenever the Corporation is
under an obligation pursuant to the provisions of this Agreement to effect the
registration of any Registrable Shares, the Corporation shall, as expeditiously
as practicable:
(a) cause a registration statement that registers such Registrable
Shares to become and remain effective until all of such Registrable Shares have
been distributed;
(b) furnish, at least five business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating thereto
or any amendments or supplements relating to such a registration statement or
prospectus, to one counsel selected by the Investors (the "Investors'
Counsel"), copies of all such documents proposed to be filed (it being
understood that such five-business-day period need not apply to successive
drafts of the same document proposed to be filed so long as such successive
drafts are supplied to the Investors' Counsel in advance of the proposed filing
by a period of time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective until all of such Registrable Shares have been distributed and to
comply with the provisions of the Securities Act with respect to the sale or
other disposition of such Registrable Shares;
(d) notify in writing the Investors' Counsel promptly (i) of the
receipt by the Corporation of any notification with respect to any comments by
the Commission with respect to such registration statement or prospectus or any
amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) of the receipt by the Corporation of any notification with
respect to the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or prospectus or any amendment or
supplement thereto or the initiation or threatening of any proceeding for that
purpose and (iii) of the receipt by the Corporation of any notification with
respect to the suspension of the qualification of such Registrable Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purposes;
(e) register or qualify such Registrable Shares under such other
securities or blue sky laws of such jurisdictions as the Investors reasonably
request and do any and all other acts and things which may be reasonably
necessary or advisable to enable the Investors to consummate the disposition in
such jurisdictions of the Registrable Shares owned by the Investors; provided,
however , that the Corporation will not be required to qualify generally to do
business, subject itself to general taxation or consent to general service of
process in any jurisdiction where it would not otherwise be required to do so
but for this paragraph (e) or to provide any material undertaking or make any
changes in its By-laws or Certificate of Incorporation which the Board of
Directors determines to be contrary to the best interests of the Corporation;
(f) furnish to the Investors holding such Registrable Shares such
number of copies of a summary prospectus, if any, or other prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Investors may reasonably
request in order to facilitate the public sale or other disposition of such
Registrable Shares;
(g) cause such Registrable Shares to be registered with or approved by
such other governmental agencies or authorities as may be necessary by virtue
of the business and operations of the Corporation to enable the Investors
holding such Registrable Shares to consummate the disposition of such
Registrable Shares;
(h) notify the Investors holding such Registrable Shares on a timely
basis at any time when a prospectus relating to such Registrable Shares is
required to be delivered under the Securities Act within the appropriate period
mentioned in subparagraph (a) of this Section 5, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing
and, at the request of the Investors, prepare and furnish to such Investors a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the offerees
of such shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(i) make available upon reasonable notice and during normal business
hours, for inspection by the Investors holding such Registrable Shares, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by the Investors
or underwriter (collectively, the "Inspectors"), all pertinent financial and
other records, pertinent corporate documents and properties of the Corporation
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Corporation's
officers, directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any such Inspector in
connection with such registration statement. Any of the Information which the
Corporation determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary to avoid
or correct a misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (iii) such Information has been made
generally available to the public through no breach or default of any third
party with an obligation of confidentiality to the Corporation;
(j) obtain from its independent certified public accountants "cold
comfort" letters in customary form and at customary times and covering matters
of the type customarily covered by cold comfort letters;
(k) obtain from its counsel an opinion or opinions in customary form;
(l) continue to provide a nationally recognized transfer agent and
nationally recognized registrar for such Registrable Shares;
(m) issue to any underwriter to which the Investors holding such
Registrable Shares may sell shares in such offering certificates evidencing
such Registrable Shares;
(n) list such Registrable Shares on any national securities exchange on
which any shares of the Common Stock are listed or, if the Common Stock is not
listed on a national securities exchange, qualify such Registrable Shares for
inclusion on the automated quotation system of the National Association of
Securities Dealers, Inc. (the "NASD"), or such other national securities
exchange as the holders of a majority of such Registrable Shares shall
reasonably request;
(o) comply with all applicable rules and regulations of the Commission
and make available to its securityholders, as soon as reasonably practicable,
audited earnings statements covering a period of 12 months beginning within
three months after the effective date of the registration statement, which
earnings statements shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(p) take all other steps necessary to effect the registration of such
Registrable Shares contemplated hereby.
Each holder of the Registrable Shares, upon receipt of any notice from
the Corporation of any event of the kind described in Section 5(h) hereof,
shall forthwith discontinue disposition of the Registrable Shares pursuant to
the registration statement covering such Registrable Shares until such holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 5(h) hereof, and, if so directed by the Corporation, such holder shall
deliver to the Corporation all copies, other than permanent file copies then in
such holder's possession, of the prospectus covering such Registrable Shares at
the time of receipt of such notice.
SECTION 6. Expenses. All expenses (other than underwriting discounts
and commissions relating to the Registrable Shares, as provided in the
succeeding clause of this Section 6) incurred by the Corporation in complying
with Section 5, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Corporation's counsel and accountants and reasonable fees and
expenses of the Investors' Counsel, shall be paid by the Corporation; provided,
however, that all underwriting discounts and selling commissions applicable to
the Registrable Shares and Other Shares shall be borne by the holders selling
such Registrable Shares and Other Shares, in proportion to the number of
Registrable Shares and Other Shares sold by each such holder.
SECTION 7. Indemnification.
(a) In connection with any registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, the Corporation shall indemnify
and hold harmless the holders of Registrable Shares, each underwriter, broker
or any other person acting on behalf of the holders of Registrable Shares and
each other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or allegedly untrue
statement of a material fact contained in the registration statement under
which such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or, with respect to any prospectus, necessary to make
the statements therein in light of the circumstances under which they were made
not misleading, or any violation by the Corporation of the Securities Act or
state securities or blue sky laws applicable to the Corporation and relating to
action or inaction required of the Corporation in connection with such
registration or qualification under such state securities or blue sky laws; and
shall reimburse the holders of Registrable Shares, such underwriter, such
broker or such other person acting on behalf of the holders of Registrable
Shares and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Corporation shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action (including any legal or other
expenses incurred) arises out of or is based upon an untrue statement or
omission made in said registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document incident to registration or
qualification of any Registrable Shares in reliance upon and in conformity with
written information furnished to the Corporation through an instrument duly
executed by the holders of Registrable Shares or their counsel or underwriter
specifically for use in the preparation thereof; provided further, however,
that the foregoing indemnity agreement is subject to the condition that,
insofar as it relates to any untrue statement or omission made in any
preliminary prospectus but eliminated or remedied in the final prospectus
(filed pursuant to Rule 424 of the Securities Act), such indemnity agreement
shall not inure to the benefit of any Investor, underwriter, broker or other
person acting on behalf of holders of the Restricted Shares from whom the
person asserting any loss, claim, damage, liability or expense purchased the
Restricted Shares which are the subject thereof, if a copy of such final
prospectus had been made available to such person and such Investor,
underwriter, broker or other person acting on behalf of holders of the
Registrable Shares and such final prospectus was delivered to such person with
or prior to the written confirmation of the sale of such Registrable Shares to
such person.
(b) In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall severally and not jointly indemnify and hold harmless (in the same manner
and to the same extent as set forth in the preceding paragraph of this Section
7) the Corporation, each director of the Corporation, each officer of the
Corporation who shall sign such registration statement, each underwriter,
broker or other person acting on behalf of the holders of Registrable Shares
and each person who controls any of the foregoing persons within the meaning of
the Securities Act with respect to any statement or omission from such
registration statement any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, if such statement or omission was made in reliance upon and
in conformity with written information furnished to the Corporation or such
underwriter specifically for use in connection with the preparation of such
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document; provided, however, that no Investor shall have any
obligation under this Section 7(b) except for statements made by the Investor
with respect to the title of the Registrable Shares and the name and
information regarding the Investor required to be disclosed in such
registration statement; and provided further, however, that the maximum amount
of liability in respect of such indemnification shall be limited, in the case
of each seller of Registrable Shares, to an amount equal to the net proceeds
actually received by such seller from the sale of Registrable Shares effected
pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 7, such indemnified party will, if a claim in
respect thereof is made against an indemnifying party, give written notice to
the latter of the commencement of such action. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled
to participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be responsible for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that if any indemnified
party shall have reasonably concluded that there may be one or more legal or
equitable defenses available to such indemnified party which are additional to
or conflict with those available to the indemnifying party, or that such claim
or litigation involves or could have an effect upon matters beyond the scope of
the indemnity agreement provided in this Section 7, the indemnifying party
shall not have the right to assume the defense of such action on behalf of such
indemnified party and such indemnifying party shall reimburse such indemnified
party and any person controlling such indemnified party for that portion of the
fees and expenses of any counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement provided
in this Section 7.
(d) If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage,
liability or action as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the indemnifying party
or by the indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
SECTION 8. Information by Holder. The Investors shall furnish to the
Corporation such written information regarding the Investors and the
distribution proposed by the Investors as the Corporation may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 9. Exchange Act Compliance. The Corporation shall comply with
all of the reporting requirements of the Exchange Act applicable to it and
shall comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Corporation shall cooperate with the Investors in
supplying such information as may be necessary for the Investors to complete
and file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144. The Corporation
shall not take any action which would not require it to be subject to the
provisions of the Exchange Act.
SECTION 10. No Conflict of Rights. The Corporation shall not, after
the date hereof, grant any registration rights which conflict with or impair
the registrations rights granted hereby.
SECTION 11. Termination. This Agreement shall terminate and be of no
further force or effect when there shall no longer be any Registrable Shares
which have not been registered under the Securities Act and distributed to the
public in the manner described in the registration statement or registration
statements which registered such securities.
SECTION 12. Successors and Assigns. This Agreement shall bind and
inure to the benefit of the Corporation and the Investors and the respective
successors and assigns of the Investors.
SECTION 13. Assignment. Each Investor may assign his or its rights
hereunder; provided, however, that such purchaser or transferee shall, as a
condition to the effectiveness of such assignment, be required to execute a
counterpart to this Agreement agreeing to be treated as an Investor whereupon
such purchaser or transferee shall have the benefits of, and shall be subject
to the restrictions contained in, this Agreement as if such purchaser or
transferee was originally included in the definition of an Investor herein and
had originally been a party hereto.
SECTION 14. Entire Agreement. This Agreement contains the entire
agreement among the Corporation and the Investors with respect to the subject
matter hereof and supersedes all prior and contemporaneous arrangements or
understandings with respect thereto.
SECTION 15. Notices. All notices, requests, claims, demands and other
communications given or made pursuant hereto shall be in writing (and shall be
deemed to have been duly given or made upon receipt) by delivery in person, by
cable, by telecopy (with confirmation copy of such telecopied material
delivered in person or by registered or certified mail, postage prepaid, return
receipt requested) or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 15):
(i) if to any Investor:
To: Xxxxxxx X. Xxxxx
c/o Herrick, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxxx, Esq. and
Xxxxx X. Xxxxxxx, Esq.
(ii) if to the Corporation:
To: NBTY, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx and Xxxxxx Xxxxx
with a copy to:
Xxxxxxx X. Xxxxx, P.C.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
SECTION 16. Modifications; Amendments; Waivers. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Corporation and
the holders of at least a majority of the Registrable Shares then outstanding;
provided, however, that any amendment to or modification of this Agreement
which would not have an adverse affect on the rights of any Investor shall not
require the written consent of such Investor.
SECTION 17. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, and each such counterpart hereof shall
be deemed to be an original instrument, but all such counterparts together
shall constitute but one agreement. Facsimile counterpart signatures to this
Agreement shall be acceptable if the originally executed counterpart is
delivered within a reasonable period thereafter.
SECTION 18. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Registration Rights Agreement on the date first written above.
/s/ Xxxxxxx X. Xxxxx
XXXXXXX X. XXXXX
XXXXXXX XXXXXXX TRUST
F/B/O XXXX XXXXX
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Trustee of the Xxxxxxx Xxxxxxx
Trust F/B/O Xxxx Xxxxx U/A 1/21/91
(the "RS Trust"), is signing this
document solely in his fiduciary
capacity, and recourse against the
RS Trust shall be limited solely
to the assets of the RS Trust, and
no recourse shall be had against
the Trustee thereof.
XXXXXXX XXXXXXX TRUST
F/B/O E. XXXXXX XXXXXX
By: /s/ E. Xxxxxx Xxxxxx
------------------------------------------
Name: E. Xxxxxx Xxxxxx
Title: Trustee of the Xxxxxxx Xxxxxxx
Trust F/B/O E. Xxxxxx Xxxxxx U/A/
1/21/91 (the "ESL Trust"), is
signing this document solely in
his fiduciary capacity, and
recourse against the ESL Trust
shall be limited solely to the
assets of the ESL Trust, and no
recourse shall be had against the
Trustee thereof.
NBTY, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President and Chief Executive
Officer
