1
Exhibit s
CONFORMED COPY
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REGISTRATION RIGHTS AGREEMENT
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Among
SOFAMOR XXXXX GROUP, INC.,
THE HOLDERS
LISTED ON THE
SIGNATURE PAGES HERETO
and
XXXXX-XXXXXX XXXXXX PLAIS, as
the Holders' Representative
Dated as of January 26, 1998
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TABLE OF CONTENTS
Section Page
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ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Certain Defined Terms.................................. 1
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.01. Registration Rights.................................... 3
SECTION 2.02. Registration Procedures................................ 4
SECTION 2.03. Information from Selling Holders....................... 7
SECTION 2.04. Discontinuance of Dispositions......................... 7
SECTION 2.05. Indemnification by the Company......................... 7
SECTION 2.06. Indemnification by Selling Holders..................... 8
SECTION 2.07. Delivery of Prospectus................................. 8
SECTION 2.08. Conduct of Indemnification Proceedings................. 8
SECTION 2.09. Contribution........................................... 9
SECTION 2.10. Selection of Investment Banks.......................... 10
SECTION 2.11. Limitations on Participation........................... 10
SECTION 2.12. Registration Expenses.................................. 10
SECTION 2.13. Alternative Family Registration........................ 10
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Notices................................................ 11
SECTION 3.02. Headings............................................... 13
SECTION 3.03. Severability........................................... 13
SECTION 3.04. Entire Agreement....................................... 13
SECTION 3.05. Amendment; Waiver...................................... 13
SECTION 3.06. Successors, Assigns and Transferees.................... 13
SECTION 3.07. Governing Law.......................................... 13
SECTION 3.08. Counterparts; Governing Language....................... 14
SECTION 3.09. The Holders' Representative............................ 14
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REGISTRATION RIGHTS AGREEMENT, dated as of January 26, 1998 (this
"Agreement"), among SOFAMOR XXXXX GROUP, INC., an Indiana corporation (the
"Company"), the shareholders listed on the signature pages of this Agreement
(each, a "Holder" and, collectively, the "Holders"), and XXXXX-XXXXXX XXXXXX
PLAIS, as designated representative of the Holders (the "Holders'
Representative").
W I T N E S S E T H:
WHEREAS, the Company and the Holders have entered into a Stock
Exchange Agreement, dated as of January 26, 1998 (the "Stock Exchange
Agreement"), which provides, upon the terms and subject to the conditions
thereof, for the purchase by the Company from the Holders of all the outstanding
capital stock of Sofyc, S.A., a French societe anonyme; and
WHEREAS, as a condition to the consummation of transactions
contemplated under the Stock Exchange Agreement, the parties thereto have agreed
to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following capitalized terms shall have the following respective meanings:
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such specified
Person.
"Alternative Family Demand" has the meaning specified in Section
2.13.
"Beneficially Own" and "Beneficial Ownership", with respect to any
securities, mean having beneficial ownership as determined pursuant to Rule
13d-3 under the Exchange Act, including pursuant to any agreement, arrangement
or understanding, whether or not in writing.
"Company Common Stock" means the common stock, no par value, of the
Company.
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"Cotrel Registrable Securities" means the number of shares of Common
Stock owned by Yves Xxxx Xxxxxx and Xxxxx Xxxxxx Xxxxxx as of the date hereof
minus their share of the Family Registrable Securities (after giving effect to
the transactions contemplated by the Stock Exchange Agreement), together with
any securities which may be issued or distributed in respect thereof by way of
stock dividend or stock split or other distribution, recapitalization or
reclassification. The Cotrel Registrable Securities shall cease to be Cotrel
Registrable Securities when a Registration Statement with respect thereto shall
have become effective under the Securities Act, they shall have been sold,
transferred or assigned to any Person or they shall have ceased to be
outstanding.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Family Registrable Securities" means 1,600,000 shares of Company
Common Stock received by the Holders pursuant to the transactions contemplated
by the Stock Exchange Agreement, together with any securities which may be
issued or distributed in respect thereof by way of stock dividend or stock split
or other distribution, recapitalization or reclassification. The Family
Registrable Securities shall immediately cease to be Family Registrable
Securities when a Registration Statement with respect thereto shall have become
effective under the Securities Act, they shall have been sold, transferred or
assigned to any Person or they shall have ceased to be outstanding. The
allocation of the Family Registrable Securities among the Holders is attached
hereto as Exhibit A.
"Fourth Anniversary" has the meaning specified in Section 2.01(b).
"Person" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any department
or agency thereof.
"Postponement Period" has the meaning set forth in Section 2.01(b).
"Prospectus" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments or supplements
to the Prospectus, including post-effective amendments, and all material
incorporated, or deemed to be incorporated, by reference in such Prospectus.
"Registrable Securities" means the Cotrel Registrable Securities and
the Family Registrable Securities.
"Registration" has the meaning specified in Section 2.01(a).
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"Registration Statement" means a registration statement on Form S-3
under the Securities Act which covers any Registrable Securities filed by the
Company pursuant to the provisions of this Agreement, including the Prospectus
contained therein, any amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhibits and all
material incorporated, or deemed to be incorporated, by reference in such
Registration Statement.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Selling Holders" shall mean such Holders or Holder of Registrable
Securities being registered in connection with a Registration Statement pursuant
to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.01. Registration Rights. (a) The Company agrees to use its
reasonable efforts to effect the registration of the Family Registrable
Securities under and in accordance with the provisions of the Securities Act
(the "Family Registration") so that such registration is effective under the
Securities Act, subject to market conditions and the advice of the managing
underwriter, as soon as reasonably practicable. The Family Registration shall be
pursuant to an underwritten public sale.
(b) At any time following the first anniversary of the closing of
the offering effected in connection with the Family Registration and prior to
the fourth anniversary of such closing (the "Fourth Anniversary"), Yves Xxxx
Xxxxxx and Xxxxx Xxxxxx Xxxxxx, acting together or the survivor of them, may
make one written request to the Company for registration of the Cotrel
Registrable Securities (the "Cotrel Registration", and together with the Family
Registration (including any registration pursuant to an Alternative Family
Demand), the "Registrations", or individually, a "Registration") under and in
accordance with the Securities Act. Anything in this Agreement to the contrary
notwithstanding, the Company shall be entitled to postpone and delay the Cotrel
Registration up to two times for a period of 90 days each (in each case, a
"Postponement Period") if the Company reasonably determines that an offering at
such time would have an adverse effect on the Company under the circumstances
then outstanding; provided, however, that if any Postponement Period extends to
or beyond the Fourth Anniversary, then, on the day immediately following the
last day of such Postponement Period, the registration right of
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Yves Xxxx Xxxxxx and Xxxxx Xxxxxx Xxxxxx under this Section 2.01(b) shall be
reinstated for a period equal to the number of days of the Postponement Period
falling prior to the Fourth Anniversary. No extension of the registration right
of Yves Xxxx Xxxxxx and Xxxxx Xxxxxx Xxxxxx under this Section 2.01(b) shall
result from any postponement by the Company if the Postponement Period with
respect thereto terminates prior to the Fourth Anniversary. The method of
distribution of the Cotrel Registrable Securities (i.e., underwritten public
sale, block trades or otherwise) will be determined jointly by Xxxx Xxxx Xxxxxx,
Xxxxx Xxxxxx Xxxxxx and the Company, subject to Section 2.12, on terms agreeable
to all such parties.
(c) The Company agrees to use its reasonable efforts to keep any
Registration continuously effective until the conclusion of the distribution of
the Registrable Securities covered by such Registration.
(d) If the managing (or sole) underwriter of any Registration
informs the Holders' Representative that the total number of Registrable
Securities intended to be included by the Selling Holders is such as to affect
adversely the success of such offering, then such Registration shall include the
number of Registrable Securities which, in the opinion of such underwriter, can
be sold without adversely affecting the success of the offering. In the case of
a Family Registration, such Registrable Securities to be included in the
Registration shall be allocated (i) pro rata among the Selling Holders on the
basis of the relative number of shares of the Company Common Stock which each
such Selling Holder has requested be sold pursuant to the Family Registration or
(ii) in such other manner as the Holders' Representative shall specify in
writing to the Company.
(e) Securities not held or otherwise Beneficially Owned by the
Holders (including securities to be originally offered by the Company) may be
included in a Registration Statement covering a Registration; provided, however,
that any such securities may be included only to the extent that, in the opinion
of the managing (or sole) underwriter of such registration, the total amount of
the securities to be so registered, when added to the total amount of
Registrable Securities to be registered, will not adversely affect the success
of the offering.
SECTION 2.02. Registration Procedures. In connection with the
Company's Registration obligations pursuant to this Article II, the Company
shall use its reasonable efforts to effect such registration to permit the sale
of Registrable Securities in accordance with the intended method of disposition
thereof, and, pursuant thereto, the Company shall:
(a) prepare and file with the SEC a Registration Statement, and use
its reasonable efforts to cause such Registration Statement to become
effective;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep such
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Registration Statement effective for the applicable period; cause the
Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities
Act; and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the terms of the offering;
(c) notify promptly the Holders' Representative (who, in turn, shall
notify counsel for the Selling Holders) and the managing (or sole)
underwriter (i) when the Prospectus or any supplement or amendment has
been filed and, with respect to the Registration Statement or any
post-effective amendment to the Registration Statement, when the same has
become effective, (ii) of any request by the SEC for amendments or
supplements to the Registration Statement or Prospectus or for additional
information or any receipt of SEC comments, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for any such purpose, (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation or threat of any proceedings
for such purpose, (v) of the happening of any event which requires the
making of any changes in the Registration Statement or Prospectus so that
such documents shall 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 (vi) of the
Company's determination that a post-effective amendment to the
Registration Statement would be appropriate;
(d) use its reasonable efforts to prevent the issuance of any stop
order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Prospectus and, if any such
order is issued, to obtain the withdrawal of any such order;
(e) furnish to the Holders' Representative (for distribution to each
Selling Holder) and the managing (or sole) underwriter at least one signed
copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(f) deliver to the Holders' Representative (for distribution to each
Selling Holder), to such counsel as designated by the Holders'
Representative on behalf of the Selling Holders and to any underwriter as
many copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto as such Persons may reasonably request
(the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the Holders' Representative, the
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Selling Holders and any underwriters in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto);
(g) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the Holders' Representative, the Selling
Holders, any underwriter and their respective counsel in connection with
the registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as
the underwriters reasonably request; keep each such registration or
qualification effective during the period the Registration Statement is
required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the Registration Statement; provided
that the Company shall not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or taxation in
any such jurisdiction where it is not then so subject;
(h) cooperate with the Holders' Representative, the Selling Holders
and the managing (or sole) underwriter to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in
such names as any such underwriter may request;
(i) upon the occurrence of any event contemplated by Section
2.02(c)(v), prepare a supplement or post-effective amendment to the
Registration Statement or Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, such Prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(j) enter into an underwriting agreement having customary terms
(including, in the opinion of the Company, customary underwriting
discounts or commissions);
(k) make available (during normal business hours and upon reasonable
notice) for inspection by (i) the Holders' Representative (on behalf of
the Selling Holders), (ii) any underwriter participating in any
disposition pursuant to the Registration and (iii) any attorney,
accountant or other agent retained by the Holders' Representative, such
Selling Holders or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
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requested by any such representative, underwriter, attorney, accountant or
other agent in connection with the Registration;
(l) use its reasonable efforts to insure the success of the
offering, including, without limitation, participation by the executive
officers of the Company in "road shows" or other marketing activities if
reasonably requested by the managing (or sole) underwriter; and
(m) use its reasonable efforts to list such Registrable Securities
on the New York Stock Exchange, Inc.
SECTION 2.03. Information from Selling Holders. It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to this Article II that the Holders' Representative on behalf of the
Selling Holders shall furnish to the Company such information regarding such
Selling Holders and the Registrable Securities held by them as the Company and
the managing (or sole) underwriter may from time to time request.
SECTION 2.04. Discontinuance of Dispositions. Upon the happening of
any event of the kind described in Section 2.02(c)(ii), (iii), (iv), (v) or
(vi), the Company shall give notice of such event to the Holders'
Representative, who shall, as soon as practicable, give such notice to the
Selling Holders. Each Selling Holder agrees that, upon receipt of such notice
from the Holders' Representative or from the Company, such Selling Holder shall
forthwith discontinue disposition of the Registrable Securities pursuant to the
Registration Statement until such Selling Holder's receipt of the copies of a
supplemented or amended Prospectus, or until it is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated, or deemed to
be incorporated, by reference in the Prospectus, and, if so directed by the
Holders' Representative or the Company, such Selling Holder shall deliver to the
Company all copies, other than permanent file copies then in such Selling
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
SECTION 2.05. Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, the Holders'
Representative, each Selling Holder, each Affiliate of such Selling Holder, and
each of their respective officers, directors, employees and agents and each
Person who controls the Holders' Representative or such Selling Holder or
Affiliate (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) from and against all losses, claims, damages,
liabilities and expenses (including reasonable counsel fees and expenses)
arising out of or relating to (i) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or in any
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preliminary Prospectus or (ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus, in the light of the
circumstances under which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities and expenses arise out of or relate to any
information relating to Selling Holders.
SECTION 2.06. Indemnification by Selling Holders. Each Selling
Holder agrees, severally but not jointly, to indemnify and hold harmless, to the
full extent permitted by law, the Company, its directors, its officers who sign
the Registration Statement and each Person who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
from and against any losses, claims, damages, liabilities and expenses
(including reasonable counsel fees and expenses) arising out of or relating to
(i) any untrue or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if such Selling
Holder shall have furnished any amendments or supplements thereto) or in any
preliminary Prospectus or (ii) any omission or alleged omission to state therein
a material fact required to be stated or necessary to make the statements
therein (in the case of a Prospectus, in the light of the circumstances under
which they were made) not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any information
concerning, or undertaking furnished by or on behalf of, such Selling Holder in
the Registration Statement or Prospectus, or any amendment or supplement
thereto, or any preliminary Prospectus.
SECTION 2.07. Delivery of Prospectus. The indemnity provisions in
Section 2.05 are subject to the condition that, insofar as they relate to any
untrue statement (or alleged untrue statement) or omission (or alleged omission)
made in a preliminary Prospectus or Prospectus but which was subsequently
eliminated or remedied in any amended Prospectus on file with the SEC at the
time the registration statement becomes effective or any amended Prospectus
filed with the SEC pursuant to Rule 424(b) or 424(c) (the "Final Prospectus"),
such indemnity provisions shall not inure to the benefit of any underwriter, or
any Selling Holder if the Company has previously delivered copies of such Final
Prospectus to such underwriter or the Holders' Representative (on behalf of such
Selling Holder) and if a copy of the Final Prospectus was not furnished to the
Person or entity asserting the loss, liability, claim or damage at or prior to
the time such action is required by the Securities Act.
SECTION 2.08. Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "indemnified party") shall (i) give
prompt notice to the Person against whom such indemnity is sought (the
"indemnifying party") of any claim with respect to which such indemnification is
sought and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided,
however, that any indemnified party entitled to indemnification hereunder shall
have the right to employ separate counsel and to participate in the defense of
such
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claim, but the fees and expenses of such counsel shall be paid by such
indemnified party unless (a) the indemnifying party has agreed to pay such fees
or expenses, (b) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such indemnified
party or (c) in the reasonable judgment of the indemnified party and the
indemnifying party, based upon advice of their respective counsel, a conflict of
interest may exist between such indemnified party and the indemnifying party
with respect to such claims (in which case, if the indemnified party notifies
the indemnifying party in writing that such indemnified party elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such indemnified party). If such defense is not assumed by the indemnifying
party, the indemnifying party shall not be subject to any liability for any
settlement made without its consent, which shall not be unreasonably withheld.
An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees and expenses of more
than one counsel for all indemnified parties indemnified by such indemnifying
party with respect to such claim, unless, in the reasonable judgment of any
indemnified party or indemnifying party based upon advice of their respective
counsel, a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of one
additional counsel.
SECTION 2.09. Contribution. (a) If the indemnification provided for
in Sections 2.05 and 2.06 from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party and indemnified parties, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 2.08, any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
(b) The parties hereto agree that it would not be just and equitable
if any contribution pursuant to this Section 2.09 were determined by pro rata
allocation or by any
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other method of allocation which does not take into account the equitable
considerations referred to in Section 2.09(a). 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.
SECTION 2.10. Selection of Investment Banks. The Company shall have
the right to select the investment banker or banks and managers to administer
and underwrite any offering required pursuant to the terms hereof.
SECTION 2.11. Limitations on Participation. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's securities on the basis provided in any
underwritten arrangements approved by the Company and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
custody agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 2.12. Registration Expenses. All Registration Expenses
incurred in connection with any Registration pursuant to this Agreement
(including any attempted, withdrawn, postponed or delayed Registration) shall be
paid by the Selling Holders on whose behalf such Registration is made or
attempted; provided, however, that if securities other than Registrable
Securities are included in a Registration Statement then the Selling Holders
shall only pay their proportional interest of the total Registration Expenses.
For purposes of this Agreement, "Registration Expenses" shall mean any and all
expenses incurred in connection with any Registration (or any attempted,
withdrawn, postponed or delayed Registration) or otherwise incident to the
performance of or compliance with this Article II, including, without
limitation, (i) all SEC and stock exchange registration and filing fees, (ii)
all fees and expenses of complying with state securities or blue sky laws, (iii)
all fees and disbursements of counsel for any underwriter (including, without
limitation, fees and disbursements of counsel for any underwriter in connection
with blue sky qualifications of Registrable Securities and determination of the
eligibility of Registrable Securities for investment under the laws of such
jurisdiction as the managing underwriter or the Company may indicate), (iv) all
printing, messenger and delivery expenses, (v) all fees and expenses incurred in
connection with the listing of Registrable Securities on the New York Stock
Exchange, Inc., (vi) all fees and disbursements of counsel for the Company and
of its independent public accountants, and (vii) underwriting discounts and
commissions, brokerage fees and transfer taxes, if any. The Selling Holders will
in any event pay all fees and disbursements of counsel, accountants or other
experts or advisors to the Selling Holders.
SECTION 2.13. Alternative Family Registration. (a) If the Family
Registration is not effective under the Securities Act on or prior to June 30,
1998 (including by reason of the Holders withdrawing from the Family
Registration prior to the effectiveness of the Registration Statement after
determining, in their reasonable opinion after consultation
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with the managing underwriter, that the likely price or volume of the offering
would be unsatisfactory given the circumstances at such time), then the Holders'
Representative, on behalf of the Holders of the Family Registrable Securities,
may make one written request to the Company for registration of the Family
Registrable Securities under and in accordance with the provisions of the
Securities Act on substantially equivalent terms as set forth herein, to be
negotiated by the parties at such time in light of the circumstances then
existing (the "Alternative Family Demand"). The method of distribution of the
Family Registrable Securities pursuant to a Registration effected as a result of
an Alternative Family Demand (i.e., underwritten public sale, block trades or
otherwise) will be determined jointly by the Holders' Representative and the
Company, subject to Section 2.12, on terms agreeable to both parties.
(b) If (i) a Registration is requested by the Holders'
Representative pursuant to the Alternative Family Demand, but is not effective
at a time reasonably prior to the date the Holders are required to pay capital
gains taxes in France for the 1998 tax year, and (ii) the failure of such
Registration to be effective results from a postponement of such Registration
requested by the Company pursuant to its rights relating to such demand, then
the Company shall assist the Holders in obtaining third-party financing on
commercially reasonable terms for the capital gains tax liability of the Holders
for the 1998 tax year arising from the transactions contemplated by the Stock
Exchange Agreement and the Company shall pay the borrowing costs incurred in
connection with such financing.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Notices. All notices and other communications given or
made pursuant hereto shall be in writing (including telecopier or facsimile or
similar writing) and shall be sent to the parties at the following addresses or
telecopier numbers (or at such other address or telecopier number for a party as
shall be specified by like notice, provided that notices of changes of address
or telecopier numbers shall be effective only upon receipt):
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(a) if to the Company:
Sofamor Xxxxx Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: X.X. Xxxxxxx,
President and
Chief Executive Officer
with copies to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx O'X. Xxxxxx
(b) if to any Holder, in care of the Holders' Representative:
Xxxxx-Xxxxxx Xxxxxx Plais
La Canadienne
Avenue X.X. Xxxxxxx
00000 Xx Xxxxxxx, Xxxxxx
Telecopy: 011-33-3-21-05-91-79
with copies to:
Xxxxxxxx & Associes
00 Xxx xx Xxxxxxxxxx
00000 Xxxxx
Xxxxxx
Telecopy: 011-33-1-53-83-74-01
Attention: Xxxxxxxxx Xxxxxxxx
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(c) if to the Holders' Representative:
Xxxxx-Xxxxxx Xxxxxx Plais
as aforesaid
with copies to:
Xxxxxxxx & Associes
as aforesaid
Such notices and other communications shall be deemed to have been duly given or
made as of the date delivered, mailed or sent if delivered personally or by
courier, mailed by registered or certified mail (postage prepaid, return receipt
requested) or sent by telecopier.
SECTION 3.02. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 3.03. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
SECTION 3.04. Entire Agreement. This Agreement and the Stock
Exchange Agreement constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, except as otherwise expressly provided
herein.
SECTION 3.05. Amendment; Waiver. This Agreement may not be amended
or modified except by an instrument in writing signed by the Company and the
Holders' Representative. Waiver of any term or condition of this Agreement shall
only be effective if in writing and shall not be construed as a waiver of any
subsequent breach or waiver of the same term or condition, or a waiver of any
other term or condition of this Agreement.
16
14
SECTION 3.06. Successors, Assigns and Transferees. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, successors and permitted assigns. No Holder or the
Holders' Representative may assign this Agreement without the prior written
consent of the Company.
SECTION 3.07. Governing Law. (a) This Agreement shall be governed by
the laws of the State of New York, excluding (to the greatest extent permissible
by law) any rule of law that would cause the application of the laws of any
jurisdiction other than the State of New York.
(b) Each Holder hereby (i) submits to the exclusive jurisdiction of
the state courts of the State of New York located in New York County and the
United States Federal District Court for the Southern District of New York for
the purpose of any action or proceeding arising out of or based upon this
Agreement or the subject matter hereof brought by the Company, its directors,
its officers who sign the Registration Statement and each Person who controls
the Company (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act or their respective heirs, legal representatives,
successors or assigns) and (ii) waives, and agrees not to assert by way of
motion, as a defense, or otherwise, in any such action or proceeding any claim
that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the
action or proceeding is brought in an inconvenient forum, that the venue of the
action or proceeding is improper, or that this Agreement or the subject matter
hereof or thereof may not be enforced in or by such court. Each Holder hereby
irrevocably appoints CT Corporation System as its authorized agent to receive
service of process on its behalf with respect to any such action or proceeding,
which service may be made on such agent in accordance with legal procedures
prescribed by such courts. Each Holder agrees that service of process upon CT
Corporation System and written notice of said service to the Holders'
Representative shall be deemed in every respect valid service of process upon
such Holder in any such action or proceeding and shall be taken and held to be
valid personal service upon such Holder. Each Holder further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment of CT Corporation System in full force and effect until the sixth
anniversary of the Closing Date.
SECTION 3.08. Counterparts; Governing Language. (a) This Agreement
may be executed in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
(b) The parties acknowledge that, at the request and for the benefit
of the Holders, this Agreement may be translated into French. The parties agree
that this English version shall in all respects be the controlling version of
this Agreement.
17
15
SECTION 3.09. The Holders' Representative. Each Holder hereby
acknowledges that he or she has in the Stock Exchange Agreement duly appointed
the Holders' Representative as its attorney-in-fact to act on its behalf and to
take any and all actions required or permitted to be taken by the Holders'
Representative under this Agreement. The Company shall be entitled to rely, as
being binding upon each Holder, upon any document or other paper believed by it
to be genuine and correct and to have been signed or sent by the Holders'
Representative, and the Company shall not be liable to any of the Holders for
any action taken or omitted to be taken by it in such reliance. All fees and
expenses of the Holders' Representative shall be paid by the Holders. The
Company shall in no event incur any liability for (i) any such fees or expenses
or (ii) any losses, damages or expenses arising from or related to, directly or
indirectly, any action (or failure to act) by the Holders' Representative.
18
16
IN WITNESS WHEREOF, the Company, the Holders' Representative and the
Holders have caused this Agreement to be executed as of the date first written
above in their individual capacities or by their respective representatives
thereunto duly authorized, as applicable.
/s/ Yves Xxxx Xxxxxx
-------------------------------------
Yves Xxxx Xxxxxx
*
-------------------------------------
Xxxxx-Xxxxxx Xxxxxx Plais
*
-------------------------------------
Xxxxx Xxxxxx
*
-------------------------------------
Xxxxxxxxx Xxxxxx Sandere
*
-------------------------------------
Xxxxx Xxxxxx Xxxxxx
*
-------------------------------------
Xxxxxxxx Xxxxxx
*
-------------------------------------
Xxxx-Xxxxx Xxxxxx
19
17
*
-------------------------------------
Xxxxxxxxx Xxxxxx Gauzan
*
-------------------------------------
Xxxxxxxxx Xxxxxx Xxxxxxx
*
-------------------------------------
Xxxxx-Xxxxxxxxx Xxxxxx Milliez
*By: /s/ Yves Xxxx Xxxxxx
--------------------------------
Yves Xxxx Xxxxxx
Attorney-in-fact
SOFAMOR XXXXX GROUP, INC.
By /s/ J. Xxxx Xxxxxxx
----------------------------------
Name: J. Xxxx Xxxxxxx
Title: Vice President and Treasurer
XXXXX-XXXXXX XXXXXX PLAIS, as the
Holders' Representative
/s/ Xxxxx-Xxxxxx Xxxxxx Plais
-------------------------------------
Name: Xxxxx-Xxxxxx Xxxxxx Plais
20
EXHIBIT A
ALLOCATION OF FAMILY REGISTRABLE SECURITIES
Allocation of
Holder Securities
------ -------------
Yves Xxxx Xxxxxx & Xxxxx Xxxxxx Xxxxxx 648,981
Xxxxx Xxxxxx 123,266
Xxxxxxxxx Xxxxxx 123,266
Xxxxx-Xxxxxx Xxxxxx Plais 120,611
Xxxxxxxx Xxxxxx 114,415
Xxxx-Xxxxx Xxxxxx 117,365
Xxxxxxxxx Xxxxxx Gauzan 123,266
Xxxxxxxxx Xxxxxx Xxxxxxx 114,415
Xxxxx-Xxxxxxxxx Xxxxxx Milliez 114,415
Total 1,600,000
