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EXHIBIT 4.02
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
AND SHAREHOLDERS' AGREEMENT
This Amendment (the "AMENDMENT") is entered into as of February 27, 1997,
by and among O.S.I. Corporation, a California corporation (the "Company") and
the other persons and entities whose names are set forth on the signature pages
hereto. This Amendment amends that certain Registration Rights Agreement dated
as of October 30,1992 (the "REGISTRATION RIGHTS AGREEMENT") and that certain
Shareholders Agreement also dated as of October 30, 1992 (the "SHAREHOLDERS'
AGREEMENT"), each by and among the Company and the other parties listed on the
signature pages thereto.
R E C I T A L S
WHEREAS, on October 30, 1992, the Company and certain of the investors and
shareholders in the Company entered into the Registration Rights Agreement and
the Shareholders' Agreement;
WHEREAS, pursuant to a Settlement Agreement and Release dated as of
February __, 1997 by and among Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx
Xxxxx, Xxxxxx X. Xxxxxxx and Xxxx Xxxxxxxx (collectively, the "Shareholders"),
the Company and certain other parties, the Company has agreed to provide the
Shareholders with certain priority on registration rights, and the Shareholders
have agreed to place their shares of Company stock in a voting trust, among
other things;
WHEREAS, the parties hereto desire to amend the Registration Rights
Agreement and Shareholders Agreement to assist in the implementation of the
foregoing.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Priority Registration Rights. The following paragraph shall be
added to the Registration Rights Agreement:
"3.16 Rights of Certain Holders upon Initial Public Offering.
Notwithstanding anything to the contrary herein, no other Holders shall be
allowed to register any Registrable Securities in a registration related to the
Company's Initial Public Offering (including, but not limited to, a registration
initiated pursuant to section 2.1 herein) or any subsequent public offering
unless each of Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X.
Xxxxxxx and Xxxx Xxxxxxxx (the "PRIORITY HOLDERS") have been allowed to register
at least fifty percent (50%) of the Registrable Securities held by each such
Holder at the time of the Company's Initial Public Offering. For the avoidance
of doubt it is acknowledged that there can be no assurance that the Priority
Holders will be able to sell any shares in an Initial Public Offering, as this
will
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depend on the market conditions at such time. Rather, the Company's commitment
is that no other Holder will be permitted to sell any shares in an Initial
Public Offering unless the Priority Holders have each been permitted to include
up to 50% of their Registrable Shares in the registration.
2. Market Lock-up. The Shareholders agree to not sell or otherwise
transfer any of their shares in the Company not included in the Company's
initial public offering for a period of 180 days after such offering, so long as
the Company's officers, directors and greater than 5% shareholders agree to be
similarly bound. The Shareholders agree to enter into a reasonable "market
lock-up" agreement with the Company's underwriter to implement the foregoing.
3. Consent to Voting Trust. The undersigned hereby consent to the transfer
of the Shareholders' shares pursuant to the Voting Trust Agreement and
acknowledge that the Shareholders shall retain their registration rights as to
such shares, as set forth in the Registration Rights Agreement, as amended
hereby, and that the voting provisions of the Voting Trust shall take precedence
over the voting provisions of the Shareholders' Agreement.
4. Amendment of Shareholders Agreement. So much of Section 4.10 of
the Shareholders Agreement, which currently reads as follows:
"may not be amended, modified or discharged except by an instrument
in writing signed by (i) the Company, (ii) each holder of 15% or more of the
shares of Restricted Stock then outstanding, and (iii) a majority of the other
holders of Restricted Stock then outstanding, in each case on an as converted
and if exercised basis."
is hereby amended and restated to read as follows:
"may not be amended, modified or discharged except by an instrument
in writing signed by (i) the Company, (ii) each holder of 15% or more of the
shares of Restricted Stock then outstanding, and (iii) holders of a majority of
the shares of Restricted Stock then outstanding, in each case on an as converted
and if exercised basis."
5. No Other Effects. Except as set forth herein, the Registration
Rights Agreement and Shareholders Agreement shall remain in full force and
effect.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
7. Entire Agreement. This Amendment constitutes the entire
understanding and agreement of the parties with respect to the subject matter
hereof and supersedes all prior understandings and agreements with respect to
such matters.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
O.S.I. CORPORATION
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
XXXXX PARTNERS, L.P.
By: BGW Partners, L.P.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: General Partner
XXXXX PARTNERS INTERNATIONAL, L.P.
By: BGW PARTNERS, L.P.
its General Partner
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: General Partner
ALLERGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Corporate Vice-President,
Secretary and General
Counsel
[AMENDMENT TO REGISTRATION RIGHTS AGREEMENT AND SHAREHOLDERS AGREEMENT]
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/s/ XXXX X. XXXXX
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XXXX X. XXXXX
/s/ XXXXXXX XXXXXX
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XXXXXXX XXXXXX
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XXXXX XXXX
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XXXXXX XXXXXXX
/s/ XXXXXXXX XXXXXX
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XXXXXXXX XXXXXX
/s/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX
/s/ XXXXXX XXXXX
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XXXXXX XXXXX
/s/ XXXX XXXXXXXX
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[AMENDMENT TO REGISTRATION RIGHTS AGREEMENT AND SHAREHOLDERS AGREEMENT]
