Exhibit 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
between
ADVANCED MEDICAL OPTICS, INC.
as Issuer,
and
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED,
BANC OF AMERICA SECURITIES LLC,
as Initial Purchasers
Dated as of June 22, 2004
REGISTRATION RIGHTS AGREEMENT dated as of June 22, 2004 (this
"Agreement") between Advanced Medical Optics, Inc., a Delaware corporation,
(the "Company") and the several initial purchasers named in Schedule I hereto
(the "Initial Purchasers"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement dated June 16, 2004 (the "Purchase Agreement")
between the Company and the Initial Purchasers, the Company has agreed to
provide the registration rights set forth in this Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Notes (as defined
herein) and the beneficial owners from time to time of the Underlying Common
Stock (as defined herein) issued upon conversion of the Notes (each of the
foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Additional Interest Amount" has the meaning set forth in Section
2(e) hereof.
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, $0.01 par value per
share, of the Company, together with the Rights evidenced by such common stock
to the extent provided in the Rights Agreement dated as of June 24, 2002,
between the Company and Mellon Investor Services LLC, as amended, and any
other shares of common stock as may constitute "Common Stock" for purposes of
the Indenture, including the Underlying Common Stock.
"Conversion Price" has the meaning assigned such term in the
Indenture.
"Damages Accrual Period" has the meaning set forth in Section 2(e)
hereof.
"Damages Payment Date" means each January 15 and July 15.
"Deferral Notice" has the meaning set forth in Section 3(h) hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Effectiveness Period" means the period commencing on the date hereof
and ending on the earlier of the date that all Registrable Securities have
ceased to be Registrable Securities or have ceased to be outstanding.
"Election and Questionnaire" means a written election delivered to
the Company containing substantially the information called for by the Selling
Securityholder Election and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated June 16, 2004 relating to the Notes, as such
notice may be amended upon the advice of nationally-recognized counsel
experienced in such matters, to the extent reasonably necessary to ensure
compliance with applicable law.
"Election Holder" means, on any date, any Holder that has delivered a
Election and Questionnaire to the Company on or prior to such date.
"Event" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Fundamental Change" has the meaning set forth in the Indenture.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of June 22, 2004, between
the Company and U.S. Bank National Association, as trustee, pursuant to which
the Notes are being issued.
"Initial Purchasers" has the meaning set forth in the preamble
hereof.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means June 22, 2004.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Note Register" has the meaning set forth in the Indenture.
"Note Registrar" has the meaning set forth in the Indenture.
"Notes" means the 2.50% Convertible Senior Subordinated Notes Due
2024 of the Company to be purchased pursuant to the Purchase Agreement.
"Purchase Agreement" has the meaning set forth in the preamble
hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such Prospectus.
"Record Date" means each January 1 and July 1.
"Record Holder" means with respect to any Damages Payment Date
relating to any Notes as to which any Additional Interest Amount has accrued,
the registered holder of such Note on the January 1 immediately preceding a
Damages Payment Date occurring on a January 15, and on the July 1 immediately
preceding a Damages Payment Date occurring on a July 15.
"Registrable Securities" means the Notes until such Notes have been
converted into or exchanged for the Underlying Common Stock and, at all times
subsequent to any such conversion, the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted
or exchanged, and any security issued with respect thereto upon any stock
dividend, split or similar event until, in the case of any such security, the
earliest of:
(x) the date on which such security has been registered
under the Securities Act and disposed of pursuant to an effective
registration statement;
(y) the date on which such security is distributed to the
public pursuant to Rule 144 under the Securities Act or may be sold
or transferred by a person who is not an Affiliate of the Company
pursuant to Rule 144(k) under the Securities Act (or any other
similar provision then in force) without any volume or manner of sale
restrictions thereunder; and
(z) the date on which such securities cease to be
outstanding (whether as a result of repurchase and cancellation,
conversion or otherwise).
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such registration
statement.
"Restricted Securities" means "restricted securities" as defined in
Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Special Counsel" means Xxxxxxx Xxxxxxx & Xxxxxxxx LLP or one such
other successor counsel as shall be specified by the Holders of a majority of
the Registrable Securities and reasonably acceptable to the Company, but which
may, with the written consent of the Initial Purchasers (which shall not be
unreasonably withheld), be another nationally recognized law firm experienced
in securities law matters designated by the Company, the reasonable fees and
expenses in connection with Blue Sky qualifications of the Registrable
Securities of which will be paid by the Company pursuant to Section 5 hereof.
For purposes of determining the Holders of a majority of the Registrable
Securities in this definition, Holders of Notes shall be deemed to be the
Holders of the number of shares of Underlying Common Stock into which such
Notes are or would be convertible as of the date the consent is requested.
"Subsequent Shelf Registration Statement" has the meaning set forth
in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means U.S. Bank National Association, the Trustee under the
Indenture.
"Underlying Common Stock" means the Common Stock into which the Notes
are convertible or issued upon any such conversion.
Section 2. Shelf Registration. The Company shall use its reasonable
best efforts to prepare and file or cause to be prepared and filed with the
SEC, by the date (the "Filing Deadline Date") ninety (90) calendar days after
the Issue Date, a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
"Shelf Registration Statement") registering the resale from time to time by
Holders thereof of all of the Registrable Securities (the "Initial Shelf
Registration Statement"). The Initial Shelf Registration Statement shall be on
Form S-3 or another appropriate form permitting registration of such
Registrable Securities for resale by such Holders in accordance with the
methods of distribution elected by the Holders and set forth in the Initial
Shelf Registration Statement. The Company shall use its reasonable best
efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act by the date (the "Effectiveness Deadline
Date") that is one hundred eighty (180) calendar days after the Issue Date,
and to keep the Initial Shelf Registration Statement (or any Subsequent Shelf
Registration Statement) continuously effective under the Securities Act until
the expiration of the Effectiveness Period. At the time the Initial Shelf
Registration Statement is declared effective, each Holder that became a Notice
Holder on or prior to the date ten (10) Business Days prior to such time of
effectiveness shall be named as a selling securityholder in the Initial Shelf
Registration Statement and the related Prospectus in such a manner as to
permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law. No Holder that is not a Notice
Holder shall be entitled to be named as a selling securityholder in or have
the Registrable Securities held by it covered in, a Shelf Registration
Statement. The Company shall use its reasonable best efforts to ensure that
none of the Company's security holders (other than the Holders of Registrable
Securities) shall have the right to include any of the Company's securities in
the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty
(30) days of such cessation of effectiveness amend the Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration Statement covering all of the securities that as of the date of
such filing are Registrable Securities (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is filed, the
Company shall use its reasonable best efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is practicable after
such filing and to keep such Registration Statement (or subsequent Shelf
Registration Statement) continuously effective until the end of the
Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration
Statement, if required by the Securities Act or as necessary to name a Notice
Holder as a selling securityholder pursuant to Section 2(d) below.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus,
it will do so only in accordance with this Section 2(d) and Section 3(h) of
this Agreement. Following the date that the Initial Shelf Registration
Statement is declared effective, each Holder that is not a Notice Holder
wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Election and
Questionnaire to the Company at least fifteen (15) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, as promptly as practicable after the
date a Election and Questionnaire is delivered to the Company is accordance
with the provisions of Section 8(c), and in any event upon the later of (x)
fifteen (15) Business Days after such date or (y) fifteen (15) Business Days
after the expiration of any Deferral Period in effect when the Election and
Questionnaire is delivered or put into effect within fifteen (15) Business
Days of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that the Holder delivering such Election and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement
and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable best efforts to cause such
post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable, but in any event by the
date (the "Amendment Effectiveness Deadline Date") that is forty-five
(45) days after the date such post-effective amendment is required by
this clause to be filed by us in accordance with this clause (i);
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(d)(i);
provided, that if such Election and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering such
Election and Questionnaire and shall take the actions set forth in clauses
(i), (ii) and (iii) above upon expiration of the Deferral Period in accordance
with Section 3(h). Notwithstanding anything contained herein to the contrary,
(i) the Company shall be under no obligation to name any Holder that is not a
Notice Holder as a selling securityholder in any Registration Statement or
related Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be
extended by up to fifteen (15) Business Days from the expiration of a Deferral
Period if such Deferral Period shall be in effect on the Amendment
Effectiveness Deadline Date.
(e) The parties hereto agree that the Holders of Notes that are
Registrable Securities will suffer damages, and that it would not be feasible
to ascertain the extent of such damages with precision, if, other than as
permitted hereunder,
(i) the Initial Shelf Registration Statement has not been
filed on or prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been
declared effective under the Securities Act on or prior to the
Effectiveness Deadline Date, or
(iii) the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such period
pursuant to Section 3(h) hereof.
Each event described in any of the foregoing clauses (i) through (iii) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin and end on the dates set forth in the
table set forth below:
Type of Event
by Clause Beginning Date Ending Date
-------------- -------------- -----------
(i) Filing Deadline Date the date the Initial
Shelf Registration
Statement is filed
(ii) Effectiveness Deadline Date the date the Initial
Shelf Registration
Statement becomes
effective under the
Securities Act
(iii) the date on which the termination of the
aggregate duration of Deferral Period that
Deferral Periods in any caused the limit on the
period exceeds the number of aggregate duration of
days permitted by Section Deferral Periods to be
3(h) exceeded
For purposes of this Agreement, Events shall begin on the dates set forth in
the table above and shall continue until the ending dates set forth in the
table above.
Commencing on (and including) any date that an Event has begun and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), the Company shall
pay, as Additional Interest and not as a penalty, to Record Holders of Notes
that are Registrable Securities an amount (the "Additional Interest Amount")
accruing, for each day in the Damages Accrual Period, in respect of any Note,
at a rate per annum equal to (A) 0.25% of the aggregate principal amount of
such Note to and including the 90th calendar day of the Damages Accrual Period
and (B) 0.50% of the aggregate principal amount of such Note from and after
the 91st calendar day of the Damages Accrual Period. Notwithstanding the
foregoing, no Additional Interest Amount shall accrue as to any Note that is a
Registrable Security from and after the earlier of (x) the date such Note is
no longer a Registrable Security and (y) expiration of the Effectiveness
Period. The rate of accrual of the Additional Interest Amount with respect to
any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Following the
cure of all Events relating to any particular Note, the accrual of Additional
Interest with respect to such Note shall cease.
The Additional Interest Amount shall accrue from the first day of the
applicable Damages Accrual Period, and shall be payable on each Damages
Payment Date during the Damage Accrual Period (and on the Damages Payment Date
next succeeding the end of the Damages Accrual Period if the Damage Accrual
Period does not end on a Damages Payment Date) to the Record Holders of Notes
that are Registrable Securities entitled thereto; provided, that any
Additional Interest Amount accrued with respect to any Note or portion thereof
redeemed by the Company on a redemption date, or repurchased by the Company on
a repurchase date in connection with a Fundamental Change, in either case that
is after a Damages Payment Date and before the next Record Date, shall, in any
such event, be paid on the applicable redemption date or repurchase date, as
the case may be, instead to the Holder who submitted such Note or portion
thereof for redemption on the applicable redemption date or repurchase on the
applicable repurchase date; provided, further, that any Additional Interest
Amount accrued with respect to any Note or portion thereof converted into
Underlying Securities in connection with a Fundamental Change shall be paid on
the conversion date instead to the Holder who submitted such Note or portion
thereof for conversion. The Trustee shall be entitled, on behalf of registered
holders of Notes, to seek any available remedy for the enforcement of this
Agreement, including for the payment of such Additional Interest Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which
Additional Interest are expressly provided shall be such Additional Interest.
Nothing shall preclude any Holder from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) to
pay any Additional Interest Amount that is outstanding with respect to any
Note that is a Registrable Security at the time such Note ceases to be a
Registrable Security shall survive until such time as all such obligations
with respect to such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the Additional Interest provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Notes that are Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed or declared effective
or available for effecting resales of Notes that are Registrable Securities in
accordance with the provisions hereof.
Section 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, during the
Effectiveness Period, the Company shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC (other than any supplements
that do nothing more substantive than name one or more Notice Holders as
selling securityholders), furnish to the Initial Purchasers and the Special
Counsel of such offering, if any, copies of all such documents proposed to be
filed at least three (3) Business Days prior to the filing of such
Registration Statement or amendment thereto or Prospectus or supplement
thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for
the applicable period specified in Section 2(a); cause the related Prospectus
to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force) under the Securities Act; and use its reasonable best efforts to
comply with the provisions of the Securities Act applicable to it with respect
to the disposition of all securities covered by such Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement as
so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders, (i)
when any Prospectus, prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with the
SEC and, with respect to a Registration Statement or any post-effective
amendment, when the same has been declared effective; provided, however, that
the Company shall not be required by this clause (i) to notify any Notice
Holder of the filing of a prospectus supplement that does nothing more
substantive than name one or more other Notice Holders as selling
securityholders, (ii) of any request, following the effectiveness of the
Initial Shelf Registration Statement under the Securities Act, by the SEC or
any other federal or state governmental authority for amendments or
supplements to any Registration Statement or related Prospectus or for
additional information related thereto, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, (v) of the occurrence of, but not the nature
of or details concerning, a Material Event (provided, that no notice by the
Company shall be required pursuant to this clause (v) in the event that the
Company either promptly files a supplement to update the Prospectus or a Form
8-K or other appropriate Exchange Act report that is incorporated by reference
into the Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such
Registration Statement no longer containing any untrue statement of a material
fact or omitting to state a material fact necessary to make the statement
contained therein not misleading) and (vi) of the determination by the Company
that a post-effective amendment to a Registration Statement will be filed with
the SEC, which notice may, at the discretion of the Company (or as required
pursuant to Section 3(h)), state that it constitutes a Deferral Notice, in
which event the provisions of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case as promptly as practicable, and
provide prompt notice to each Notice Holder and the Initial Purchasers of the
withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder, the
Special Counsel and the Initial Purchasers, upon request and without charge,
at least one (1) conformed copy of the Registration Statement and any
amendment thereto, including exhibits but without documents incorporated or
deemed to be incorporated therein by reference if such documents are available
via XXXXX.
(f) During the Effectiveness Period, deliver to each Notice Holder,
in connection with any sale of Registrable Securities pursuant to a
Registration Statement, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such Notice
Holder may reasonably request; and the Company hereby consents (except during
such periods that a Deferral Notice is outstanding and has not been revoked)
to the use of such Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto
in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable best efforts to
register or qualify or cooperate with the Notice Holders and the Special
Counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any Notice Holder reasonably requests in writing
(which request may be included in the Election and Questionnaire); prior to
any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable best efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder's offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; provided, that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but
for this Agreement or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where it
is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact (a "Material Event") as a result of which any
Registration Statement shall contain any 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, or any Prospectus shall contain
any 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, in
the light of the circumstances under which they were made, not misleading, (C)
the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose or (D) the occurrence or existence of any
pending corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other
required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration
Statement does not contain any 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 such
Prospectus does not contain any 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, in the light of the
circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use its
reasonable best efforts to cause it to be declared effective as
promptly as is practicable, and
(ii) give notice to the Notice Holders, that the
availability of the Shelf Registration Statement is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Registrable Securities pursuant
to the Registration Statement until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in
clause (i) above, or until it is advised in writing by the Company
that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus, and such Holder will
either (X) destroy any Prospectuses, other than permanent file
copies, then in such Holder's possession that have been replaced by
the Company with more recently dated prospectuses or (Y) deliver to
the Company (at the Company's expense) all copies in such Holder's
possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities,
current at the time of receipt of such notice.
The Company will use its reasonable best efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) and (C) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as,
in the sole judgment of the Company, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (D) above, as soon as in the
reasonable discretion of the Company, such suspension is no longer
appropriate. Any period during which the availability of the Shelf
Registration Statement and any Prospectus is suspended (the "Deferral Period")
shall, without incurring any obligation to pay Additional Interest pursuant to
Section 2(e), not exceed 45 calendar days in any 90 calendar-day period (or 60
calendar days in any 90 calendar-day period in the event of a Material Event
pursuant to which the Company has delivered a second notice as permitted
below) or 120 days in any 360 calendar-day period; provided, that in the case
of a Material Event relating to an acquisition or a probable acquisition,
financing, recapitalization, business combination or other similar
transaction, the Company may, without incurring any obligation to pay
Additional Interest pursuant to Section 2(e), deliver to Notice Holders a
second notice to the effect set forth above, which shall have the effect of
extending the Deferral Period by up to an additional 15 calendar days, or such
shorter period of time as is specified in such second notice.
(i) If requested in writing in connection with a disposition of
Registrable Securities in an aggregate amount of at least $5 million pursuant
to a Registration Statement, make reasonably available for inspection during
normal business hours by a representative for the Notice Holders of such
Registrable Securities, any broker-dealers, attorneys and accountants retained
by such Notice Holders, and any attorneys or other agents retained by a
broker-dealer engaged by such Notice Holders, all relevant financial and other
records and pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the appropriate officers, directors and employees
of the Company and its subsidiaries to make reasonably available for
inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice
Holders, or any such broker-dealers, attorneys or accountants in connection
with such disposition, in each case as is customary and reasonably necessary
for similar "due diligence" examinations; provided, that such persons shall
first agree in writing with the Company that any non-public information shall
be kept confidential by such persons and shall be used solely for the purposes
of exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration
Statement or the use of any prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement, and
provided, further, that the foregoing inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of all the
Notice Holders and the other parties entitled thereto by Special Counsel. Any
person legally compelled to disclose any such confidential information made
available for inspection shall provide the Company with prompt prior written
notice of such requirement so that the Company may seek a protective order or
other appropriate remedy.
(j) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) for a 12-month period commencing on
the first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Registration Statement, which certificates
shall not bear any restrictive legends, and cause such Registrable Securities
to be in such denominations as are permitted by the Indenture and registered
in such names as such Notice Holder may request in writing at least two (2)
Business Days prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for the
Common Stock with printed certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company.
(m) Reasonably cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc.
(n) Upon the filing of the Initial Shelf Registration Statement,
announce the same, by release to Reuters Economic Services and Bloomberg
Business News and by delivery of written notice by first class mail to the
registered Holders at their addresses set forth in the Note Register of the
Note Registrar.
(o) Upon the effectiveness of the Initial Shelf Registration
Statement, announce the same, by release to Reuters Economic Services and
Bloomberg Business News.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition
of the Registrable Securities, that no Holder shall be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company
with a Election and Questionnaire as required pursuant to Section 2(d) hereof
(including the information required to be included in such Election and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably request. Any sale
of any Registrable Securities by any Holder shall constitute a representation
and warranty by such Holder that the information relating to such Holder and
its plan of distribution is as set forth in the Prospectus delivered by such
Holder in connection with such disposition, that such Prospectus does not as
of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that
such Prospectus does not as of the time of such sale omit to state any
material fact relating to or provided by such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in the light
of the circumstances under which they were made, not misleading.
Section 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Section 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to
be made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel
in connection with Blue Sky qualifications of the Registrable Securities under
the laws of such jurisdictions as Notice Holders of a majority of the
Registrable Securities being sold pursuant to a Registration Statement may
designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for
deposit with The Depository Trust Company), (iii) duplication expenses
relating to copies of any Registration Statement or Prospectus delivered to
any Holders hereunder, (iv) fees and disbursements of counsel for the Company
in connection with the Shelf Registration Statement, (v) reasonable fees and
disbursements of the Trustee and its counsel and of the Note Registrar and
transfer agent for the Common Stock and (vi) any Securities Act liability
insurance obtained by the Company in its sole discretion. In addition, the
Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing by the Company of the
Registrable Securities on any securities exchange on which similar securities
of the Company are then listed, if any listing is made, and the fees and
expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay selling expenses, including any underwriting discount and
commissions, and all registration expenses to the extent required by
applicable law.
Section 6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Notice Holder, each person, if any, who controls any
Notice Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Notice Holder within
the meaning of Rule 405 under the Securities Act that is a broker-dealer from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any (i) untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or any amendment thereof, caused by
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
or (ii) untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made
not misleading, except in each of (i) and (ii) above insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Holder furnished to the Company in writing by such Holder
expressly for use therein; provided, that the indemnification contained in
this paragraph shall not inure to the benefit of any Holder (or to the benefit
of any person controlling such Holder) on account of any such losses, claims,
damages or liabilities caused by any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus
provided in each case the Company has performed its obligations under Section
3(f) hereof if either (A) (x) such Holder failed to send or deliver a copy of
the Prospectus with or prior to the delivery of written confirmation of the
sale by such Holder to the person asserting the claim from which such losses,
claims, damages or liabilities arise and (y) the Prospectus would have
corrected such untrue statement or alleged untrue statement or such omission
or alleged omission, or (B) (x) such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and (y) having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented, with or prior to the delivery of written confirmation
of the sale of a Registrable Security to the person asserting the claim from
which such losses, claims, damages or liabilities arise.
(b) Indemnification by Holders. Each Holder, severally and not
jointly, agrees to indemnify and hold harmless the Company and its directors,
officers and each person, if any, who controls the Company (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act)
or any other Holder, to the same extent as the foregoing indemnity from the
Company and the Guarantor to such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by
such Holder expressly for use in such Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of any Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 6(a) or
6(b) hereof, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel at its standard non-premium
rates) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by, in the case of parties indemnified pursuant to Section 6(a), the
Holders of a majority (with Holders of Notes deemed to be the Holders, for
purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date
on which such designation is made) of the Registrable Securities covered by
the Registration Statement held by Holders that are indemnified parties
pursuant to Section 6(a) and, in the case of parties indemnified pursuant to
Section 6(b), the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment that is
indemnifiable pursuant to Section 6(a) or 6(b), as the case may be.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement; provided, that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party, prior to the date of such settlement, (1)
reimburses such indemnified party in accordance with such request for the
amount of such fees and expenses of counsel as the indemnifying party believes
in good faith to be reasonable, and (2) provides written notice to the
indemnified party that the indemnifying party disputes in good faith the
reasonableness of the unpaid balance of such fees and expenses. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been 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 on claims that are the subject matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided for
in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company shall be deemed to be equal to the total net proceeds from the
offering and sale of the Notes to the Initial Purchasers made pursuant to the
Purchase Agreement (before deducting expenses) of the Registrable Securities
to which such losses, claims, damages or liabilities relate. The relative
benefits received by any Holder shall be deemed to be equal to the value of
receiving Registrable Securities that are registered under the Securities Act.
The relative fault of the Holders on the one hand and the Company on the other
hand 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 Holders or by the Company, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Holders' respective obligations to contribute pursuant to this
Section 6(d) are several in proportion to the respective number of Registrable
Securities they have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into
account 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 this Section 6, no indemnifying party that is
a selling Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such indemnifying party 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 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity, hereunder, under the Purchase Agreement
or otherwise.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Holder, any person controlling any Holder or any affiliate of
any Holder or by or on behalf of the Company, their officers or directors or
any person controlling the Company and (iii) the sale of any Registrable
Securities by any Holder.
Section 7. Information Requirements. The Company covenants that, if
at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder and take such further reasonable action as any Holder may
reasonably request in writing (including, without limitation, making such
reasonable representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions. Upon the written request of any Holder, the Company shall deliver
to such Holder a written statement as to whether it has complied with such
filing requirements, unless such a statement has been included in the
Company's most recent report filed pursuant to Section 13 or Section 15(d) of
Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall
be deemed to require the Company to register any of its securities (other than
the Common Stock) under any section of the Exchange Act.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to its securities that conflicts with
the rights granted to the Holders in this Agreement. The Company represents
and warrants that the rights granted to the Holders hereunder do not in any
way conflict with the rights granted to the holders of the Company's
securities under any other agreements.
(b) Amendments and Waivers. Except as provided in the next paragraph,
the provisions of this Agreement, including the provisions of this sentence,
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of Holders of a majority of the then outstanding
Underlying Common Stock constituting Registrable Securities (with Holders of
Notes deemed to be the Holders, for purposes of this Section, of the number of
outstanding shares of Underlying Common Stock into which such Notes are or
would be convertible as of the date on which such consent is requested).
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Registration
Statement and that does not affect the rights of other Holders may be given by
Holders of a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement; provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Notwithstanding the
foregoing two sentences, this Agreement may be amended by written agreement
signed by the Company and the Initial Purchasers, without the consent of the
Holders of Registrable Securities, to cure any ambiguity or to correct or
supplement any provision contained herein that may be defective or
inconsistent with any other provision contained herein, or to make such other
provisions in regard to matters or questions arising under this Agreement that
shall not adversely affect the interests of the Holders of Registrable
Securities. Each Holder of Registrable Securities outstanding at the time of
any such amendment, modification, supplement, waiver or consent or thereafter
shall be bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 8(b), whether or not any notice,
writing or marking indicating such amendment, modification, supplement, waiver
or consent appears on the Registrable Securities or is delivered to such
Holder.
To the extent that any Notes remain outstanding, upon a merger or
consolidation or sale, conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company in which the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or the Person who acquires by sale, conveyance, transfer or lease all
or substantially all of the properties and assets of the Company assumes the
Company's obligations under the Indenture and the Notes, the Company shall
procure the assumption of its obligations under this Agreement by such Person,
and this Agreement may be amended, modified or supplemented without the
consent of any Holders to provide for such assumption of the Company's
obligations hereunder. Without the consent of each Holder of Notes, no
amendment or modification may change the provisions relating to the payment of
Additional Interest. (c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
by telecopier, by courier guaranteeing overnight delivery or by first-class
mail, return receipt requested, and shall be deemed given (i) when made, if
made by hand delivery, (ii) upon confirmation, if made by telecopier, (iii)
one (1) Business Day after being deposited with such courier, if made by
overnight courier or (iv) on the date indicated on the notice of receipt, if
made by first-class mail, to the parties as follows:
(i) if to a Holder, at the most current address given by
such Holder to the Company in a Election and Questionnaire or any
amendment thereto;
(ii) if to the Company, to:
Advanced Medical Optics, Inc.
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) if to the Initial Purchasers, to:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as such person may have furnished to the other
persons identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent Holders if such subsequent Holders are deemed to be
such affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities, provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Indenture. If any transferee of
any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities, such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any term provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement. In no event will such methods of
distribution take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5, 6 or 8 hereof and the
obligations to make payments of and provide for the Additional Interest Amount
under Section 2(e) hereof to the extent such amount accrues prior to the end
of the Effectiveness Period, each of which shall remain in effect in
accordance with its terms.
WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ADVANCED MEDICAL OPTICS, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Operations and Finance, and
Chief Financial Officer
Confirmed and accepted as of
the date first above written:
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
On behalf of the Initial Purchasers
listed in Schedule I hereto
By: XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Director
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
SCHEDULE I
INITIAL PURCHASERS
XXXXXX BROTHERS, INC.
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
