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REGISTRATION RIGHTS AGREEMENT
Dated as of June 20, 2002
by and among
ADVANCED MEDICAL OPTICS, INC.
and
AMO HOLDINGS, LLC,
as guarantor
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
BANC OF AMERICA SECURITIES LLC
as Representatives of the Initial Purchasers named herein
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of June 20, 2002 by and among ADVANCED MEDICAL OPTICS, INC., a
Delaware corporation (the "Company"), and AMO Holdings, LLC, a Delaware limited
liability company (the "Guarantor" and, together with the Company, the
"Issuers"), and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED ("Xxxxxxx
Xxxxx"), BANC OF AMERICA SECURITIES LLC ("Banc of America") and each other
Initial Purchaser set forth on Schedule A attached hereto (collectively, the
"Initial Purchasers"), for whom Xxxxxxx Xxxxx and Banc of America are acting as
representatives (the "Representatives").
This Agreement is made pursuant to the Purchase Agreement dated as of
June 13, 2002, by and among the Issuers, Allergan, Inc., a Delaware corporation
("Allergan") and the Initial Purchasers (the "Purchase Agreement"), which
provides for, among other things, the sale by the Company to the Initial
Purchasers of an aggregate of $200,000,000 principal amount of the Company's 9
1/4% Senior Subordinated Notes due 2010 (the "Notes") and the guarantees thereof
by Allergan and the Guarantor (the "Guarantees" and, together with the Notes,
the "Securities") as described in the Purchase Agreement. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed
to provide to the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" shall have the meaning set forth in Section 2(a) hereof.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Allergan" shall have the meaning set forth in the preamble to this
Agreement.
"Applicable Period" shall have the meaning set forth in Section 3(s)
hereof.
"Banc of America" shall have the meaning set forth in the preamble to
this Agreement.
"Broker-Dealer" shall mean any broker or dealer registered under the
Exchange Act.
"Business Day" shall mean a day that is not a Saturday, a Sunday or a
day on which banking institutions in New York, New York are required or
permitted to be closed.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company or any other
depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Effectiveness Target Date" shall have the meaning set forth in
Section 2(e) hereof.
"Event Date" shall have the meaning set forth in Section 2(e) hereof.
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended.
"Exchange Offer" shall mean the exchange offer by the Issuers of
Exchange Securities for Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean a Registration
Statement on an appropriate form under the Securities Act relating to the
Exchange Offer.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Securities" shall mean the $200,000,000 9 1/4% Senior
Subordinated Notes due 2010, issued by the Company, and the guarantees
thereof by the Guarantor, pursuant to, and entitled to the benefits of, the
Indenture (which shall be qualified under the TIA) and registered pursuant
to an effective Registration Statement
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under the Securities Act, to be offered to Holders of Securities in
exchange for Securities pursuant to the Exchange Offer, which shall be
identical to such Securities (except that (i) interest thereon shall accrue
from the last date on which interest was paid on such Securities or, if no
such interest has been paid, from the Issue Date and (ii) the transfer
restrictions thereon shall be eliminated).
"Guarantor" shall have the meaning set forth in the preamble to this
Agreement and also includes any of the Guarantor's successors and permitted
assigns.
"Holder" shall mean each of the Initial Purchasers, for so long as
they own any Transfer Restricted Securities, each of their direct and
indirect successors, assigns and transferees who become registered owners
of Transfer Restricted Securities under the Indenture and each
Participating Broker-Dealer that holds Exchange Securities for so long as
such Participating Broker-Dealer is required to deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities and
the Exchange Securities dated as of June 20, 2002 between the Issuers and
Allergan, on the one hand, and The Bank of New York, as trustee, on the
other hand, as the same may be amended from time to time in accordance with
the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(m) hereof.
"Issue Date" shall mean the date on which the Securities are
originally issued.
"Issuers" shall have the meaning set forth in the preamble to this
Agreement.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean, subject to Section 7(k), the Holders of
a majority of the aggregate principal amount of outstanding Transfer
Restricted Securities.
"Xxxxxxx Xxxxx" shall have the meaning set forth in the preamble to
this Agreement.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
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"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(s)hereof.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Transfer Restricted Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each case including
any material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(m) hereof.
"Registration Default" shall have the meaning set forth in Section
2(e) hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuers with this Agreement, including
without limitation: (i) all applicable SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable
fees and disbursements of one counsel for all the Holders that are Initial
Purchasers in connection with blue sky qualification of any of the Exchange
Securities or Transfer Restricted Securities) and compliance with the rules
of the NASD, (iii) all expenses incurred by the Issuers in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing any other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, if any, (v) the fees and disbursements of counsel for
the Issuers and of the independent certified public accountants of the
Issuers, including the
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expenses of any "cold comfort" letters required by or incident to such
performance or compliance with this Agreement, (vi) the fees and expenses
of the Trustee, and any exchange agent or custodian, (vii) all fees and
expenses incurred in connection with the listing, if any, of any of the
Transfer Restricted Securities on any securities exchange or exchanges, if
the Company, in its discretion, elects to make any such listing, (viii) the
reasonable fees and expenses of one counsel, if any, designated in writing
by the Majority Holders to act as counsel for the Holders of the Transfer
Restricted Securities in connection with a Shelf Registration Statement and
(ix) any fees and disbursements to be paid by the Issuers and the fees and
expenses of any special experts retained by the Issuers in connection with
any Shelf Registration Statement; but excluding fees of counsel to the
Holders and (other than as set forth in (ii) and (viii) above) underwriting
discounts and commissions and transfer taxes, if any, relating to the sale
or disposition of Transfer Restricted Securities by a Holder.
"Registration Statement" shall mean any registration statement
(including, without limitation, the Exchange Offer Registration Statement
and the Shelf Registration Statement) of the Issuers which covers any of
the Transfer Restricted Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and any material
incorporated by reference therein.
"Representatives" shall have the meaning set forth in the preamble to
this Agreement.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the United States Securities Act of 1933,
as amended.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf' Registration
Statement relating to a "shelf' offering in accordance with Rule 415 of the
Securities Act, or any
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similar rule that may be adopted by the SEC, pursuant to the provisions of
Section 2(b) hereof which covers all of the Transfer Restricted Securities
or all Private Exchange Securities, as the case may be, on an appropriate
form under the Securities Act.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
"Transfer Restricted Securities" shall mean each Security, if issued,
and each Private Exchange Security, if issued; provided, however, that each
Security or Private Exchange Security, as the case may be, shall cease to
be a Transfer Restricted Security when (i) with respect to a Security only,
such Security has been exchanged by a Person other than a Participating
Broker-Dealer in the Exchange Offer for an Exchange Security which is
entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Securities Act, (ii) with
respect to a Security only, following the exchange by a Participating
Broker-Dealer in the Exchange Offer of a Security for an Exchange Security,
such Exchange Security is sold to a purchaser who receives from such
Participating Broker-Dealer on or prior to the date of such sale a copy of
the Prospectus contained in the Exchange Offer Registration Statement,
(iii) such Security or Private Exchange Security, as the case may be, has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement, (iv) such Security or
Private Exchange Security, as the case may be, is distributed to the public
pursuant to Rule 144 under the Securities Act (or any similar provision
then in force, but not Rule 144A under the Securities Act) or has become
eligible for resale without restriction pursuant to Rule 144(k) under the
Securities Act, (v) such Security, Exchange Security or Private Exchange
Security, as the case may be, shall have been otherwise transferred by the
holder thereof and a new security not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent
disposition of such new security shall not require registration or
qualification under the Securities Act or any similar state law then in
force, or (vi) such Security or Private Exchange Security, as the case may
be, ceases to be outstanding.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. (i) To the extent not prohibited by any applicable
law or applicable policy of the SEC, the Issuers shall, for the benefit of the
Holders, (A) prepare and, on or prior to the date that is 60 days after the
Issue Date, file with the SEC an Exchange Offer Registration Statement covering
the offer by the Issuers to the Holders to exchange all of the Securities for a
like principal amount of Exchange Securities, (B) use their reasonable best
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efforts to cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the SEC on or prior to the date that is
150 days after the Issue Date, (C) use their reasonable best efforts to keep
such Registration Statement effective until the closing of the Exchange Offer
and (D) use their reasonable best efforts to, on or prior to the date that is
195 days after the Issue Date, issue Exchange Securities in exchange for all
Securities properly tendered prior thereto in the Exchange Offer. It is the
objective of such Exchange Offer to enable each Holder eligible and electing to
exchange Transfer Restricted Securities for Exchange Securities (assuming that
such Holder is not an affiliate of any Issuer within the meaning of Rule 405
under the Securities Act (each, an "Affiliate") or, if it is an Affiliate, that
it will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, and assuming that such Holder is not a
Broker-Dealer tendering Transfer Restricted Securities acquired directly from
the Issuers for its own account, and who acquired the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing (within the meaning of the Securities Act) the Exchange
Securities) and to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions on transfer under the Securities
Act and under state securities or blue sky laws.
(ii) In connection with the Exchange Offer, the Issuers shall:
(A) mail, or caused to be mailed, as promptly as practicable to
each Holder of record a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(B) keep the Exchange Offer open for acceptance for a period of
not less than 20 Business Days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(C) utilize the services of the Depositary for the Exchange
Offer;
(D) permit Holders to withdraw tendered Securities at any time
prior to 5:00 p.m. (New York time) on the last Business Day of the
Exchange Period;
(E) notify each Holder, in the letter of transmittal and related
documents or otherwise, that any Securities not tendered will remain
outstanding and continue to accrue interest but will not retain any
rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker Dealers as provided herein); and
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(F) otherwise comply in all material respects with all applicable
laws relating to the Exchange Offer.
(iii) If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Issuers upon the request
of any Initial Purchaser shall, to the extent not prohibited by any
applicable law or applicable policy of the SEC, simultaneously with the
delivery of the Exchange Securities in the Exchange Offer, issue and
deliver to such Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by such Initial Purchaser, a like principal amount of
debt securities of the Company, guaranteed by the Guarantor, issued
pursuant to, and entitled to the benefits of, the Indenture and identical
to the Exchange Securities, except that such securities shall bear
appropriate transfer restrictions (the "Private Exchange Securities").
(iv) The Private Exchange Securities shall be of the same series as,
and the Company shall seek to cause the CUSIP Service Bureau to issue the
same CUSIP numbers for the Private Exchange Securities as for, the Exchange
Securities. The Issuers shall not have any liability hereunder solely as a
result of such Private Exchange Securities not bearing the same CUSIP
number as the Exchange Securities.
(v) The Exchange Offer and the Private Exchange shall not be subject
to any conditions, other than (A) that, in the reasonable opinion of
counsel to the Issuers, the Exchange Offer or Private Exchange, as the case
may be, does not violate applicable law or any applicable policy of the
SEC, (B) that no action or proceeding shall have been instituted against
the Issuers or, to the knowledge of the Issuers, against any other Person
or, to the knowledge of the Issuers, threatened in any court or by any
governmental agency that would reasonably be expected to materially impair
the ability of the Issuers to proceed with the Exchange Offer or the
Private Exchange nor shall any material adverse development have occurred
in any such action or proceeding with respect to the Issuers, (C) that all
governmental approvals shall have been obtained which approvals the Company
deems necessary for the consummation of the Exchange Offer or Private
Exchange and (D) that the Transfer Restricted Securities shall be duly
tendered in accordance with the terms of the Exchange Offer. As soon as
practicable after the expiration of the Exchange Offer and/or the Private
Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Securities or portions thereof
properly tendered and not validly withdrawn pursuant to the Exchange
Offer or the Private Exchange; and
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(2) deliver, or cause to be delivered, to the Trustee for
cancellation all Securities or portions thereof so accepted for
exchange by the Issuers; and
(3) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, a new Exchange Security or
Private Exchange Security, as the case may be, equal in principal
amount to the principal amount of the Securities surrendered by such
Holder and accepted for exchange.
(vi) To the extent not prohibited by any law or applicable policy of
the SEC, the Issuers shall use their reasonable best efforts to consummate
the Exchange Offer as provided above, and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable
laws in connection with the Exchange Offer. Each Holder (including, without
limitation, any Holder who is a Broker-Dealer) of Securities who wishes to
participate in the Exchange Offer will be required, as a condition to its
participation in the Exchange Offer, to make certain customary written
representations in connection therewith, including representations that (A)
such Holder is not an Affiliate of any Issuer, or if it is an Affiliate,
that it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (B) if such
Holder is not a Broker-Dealer, it is not engaged in, and does not intend to
engage in, the distributions of Exchange Securities, (C) any Exchange
Securities to be received by it will be acquired in the ordinary course of
business, (D) at the time of the commencement of the Exchange Offer it has
no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Securities, and (E) if such Holder is a Participating Broker-Dealer, it
will deliver the Prospectus included in the Exchange Offer Registration
Statement in connection with the resale of Exchange Securities to the
extent it is subject to the prospectus delivery requirements of the SEC.
Such Holder will also be required to make such other representations as may
be necessary under applicable SEC rules, regulations or interpretations to
render available the use of the appropriate form of registration statement
under the Securities Act.
(vii) Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply,
modified as necessary, solely with respect to Transfer Restricted
Securities that are Private Exchange Securities, Exchange Securities held
by Participating Broker-Dealers and Transfer Restricted Securities entitled
to a Shelf Registration pursuant to the first paragraph of Section 2(b)
hereof.
(b) Shelf Registration. (i) In the event that
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(A) filing the Exchange Offer Registration Statement or consummation
of the Exchange Offer would not be permitted by applicable law or SEC policy,
(B) the Exchange Offer is not for any other reason consummated on or
prior to the date that is 195 days after the Issue Date, or
(C) any Holder of Securities notifies the Company 20 Business Days
after the commencement of the Exchange Offer that (1) due to a change in
applicable law or SEC policy it is not entitled to participate in the Exchange
Offer, (2) due to a change in applicable law or SEC policy it may not resell the
Exchange Securities to be acquired by it in the Exchange Offer to the public in
the United States without delivering a prospectus and the prospectus contained
in the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (3) it is a Broker-Dealer and owns Securities
acquired directly from the Company or an Affiliate of the Company
(any of the events specified in clauses (A) through (C) being a "Shelf
Registration Event"), then the Issuers shall, use their reasonable best efforts
to file prior to the later of (1) the date that is 60 days after the Issue Date
and (2) the date that is 30 days after the date of such Shelf Registration
Event, use their reasonable best efforts to cause the Shelf Registration
Statement to be declared effective by the SEC on or prior to the date that is 90
days after such Shelf Registration Statement was filed; provided, however, that
if the Issuers have not consummated the Exchange Offer on or prior to the date
that is 195 days after the Issue Date, then the Issuers shall use their
reasonable best efforts to file with the SEC on or prior to the date that is 255
days after the Issue Date a Shelf Registration Statement providing for the sale
by the Holders of all of the Transfer Restricted Securities, and shall use their
reasonable best efforts to have such Shelf Registration Statement declared
effective by the SEC as soon as practicable and, in any event, no later than the
date that is 90 days after such Shelf Registration Statement was first filed
with the SEC. No Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing such
information as the Company may, after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to be included
in such Shelf Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being effected agrees
to furnish to the Company all information with respect to such Holder necessary
to make any information previously furnished to the Company by such Holder not
materially misleading.
(ii) The Issuers agree to use their reasonable best efforts to keep
the Shelf Registration Statement continuously effective, supplemented and
amended until the second anniversary of the effective date of the Shelf
Registration Statement (subject to extension pursuant to the last paragraph of
Section 3 hereof) (or such shorter period that will terminate
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when all of the Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto or cease to be
outstanding or otherwise cease to be Transfer Restricted Securities) (the
"Effectiveness Period"). The Issuers shall not permit any securities other than
Transfer Restricted Securities to be included in the Shelf Registration. The
Issuers further agree, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Issuers for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Issuers agree to furnish
to the Holders of Transfer Restricted Securities covered by such Shelf
Registration Statement copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(a) and 2(b) hereof. Each
Holder shall pay all expenses of its counsel (other than as set forth otherwise
in this Agreement), all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Transfer
Restricted Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Transfer Restricted
Securities pursuant to an Exchange Offer Registration Statement or Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Transfer Restricted
Securities may legally resume. The Issuers will be deemed not to have used their
reasonable best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if either of them voluntarily takes any
action that would result in any such Registration Statement not being declared
effective or in the Holders of Transfer Restricted Securities covered thereby
not being able to exchange or offer and sell such Transfer Restricted Securities
during that period, unless such action is required by law.
(e) Liquidated Damages. (i) In the event that
(A) the applicable Registration Statement is not filed with the SEC on
or prior to the date specified herein for such filing,
(B) the applicable Registration Statement is not declared effective by
the SEC on or prior to the date specified herein for such effectiveness (the
"Effectiveness Target Date"),
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(C) the Exchange Offer is required to be consummated hereunder and the
Company fails to consummate the Exchange Offer on or prior to the date that is
195 days after the Issue Date with respect to the Exchange Offer Registration
Statement or
(D) the applicable Registration Statement is filed and declared
effective prior to the Effectiveness Target Date but shall thereafter cease to
be effective or usable in connection with the Exchange Offer or resales of
Transferred Restricted Securities, as the case may be, during the periods
specified herein without being immediately succeeded by a post-effective
amendment to such Registration Statement or an additional Registration Statement
covering the Transfer Restricted Securities which has been filed and declared
effective
(each such event referred to in clauses (A) through (D), a "Registration
Default"), then the Issuers shall pay liquidated damages to the Holders of
Transfer Restricted Securities as to which such Registration Default relates
("Liquidated Damages"), with respect to the first 90-day period (or portion
thereof) while a Registration Default is continuing immediately following the
occurrence of such Registration Default, in an amount equal to 0.25% per annum
of the principal amount of the Securities. The amount of Liquidated Damages will
increase by an additional 0.25% per annum of the principal amount of the
Securities for each subsequent 90-day period (or portion thereof) while a
Registration Default is continuing until all Registration Defaults have been
cured, up to an aggregate maximum amount of 1.0% per annum of the principal
amount of the Securities; provided that the Issuers shall in no event be
required to pay Liquidated Damages for more than one Registration Default at any
given time. Liquidated Damages shall be computed based on the actual number of
days elapsed during which any such Registration Default exists. Immediately
following the cure of a Registration Default, the accrual of Liquidated Damages
with respect to such Registration Default will cease.
(ii) The Company shall notify the Trustee within five Business Days
after each and every date on which an event occurs in respect of which
Liquidated Damages is required to be paid (an "Event Date"). Liquidated Damages
shall be paid in arrears by depositing with the Trustee, in trust, for the
benefit of the Holders of Transfer Restricted Securities, on or before the
applicable semiannual interest payment date, immediately available funds in sums
sufficient to pay the Liquidated Damages then due. The Liquidated Damages due
shall be payable in arrears on each interest payment date to the record Holder
of Securities entitled to receive the interest payment to be paid on such date
as set forth in the Indenture. Each obligation to pay Liquidated Damages shall
be deemed to accrue from, and including the day following, the applicable Event
Date.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Issuers acknowledge that any failure
by the Issuers to comply with its obligations under Section 2(a) and Section
2(b) hereof may result in material
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irreparable injury to the Initial Purchasers or any Holder for which there is no
adequate remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Issuers' obligations under Section 2(a) and Section
2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Issuers with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Issuers shall:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time periods specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Transfer Restricted Securities by the selling
Holders thereof and (iii) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof. The
Issuers shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must
provide information for inclusion therein (x) without such Holders being
afforded an opportunity to review such documentation (to the extent that it
relates to such Holder) a reasonable time prior to the filing of such
document or (y) if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object to the inclusion of such
information that relates to such Holder;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 (or any
similar provision then in force) under the Securities Act, and comply in
all material respects with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all securities covered
by each Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof described
in this Agreement (including sales by any Participating Broker-Dealer);
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(c) in the case of a Shelf Registration, (i) notify each Holder of
Transfer Restricted Securities included in any Shelf Registration
Statement, at least five Business Days prior to filing, that a Shelf
Registration Statement with respect to the Transfer Restricted Securities
is being filed, (ii) furnish to each Holder of Transfer Restricted
Securities, without charge, as many copies of each Prospectus, and any
amendment or supplement thereto and such other documents as such Holder may
reasonably request, in order to facilitate the disposition of the Transfer
Restricted Securities, and (iii) subject to the last paragraph of Section 3
hereof, hereby consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Transfer Restricted
Securities in connection with the offering and sale of the Transfer
Restricted Securities covered by such Prospectus or any amendment or
supplement thereto;
(d) in the case of a Shelf Registration, use their reasonable best
efforts to register or qualify, as may be required by applicable law, the
Transfer Restricted Securities under all applicable state securities or
"blue sky" laws of such jurisdictions by the time the applicable
Registration Statement is declared effective by the SEC as any Holder of
Transfer Restricted Securities covered by a Registration Statement shall
reasonably request in advance of such date of effectiveness, and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such jurisdiction
of such Transfer Restricted Securities owned by such Holder; provided,
however, that no Issuer shall be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation in
any jurisdiction where it is now so subject;
(e) in the case of (i) a Shelf Registration or (ii) Participating
Broker-Dealers who have notified the Company that they will be utilizing
the Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(s) hereof, notify each Holder of Transfer Restricted
Securities included in the Shelf Registration Statement, or such
Participating Broker-Dealers, as the case may be, their counsel, if any,
promptly and, if requested by such Holder, confirm such notice in writing
(if such notice was not originally given in writing) (A) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (B) of any request by
the SEC or any state securities authority for amendments and supplements to
a Registration Statement or Prospectus or for additional information after
the Registration Statement has become effective, (C) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (D) of the receipt by the Company of any
notification
-14-
with respect to the suspension of the qualification of the Transfer
Restricted Securities to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction or the initiation of any proceeding for
such purpose, (E) of the happening of any event or the failure of any event
to occur or the discovery of any facts or otherwise during the
Effectiveness Period or the Applicable Period, as the case may be, which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which causes such Registration
Statement or Prospectus to omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading and (F) the Company's reasonable determination
that a post-effective amendment to the Registration Statement would be
appropriate;
(f) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable;
(g) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Securities included in the Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders to facilitate the timely preparation and delivery of certificates
not bearing any restrictive legends representing Securities covered by such
Shelf Registration to be sold and relating to the subsequent transfer of
such Securities; and cause such Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such
names as the selling Holders may reasonably request;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance described in Section
3(e)(B), 3(e)(C), 3(e)(D), 3(e)(E) or 3(e)(F) hereof, prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that (subject to Section 3(a)), as thereafter
delivered to the purchasers of the Transfer Restricted Securities to whom a
Prospectus is being delivered by a Participating Broker-Dealer who has
notified the Company that it will be utilizing the Prospectus contained in
the Exchange Offer Registration Statement as provided in Section 3(s)
hereof, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and to notify each Holder or Participating Broker-
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Dealer, as applicable, to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event;
(j) use their reasonable best efforts to obtain a CUSIP number for all
Exchange Securities or Private Exchange Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(k) (i) cause the Indenture or the indenture provided for in Section
2(a) to be qualified under the United States Trust Indenture Act of 1939,
as amended (the "TIA"), in connection with the registration of the Transfer
Restricted Securities, (ii) cooperate with the Trustee or any trustee under
such indenture and the Holders to effect such changes to the Indenture or
such indenture as may be required for the Indenture or such indenture to be
so qualified in accordance with the terms of the TIA and (iii) execute, and
use their reasonable best efforts to cause the Trustee or any trustee under
such indenture to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture or such indenture to be so qualified in a
timely manner;
(l) in the case of a Shelf Registration, enter upon the request of any
Holders of a majority of the aggregate principal amount of outstanding
Transfer Restricted Securities included in a Shelf Registration Statement
into agreements (including underwriting agreements) and take all such
other customary actions in order to expedite or facilitate the disposition
of such Transfer Restricted Securities, and in such connection, (i) make
such representations and warranties to Holders of such Transfer Restricted
Securities and the underwriters (if any) with respect to the business of
the Company and its subsidiaries as then conducted and the Registration
Statement, in each case, as are customarily made by issuers to underwriters
in underwritten offerings, and confirm the same if and when requested by
the Holders of a majority of the aggregate principal amount of outstanding
Transfer Restricted Securities included in such Shelf Registration
Statement; (ii) if an underwriting agreement is entered into, obtain
opinions of counsel to the Company in form and substance reasonably
satisfactory to the underwriters, addressed to each of the underwriters,
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such underwriters; and (iii) if an underwriting agreement is
entered into, obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed
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to the Company and each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and such
other matters as reasonably requested by such underwriters. The above shall
be done at each closing in respect of the sale of Transfer Restricted
Securities, or as and to the extent required thereunder;
(m) if (i) a Shelf Registration is filed pursuant to Section 2(b) or
(ii) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, make available for
inspection by each selling Holder of Transfer Restricted Securities
included in the Shelf Registration Statement or such Participating
Broker-Dealer and each such person who would be an "underwriter" as a
result of either (A) the sale by such person of Securities covered by such
Shelf Registration Statement or (B) the sale during the Applicable Period
by a Participating Broker-Dealer of Exchange Securities (provided that a
Participating Broker-Dealer shall not be deemed to be an underwriter solely
as a result of it being required to deliver a prospectus in connection with
any resale of Exchange Securities) and any attorney, accountant or other
agent reasonably retained by any such person (collectively, the
"Inspectors") (provided that there shall not be more than one attorney and
not more than one accountant retained by all the Holders for this purpose),
at the offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and properties
of the Issuers and their subsidiaries (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees
of the Issuers and their subsidiaries to supply all information in each
case reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Company determines, in good
faith, to be confidential and any Records which it notifies the Inspectors
are confidential shall not be disclosed by the Inspectors to any other
Person unless (1) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration Statement,
(2) the disclosure is necessary in connection with any action, suit or
proceeding, (3) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (4) the
information in such Records has been made generally available to the
public. Each such Holder and each such Participating Broker-Dealer and any
Inspector will be required to agree that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the securities of
the Issuers unless and until such is made generally available to the
public. Each selling Holder of such Transfer Restricted Securities and each
such Participating Broker-Dealer and any Inspector will be required to
further agree that it will,
-17-
upon learning that disclosure of such Records is sought under (1) or (2)
above, give notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(n) use their reasonable best efforts to comply with all applicable
rules and regulations of the SEC so long as the provisions of this
Agreement are applicable and make generally available to its security
holders with regard to any applicable Registration Statement a combined
earnings statement satisfying the provisions of Section 11 (a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
(o) if an Exchange Offer or a Private Exchange is to be consummated,
upon proper delivery of Securities by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, shall
xxxx, or cause to be marked, on such Securities and on the books of the
Trustee, the Registrar (as defined in the Indenture) and, if necessary, the
Depositary, delivered by such Holders that such Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; but in no event shall such Securities be
marked as paid or otherwise satisfied solely as a result of being exchanged
for Exchange Securities or Private Exchange Securities in the Exchange
Offer or the Private Exchange, as the case may be;
(p) cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement participating in the disposition of
such Transfer Restricted Securities and one counsel acting on behalf of all
such sellers in connection with the filings, if any, required to be made
with the NASD;
(q) take all other reasonable steps necessary to effect the
registration of the Transfer Restricted Securities covered by a
Registration Statement contemplated hereby; and
(r) in the case of the Exchange Offer Registration Statement (A)
include in the Exchange Offer Registration Statement a section in the
Prospectus entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Representatives
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on behalf of the Initial Purchasers or their counsel, and which section
shall state that any Broker-Dealer that holds Transfer Restricted
Securities acquired for its own account as a result of market-making
activities or other trading activities (other than Securities acquired
directly from the Issuers or any Affiliate of any Issuer) (a "Participating
Broker-Dealer") may exchange such Transfer Restricted Securities pursuant
to the Exchange Offer and shall contain all other information with respect
to such sales by such Participating Broker-Dealers that the SEC may require
in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Participating Broker-Dealer or
disclose the amount of Transfer Restricted Securities held by such
Participating Broker-Dealer, except to the extent required by the SEC, (B)
furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without charge, as many
copies of the Prospectus included in the Exchange Offer Registration
Statement that has been declared effective, as such Participating
Broker-Dealer may reasonably request, (C) permit the use of the Prospectus
forming part of the Exchange Offer Registration Statement, by any Person
subject to the prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale or transfer of
the Exchange Securities covered by the Prospectus, (D) use their reasonable
best efforts to keep the Exchange Offer Registration Statement effective
and to amend and supplement the Prospectus contained therein in order to
permit such Prospectus to be lawfully delivered by all Persons subject to
the prospectus delivery requirements of the Securities Act for such period
of time as such Persons must comply with such requirements in order to
resell the Exchange Securities; provided, however, that such period shall
not be required to exceed 180 days (or such longer period if extended
pursuant to the last sentence of Section 3 hereof) (the "Applicable
Period"), and (E) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer the following provision, or a provision substantially
similar thereto:
"If the exchange offeree is a broker-dealer holding Securities
acquired for its own account as a result of market-making activities
or other trading activities (other than Securities acquired directly
from the Issuers or any Affiliate of any Issuer), it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of Exchange Securities received in respect
of such Securities pursuant to the Exchange Offer."
The Company may require each seller of Transfer Restricted Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such Transfer
Restricted Securities as the Com-
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pany may from time to time reasonably request in writing. The Company may
exclude from such registration the Transfer Restricted Securities of any seller
who fails to furnish in writing such information within a reasonable time (not
to exceed 10 Business Days) after receiving such request and shall be under no
obligation to compensate any such seller for any lost income, interest or other
opportunity forgone, or any liability incurred, as a result of the Company's
decision to exclude such seller.
In the case of (i) a Shelf Registration Statement or (ii) an Exchange
Offer Registration Statement only with respect to Participating Broker-Dealers
who are seeking to sell Exchange Securities and are required to deliver
Prospectuses and who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
Section 3(s) hereof, each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(e)(B), 3(e)(C), 3(e)(D), 3(e)(E) or 3(e)(F) hereof, such Holder or
Participating Broker-Dealer, as the case may be, shall forthwith discontinue
disposition of Transfer Restricted Securities or Exchange Securities, as the
case may be, pursuant to a Registration Statement until such Holder's or
Participating Broker-Dealer's, as the case may be, receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will either (i) destroy any Prospectuses, other than permanent file
copies, then in such Holder's possession that has been replaced by the Company
with more recently dated prospectuses or (ii) deliver to the Company (at the
Company's expense) all copies in such Holder's or Participating Broker-Dealer's,
as the case may be, possession, other than permanent file copies then in such
Holder's or Participating Broker-Dealer's, as the case may be, possession, of
the Prospectus covering such Transfer Restricted Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition of Transfer
Restricted Securities or Exchange Securities, as the case may be, pursuant to a
Registration Statement and an amendment or supplement to such Registration
Statement is required to permit the use of such Registration Statement in
connection with the disposition of Transfer Restricted Securities, the Company
shall use its reasonable best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the Registration
Statement and, in the case of an amendment, have such amendment declared
effective as soon as practicable and shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have made available
to the Holders or Participating Broker-Dealers, as the case may be, (A) copies
of the supplemented or amended Prospectus necessary to resume such dispositions
or (B) the Advice.
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4. Indemnification and Contribution. (a) Each of the Issuers shall
indemnify and hold harmless the Initial Purchasers and each Holder who
participates in an offering of Transfer Restricted Securities, and each Person,
if any, who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, covering Transfer Restricted Securities or Exchange
Securities, or the omission or alleged omission therefrom of 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 or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that (subject to
Section 4(d) below) any such settlement is effected with the prior written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of one counsel (in addition to any local
counsel) chosen as provided in Section 4(c) below) reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii) of
this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Initial Purchasers, such Holder with respect to such Initial Purchasers or
Holder, as the case may be, expressly for use in the Registration Statement (or
any amendment or supplement thereto) or any Prospectus (or any amendment or
supplement thereto); provided, further, that the foregoing indemnity with
respect to a preliminary prospectus in any Registration Statement shall not
inure to the benefit of any Holder (or
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to the benefit of any person controlling such Holder) from whom the person
asserting any such losses, claims, damages or liabilities purchased Transfer
Restricted Securities if (i) such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus was eliminated or
remedied in the final Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto to such Holder prior
to confirmation for the sale of such Transfer Restricted Securities to such
person by such Holder) and (ii) a copy of the final Prospectus (as so amended
and supplemented) was not furnished to such Person within the time required by
the Securities Act, unless such failure to deliver was a result of
non-compliance by the Company with Section 3(c) and the claims asserted by such
person do not include allegations of other untrue statements or omissions of
material facts made in the final Prospectus which allegations are upheld in a
final judgment.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, the Initial Purchasers and the other selling Holders
and each of their respective directors and officers and each Person, if any, who
controls any of the Issuers, the Initial Purchasers, any underwriter or any
other selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement or any Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such selling Holder with
respect to such Holder expressly for use in the Registration Statement, or any
such Prospectus; provided, however, that, in the case of the Shelf Registration
Statement, no such Holder shall be liable for any claims hereunder in excess of
the amount of net proceeds (before deducting fees and expenses) received by such
Holder from the sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 4(a) above, counsel to all the indemnified parties shall be
selected by the Representatives, and, in the case of parties indemnified
pursuant to Section 4(b) above, counsel to all the indemnified parties shall be
selected by the Company. An indemnifying party will be entitled to participate
in, and to the extent that it may wish, jointly with any other indemnifying
party similarly notified, assume the defense of, any such action, with counsel
reasonably satisfactory to the indemnified party. If the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall
-22-
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions arising out of the
same general allegations or circumstances. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the consent of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution is sought under this Section 4
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes a full and
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel, then such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 4(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45
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 such indemnified party
in accordance with such request prior to the date of such settlement.
(e) (i) If the indemnification provided for in Section 4(a), (b), (c)
and (d) is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the one
hand and the Initial Purchasers and the Holders on the other hand from their
initial sales of Transfer Restricted Securities (or in the case of Exchange
Securities that are Transfer Restricted Securities, the
-23-
sale of Securities for which such Exchange Securities were exchanged) or (ii) if
the allocation provided by clause (i) 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 Issuers on
the one hand and of the Initial Purchasers and the Holders on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
(ii) The relative fault of the Issuers, on the one hand, and the
Holders of Transfer Restricted Notes, the Participating Broker-Dealer or
the Initial Purchasers, as the case may be, 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
Issuers, by the Holder of Transfer Restricted Securities or the Initial
Purchasers, as the case may be, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(iii) Notwithstanding the provisions of this Section 4, no Holder
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities sold by it under the Shelf
Registration Statement exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(iv) The Issuers and the Holders of the Transfer Restricted Securities
and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 4.
(v) For purposes of this Section 4, each Person, if any, who controls
a Holder of Transfer Restricted Securities or the Initial Purchasers within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such other
Person, and each director of any Issuer, each Affiliate of any Issuer, each
executive officer of any Issuer who signed the Registration Statement, and
each Person, if any, who controls any Issuer within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the
same rights to contribution as such Issuer.
5. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (i)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (ii) completes and
-24-
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements. The Issuers shall be under no obligation to
compensate any Holder for lost income, interest or other opportunity foregone,
or other liability incurred, as a result of the Company's decision to exclude
such Holder from any underwritten registration if such Holder has not complied
with the provisions of this Section 5 in all material respects following 15
Business Days' written notice of non-compliance and the Company's decision to
exclude such Holder.
6. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell the securities covered by such Shelf Registration in an underwritten
offering. In any such underwritten offering, the underwriter or underwriters and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however, that
such underwriters and managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Reporting Requirement. So long as any of the Transfer Restricted
Securities are outstanding, the Issuers shall comply with the provisions of
Section 4.12 of the Indenture.
(b) No Inconsistent Agreements. The rights granted to the Holders
hereunder do not, and will not for the term of this Agreement, in any way
conflict with, and are not, and will not during the term of this Agreement be,
inconsistent with, the rights granted to the holders of the Issuers' other
issued and outstanding securities under any other agreements entered into by any
Issuer.
(c) Amendments and Waivers. The provisions of this Agreement,
including 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, except with the prior written consent of the Company and the
Majority Holders; provided, however, that no amendment, modification, or
supplement or waiver or consent to the departure with respect to the provisions
of Section 4 hereof shall be effective as against any Holder of Transfer
Restricted Securities or any Issuer unless consented to in writing by such
Holder of Transfer Restricted Securities or such Issuer, as the case may be.
(d) Notices. (i) All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, facsimile, or any courier guaranteeing overnight delivery (A)
if to a Holder, at the most current
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address given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 7(d), which address initially is,
with respect to the Initial Purchasers, as set forth in the Purchase Agreement;
and (B) if to the Issuers, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
(ii) All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt is confirmed, if sent by facsimile; and on the next Business Day,
if timely delivered to an air courier guaranteeing overnight delivery.
(iii) Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Issuers
and the Initial Purchasers, including, without limitation, and without the need
for an express assignment, subsequent Holders, provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder; provided, further, that nothing
herein shall be deemed to permit the assignment, transfer or other disposition
of Transferred Restricted Securities on violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities, in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted 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) Third Party Beneficiary. Each Holder shall be a third party
beneficiary of the agreements made hereunder between the Issuers, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) 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 an original and all of which taken
together shall constitute one and the same agreement.
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(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW; SUBMISSION TO JURISDICTION; TIME. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE
COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO
THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY. SERVICE OF ANY PROCESS,
SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO THE COMPANY AT THE
ADDRESS SET FORTH ABOVE SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST THE
COMPANY FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. THE
COMPANY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. A
FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
MAY BE ENFORCED IN ANY OTHER COURT TO WHOSE JURISDICTION THE COMPANY IS OR MAY
BE SUBJECT, BY SUIT UPON JUDGMENT. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Notes Held by the Issuers or Any of Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by any
Issuer or any Affiliate of any Issuer shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
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IN 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: Corporate Vice President
and Chief Financial Officer
AMO HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Secretary
Confirmed and accepted as of the date first
written above:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------
Name: J. Xxx Xxxxxxxx
Title: Director
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ADVANCED MEDICAL OPTICS, INC.
By:
-----------------------------------
Name:
Title:
AMO HOLDINGS, LLC
By:
-----------------------------------
Name:
Title:
Confirmed and accepted as of the date first
written above:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ J. Xxx Xxxxxxxx
-------------------------------------
Name: J. Xxx Xxxxxxxx
Title: Director