AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as
of December 10, 2009 between ALCON, INC., a company organized under the laws of
Switzerland (the “Company”), and NESTLÉ
S.A., a company organized under the laws of Switzerland (the “Selling
Shareholder”).
WHEREAS
the Company and the Selling Shareholder are parties to a Registration Rights
Agreement dated as of March 20, 2002 (the “Existing Registration Rights
Agreement”); and
WHEREAS
the parties hereto desire to amend and restate in its entirety the Existing
Registration Rights Agreement.
NOW,
THEREFORE, in consideration of the covenants and agreements of the Company and
the Selling Shareholder contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree that effective immediately upon the execution and delivery
of this Agreement by the parties hereto, the Existing Registration Rights
Agreement shall be amended and restated in its entirety as follows:
1. Definitions. As
used in this Agreement, the following terms shall have the respective meanings
ascribed to them below:
“Affiliate” of any
Person shall mean any Person that, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with such
Person.
“Agreement” shall have
the meaning specified in the preamble to this Agreement.
“Business Day” shall
mean any day other than a Saturday or Sunday on which banks are open to transact
business in the City of New York.
“Common Shares” shall
mean Common Shares, par value CHF 0.20 per share, of the Company and any other
capital stock or securities into which such Common Shares or any such securities
are reclassified or changed, including, without limitation, by reason of a
merger, consolidation, reorganization or recapitalization, or otherwise are
distributed with respect to Common Shares or any such securities.
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“Company” shall have
the meaning specified in the preamble to this Agreement.
“Demand Registration
Statement” shall have the meaning set forth in Section 2(a).
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and all rules and
regulations promulgated thereunder.
“Existing Registration Rights
Agreement” shall have the meaning specified in the recitals to this
Agreement.
“FINRA” shall mean the
Financial Industry Regulatory Authority, Inc.
“Incidental Registration
Statement” shall have the meaning set forth in Section 3(a).
“NYSE” shall mean the
New York Stock Exchange.
“Person” shall mean
any individual, corporation, partnership, company, limited liability company,
trust, joint venture, unincorporated organization or government or political
department or agency thereof or other entity of whatever nature.
“Registrable
Securities” shall mean the Common Shares of the Company. As to
any particular Registrable Securities, once issued, such securities shall cease
to be Registrable Securities if (i) such securities have been registered under
the Securities Act, the registration statement with respect to the sale of such
securities has become effective under the Securities Act and such securities
have been disposed of pursuant to such effective registration statement, (ii)
such securities have been distributed pursuant to Rule 144 or Rule 144A (or any
similar provision then in force) under the Securities Act, (iii) such
securities have been otherwise transferred, if new certificates or other
evidences of ownership for them not bearing a legend restricting further
transfer and not subject to any stop-transfer order or other restrictions on
transfer have been delivered by the Company and the subsequent disposition of
such securities does not require registration or qualification of such
securities under the Securities Act or any state securities laws then applicable
or (iv) such securities have ceased to be outstanding.
“Registration
Expenses” shall mean all expenses incident to the Company’s performance
of, or compliance with, this Agreement, including all registration and filing
fees and expenses (including SEC and stock exchange and FINRA fees), fees and
expenses of compliance with state securities or “blue sky” laws (including
reasonable fees and disbursements of counsel for any underwriters in connection
with “blue sky” qualifications of the Registrable Securities), printing
expenses, messenger and delivery expenses, fees and expenses incurred in
connection with the listing, if any, of the securities to be registered on each
securities exchange or national market system on which the Common Shares are
then listed, fees and disbursements of counsel for the Company and of the
independent certified public accountants of the Company (including the expenses
of any annual audit, special audit and “cold comfort” letters required by, or
incident to, such performance and compliance), the fees and disbursements
of
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underwriters
customarily paid by issuers or sellers of securities (including any expenses of
a “road show” in connection with an underwritten offering typically paid by
issuers of securities and, if applicable, the fees and expenses of any
“qualified independent underwriter” (and its counsel) that is required to be
retained in accordance with the rules and regulations of the FINRA), the
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration and the fees and expenses of other Persons
retained by the Company (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of Registrable
Securities by holders of such Registrable Securities).
“Registration
Statement” shall mean any Demand Registration Statement, Incidental
Registration Statement or Shelf Registration Statement, as
applicable.
“Required Registration
Statement” shall mean any Demand Registration Statement or Shelf
Registration Statement, as applicable.
“Securities Act” shall
mean the Securities Act of 1933, as amended, and all rules and regulations
promulgated thereunder.
“SEC” shall mean the
Securities and Exchange Commission.
“Selling Shareholder”
shall have the meaning specified in the preamble to this Agreement.
“Shelf Registration
Statement” shall mean a “shelf” registration statement filed by the
Company pursuant to the provisions of Section 4 with the SEC covering offers and
sales in accordance with Rule 415 under the Securities Act, or any similar rule
that may be adopted by the SEC (whether or not the Company is then eligible to
use Form F-3 or S-3), that covers some or all of the Registrable Securities, and
any amendments and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
“Suspension Period”
shall mean any period during which the Company fails to keep any Required
Registration Statement effective and usable for resale of Registrable Securities
held by any Selling Shareholder.
“Underwritten
Offering” shall mean an underwritten offering of the securities being
registered.
2. Demand Registration.
(a) At any time following the date of this Agreement, the
Selling Shareholder shall have the right to request in writing (which request
shall specify the Registrable Securities intended to be disposed of and the
intended method of distribution thereof) that the Company register any and all
of the Selling Shareholder’s Registrable Securities by filing with the SEC a
registration statement covering such Registrable Securities (a “Demand Registration
Statement”). Upon the receipt of such a request, the Company
shall, not later than the 45th calendar day after the receipt of such a request,
cause to be filed a Demand Registration Statement providing for the registration
under the Securities Act of the Registrable
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Securities
which the Company has been so requested to register by the Selling Shareholder,
to the extent necessary to permit the disposition of such Registrable Securities
in accordance with the intended methods of distribution thereof specified in
such request, and shall use its best efforts to have such Demand Registration
Statement declared effective by the SEC or otherwise become effective as soon as
practicable thereafter (but in no event later than the 75th calendar day after
the receipt of such a request) and to keep such Demand Registration Statement
continuously effective for 120 calendar days following the date on which such
Demand Registration Statement is declared effective by the SEC or has otherwise
become effective or such shorter period terminating when all the Registrable
Securities covered by such Demand Registration Statement have been sold pursuant
thereto (including, if necessary, by filing with the SEC a post-effective
amendment or a supplement to the Demand Registration Statement or the related
prospectus or any document incorporated therein by reference or by filing any
other required document or otherwise supplementing or amending the Demand
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form under the Securities Act used by the Company
for such Demand Registration Statement or by the Securities Act, any state
securities or “blue sky” laws, or any other rules and regulations
thereunder).
(b) A Demand
Registration Statement shall be deemed not to have become effective (and the
related registration shall be deemed not to have been effected) unless it has
been declared effective by the SEC or otherwise becomes effective as provided by
the Securities Act; provided, however, that if,
after it has been declared (or becomes) effective, the offering of any
Registrable Securities pursuant to such Demand 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 (other than any such stop
order or injunction issued as a result of the inclusion in such Demand
Registration Statement of any information supplied in writing to the Company for
inclusion therein by the Selling Shareholder) such Demand Registration Statement
shall be deemed not to have become effective.
(c) The
Selling Shareholder may only make five demands under
Section 2(a). Any demand by the Selling Shareholder under
Section 2(a) shall be for the registration of at least (i) 5% of the total
number of Common Shares of the Company outstanding at the time such demand is
made; and (ii) the aggregate public offering price for the Registrable
Securities included in such demand (based on the closing sale price of the
Common Shares on the NYSE, or such other exchange or market on which the Common
Shares are principally listed or quoted, if the Common Shares cease to be listed
on the NYSE, on the last trading day prior to the delivery of the request) shall
be at least $250,000,000.
(d) If the
Selling Shareholder desires to sell Registrable Securities in an Underwritten
Offering pursuant to a Demand Registration Statement filed under this Section 2,
the underwriter(s), including the managing underwriter(s), shall be selected by
the Selling Shareholder, which underwriter(s) and managing underwriter(s) shall
be reasonably satisfactory to the Company.
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(e) No other
Person, including the Company or any subsidiary of the Company, shall be
permitted to offer securities under any Demand Registration Statement filed
pursuant to this Section 2 unless the Selling Shareholder consents in
writing.
3. Incidental
Registration. (a) If at any time the Company
proposes to register under the Securities Act any Common Shares whether or not
for sale for its own account (and not solely in connection with a sale of
warrants or other rights to purchase, or securities convertible into or
exchangeable for, Common Shares and other than (x) any registration
relating to any employee benefit or similar plan, any dividend reinvestment
plan, or any acquisition by the Company or (y) pursuant to a registration
statement filed in connection with an exchange offer), the Company shall give
written notice to the Selling Shareholder at least 20 calendar days prior to the
initial filing of a registration statement with the SEC pertaining thereto (an
“Incidental
Registration Statement”) informing the Selling Shareholder of its intent
to file such Incidental Registration Statement and of the Selling Shareholder’s
right under this Section 3 to request the registration of the Registrable
Securities held by the Selling Shareholder. Upon the written request
of the Selling Shareholder made within 10 calendar days after any such notice is
received (which request shall specify the Registrable Securities intended to be
disposed of by the Selling Shareholder and the intended method of distribution
thereof), the Company shall use its best efforts to effect the registration
under the Securities Act of all Registrable Securities which the Company has
been so requested to register by the Selling Shareholder, to the extent required
to permit the disposition of the Registrable Securities so requested to be
registered (including, if necessary, by filing with the SEC a post-effective
amendment or a supplement to the Incidental Registration Statement or the
related prospectus or any document incorporated therein by reference or by
filing any other required document or otherwise supplementing or amending the
Incidental Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form under the Securities Act used
by the Company for such Incidental Registration Statement or by the Securities
Act or by any other rules and regulations thereunder).
(b) If a
registration pursuant to this Section 3 involves an Underwritten Offering and
the underwriter or the managing underwriter(s), as the case may be, of such
Underwritten Offering shall inform the Company and the Selling Shareholder on or
before the date five days prior to the date then scheduled for such offering,
that, in its opinion, the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during the time of)
such offering within a proposed price range without adversely affecting the
distribution of the securities being offered, then the Company will include in
such registration only the amount of Registrable Securities and other securities
that the underwriter or managing underwriter(s), as the case may be, has advised
can be sold in (or during the time of) such offering within such price range;
provided, however, that the
Company shall be required to include in such required
registration: first, all the
securities initially proposed to be sold pursuant to such Incidental
Registration Statement by the Company (in the case of a primary offering by the
Company) and second, the amount of
Registrable Securities and other securities requested to be included in such
registration that the Company is so advised can be sold in (or during the time
of) such offering, allocated pro rata among the Selling Shareholder
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and other
securityholders of the Company requesting such registration on the basis of the
number of Registrable Securities and other securities requested to be included
by such other securityholders.
(c) Nothing
in this Section 3 shall create any liability on the part of the Company to the
Selling Shareholder if the Company in its sole discretion should decide not to
file an Incidental Registration Statement proposed to be filed pursuant to
Section 3 or to withdraw such registration statement subsequent to its
filing, regardless of any action whatsoever that the Selling Shareholder may
have taken, whether as a result of this issuance by the Company of any notice
hereunder or otherwise.
4. Additional Rights of Selling
Shareholder. (a) At any time following the
date of this Agreement, the Selling Shareholder shall have the right to request
in writing (which request shall specify the Registrable Securities intended to
be disposed of and the intended method of distribution thereof) that the Company
register any or all of the Selling Shareholder’s Registrable Securities by
filing with the SEC a Shelf Registration Statement covering such Registrable
Securities. Upon the receipt of such a request, the Company shall,
not later than the 45th calendar day after the receipt of such a request, cause
to be filed a Shelf Registration Statement providing for the registration under
the Securities Act of the Registrable Securities which the Company has been so
requested to register by the Selling Shareholder, to the extent necessary to
permit the disposition of such Registrable Securities in accordance with the
intended methods of distribution thereof specified in such request, and shall
use its best efforts to have such Shelf Registration Statement declared
effective by the SEC or otherwise become effective as soon as practicable
thereafter (but in no event later than the 75th calendar day after the receipt
of such a request) and to keep such Shelf Registration Statement continuously
effective during the period from the date a Shelf Registration Statement is
declared effective by the SEC or otherwise becomes effective as provided by the
Securities Act until such Shelf Registration Statement has been effective for
365 calendar days, exclusive of any and all Suspension Periods with respect to
such Shelf Registration Statement.
(b) A
Suspension Period with respect to any Shelf Registration Statement shall
commence on and include the date that the Company gives notice that any Shelf
Registration Statement is no longer effective or usable for resales of
Registrable Securities of the Selling Shareholder to and including the date when
the Selling Shareholder covered by such Shelf Registration Statement either
receives the copies of the supplemented or amended prospectus or issuer free
writing prospectus contemplated by Section 7(j) or is advised in writing by the
Company that the use of the prospectus or issuer free writing prospectus may be
resumed.
(c) No
incidental or piggyback registration rights shall be available to any Person
(including the Company) with respect to the Shelf Registration Statement, and no
Person (including the Company) shall have the right to have any securities other
than the Registrable Securities included therein or registered
thereon.
5. Registration
Expenses. The Company shall pay all Registration Expenses in
connection with each registration pursuant to Sections 2, 3 and 4, whether
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or not
the Registration Statement becomes effective, and whether all, none or some of
the Registrable Securities are sold pursuant to the Registration
Statement. The Selling Shareholder shall pay all discounts and
commissions payable to underwriters, selling brokers, managers or other similar
Persons related to the sale or disposition of the Selling Shareholder’s
Registrable Securities pursuant to any Required Registration Statement or any
Incidental Registration Statement. The Selling Shareholder shall be
responsible for the fees and legal expenses of any legal counsel, accountants or
other agents retained by Selling Shareholder and all other out-of-pocket
expenses incurred by the Selling Shareholder in connection with any registration
under this Agreement.
6. Restrictions on Public Sale
by Selling Shareholder and the Company. (a) If
requested by the underwriter or managing underwriter(s) in any Underwritten
Offering by the Selling Shareholder of Common Shares, each party hereto shall
agree not to effect any public sale or distribution of Common Shares during the
14-day period prior to, and during the 90-day period beginning on, the date of
sale of securities in connection with such Underwritten Offering (except
pursuant to such registration statement if the Selling Shareholder is entitled
to include securities in such registration statement).
(b) If
requested by the underwriter or managing underwriter(s) in any Underwritten
Offering or by the Selling Shareholder in any offering pursuant to a Required
Registration Statement (whether or not an Underwritten Offering), the Company
shall agree not to effect any public sale or distribution of Common Shares (or
of any securities convertible into or exchangeable for Common Shares) during the
14-day period prior to, and during the 90-day period beginning on, the date of
sale of securities in connection with such offering.
7. Registration
Procedures. In connection with the obligations of the Company
pursuant to Sections 2, 3 and 4, the Company shall use its best efforts to
effect or cause to be effected the registration under the Securities Act of the
Registrable Securities entitled to be included in such registration in order to
permit the sale of such Registrable Securities (in accordance with their
intended method or methods of distribution, in the case of a Required
Registration Statement), and the Company shall:
(a) (i)
prepare and file a Registration Statement with the SEC (within the time period
specified in Section 2 or 4, as applicable, in the case of a Required
Registration Statement) which Registration Statement (x) shall be on a form
selected by the Company for which the Company qualifies, (y) shall be available
for the sale or exchange of the Registrable Securities in accordance with the
intended method or methods of distribution, in the case of a Required
Registration Statement, and (z) 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, (ii) use its best efforts
to cause such Registration Statement to become effective and remain effective in
accordance with Section 2 or 4, as applicable, in the case of a Required
Registration Statement, and (iii) cause each Registration Statement and the
related prospectus and any amendment or supplement thereto and any issuer free
writing prospectus, as of the effective date of such Registration Statement,
amendment, supplement or issuer free writing prospectus (x) to comply in all
material respects with
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any
requirements of the Securities Act and the rules and regulations of the SEC and
(y) not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the light of the circumstances under which they were
made, in the case of such prospectuses and supplements);
(b) in the
case of a Required Registration Statement, and subject to Section 7(j), prepare
and file with the SEC such amendments and post-effective amendments to each such
Required Registration Statement as may be necessary to keep such Required
Registration Statement effective for the applicable period; cause each
prospectus forming part of such Required Registration Statement to be
supplemented by any required prospectus supplement or issuer free writing
prospectus, and as so supplemented to be filed pursuant to Rule 424 or Rule
433, as applicable, under the Securities Act; and comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
covered by each Required Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the Selling
Shareholder, as set forth in such Registration Statement;
(c) furnish
to the Selling Shareholder and to each underwriter of an Underwritten Offering
of Registrable Securities covered by a Registration Statement, if any, without
charge, as many copies of each prospectus forming part of such Registration
Statement, including each preliminary prospectus and any issuer free writing
prospectus, and any amendment or supplement thereto and such other documents as
the Selling Shareholder or the underwriter or managing underwriter(s), as the
case may be, may reasonably request in order to facilitate the disposition of
such Registrable Securities in accordance with the plan of distribution
described in such Registration Statement; and the Company hereby consents to the
use of such prospectus, including each such preliminary prospectus and any
issuer free writing prospectus, by the Selling Shareholder and each underwriter,
if any, in connection with the offering and sale of such Registrable
Securities;
(d) (i) use
its best efforts to register or qualify the Registrable Securities covered by a
Registration Statement, no later than the time such Registration Statement is
declared effective by the SEC or otherwise becomes effective, under all
applicable state securities or “blue sky” laws of such jurisdictions as the
underwriter or managing underwriter(s), as the case may be, or the Selling
Shareholder shall reasonably request; (ii) keep each such registration or
qualification effective during the period such Registration Statement is
required to be kept effective (in the case of a Required Registration
Statement); and (iii) do any and all other acts and things which may be
reasonably necessary or advisable to enable each underwriter, if any, and the
Selling Shareholder to consummate the disposition in each such jurisdiction of
the Registrable Securities covered by such Registration Statement; provided, however, that the
Company shall not be required to register or qualify any Registrable Securities
in any jurisdiction if registration or qualification in such jurisdiction would
subject the Company to unreasonable burden or expense or, in the case of an
Underwritten Offering, would unreasonably delay the commencement of such
Underwritten Offering; provided, further, that the
Company shall not be obligated to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to
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taxation
in respect of doing business in any jurisdiction in which it is not otherwise so
subject or to consent to be subject to general service of process (other than
service of process in connection with such registration or qualification or any
sale of Registrable Securities in connection therewith) in any such
jurisdiction;
(e) notify
the Selling Shareholder promptly in writing (i) when a Registration Statement
has become effective and when any post-effective amendment or supplement thereto
becomes effective, (ii) of the issuance by the SEC or any state securities
authority of any stop order, injunction or other order or requirement suspending
the effectiveness of a Registration Statement or the initiation of any
proceeding for that purpose, (iii) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby pursuant to any agreement to which the Company is a party, the
representations and warranties of the Company contained in such agreement cease
to be true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of such
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (iv) of the happening of any event during the
period a Required Registration Statement is required to be kept in effect as a
result of which such Registration Statement or the related prospectus or any
issuer free writing prospectus contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading (in the light of the circumstances
under which they were made, in the case of a prospectus);
(f) furnish
counsel for the underwriters, if any, and for the Selling Shareholder with
copies of any request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and prospectus or issuer
free writing prospectus or for additional information;
(g) use its
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible
time;
(h) upon
request, furnish to the underwriter or managing underwriter(s), as the case may
be, of an Underwritten Offering of Registrable Securities, without charge, at
least one signed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits; and furnish to the Selling
Shareholder, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including exhibits but
without documents incorporated therein by reference, unless
requested;
(i) cooperate
with the Selling Shareholder and the underwriter or managing underwriter(s), as
the case may be, of an Underwritten Offering of Registrable Securities, 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 (consistent with
the provisions of the governing documents thereof) and registered in such names
as the Selling Shareholder or the underwriter or managing underwriter(s), as the
case may be, of an Underwritten
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Offering
of Registrable Securities, if any, may reasonably request at least three
Business Days prior to any sale of Registrable Securities;
(j) upon the
occurrence of any event contemplated by Section 7(e)(iv), during the period in
which a Registration Statement is required to be kept in effect, use best
efforts to prepare a supplement or post-effective amendment to a Registration
Statement, the related prospectus or any issuer free writing prospectus, or any
document incorporated therein as thereafter delivered to the purchasers of the
Registrable Securities covered by such Registration Statement, such that such
prospectus or issuer free writing prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made in the case of a prospectus, not
misleading;
(k) enter
into customary agreements (including, in the case of an Underwritten Offering,
underwriting agreements in customary form, and including provisions with respect
to indemnification and contribution in customary form and consistent with the
provisions relating to indemnification and contribution contained herein) and,
in the case of a Registration Statement relating to a secondary offering filed
at the request of the Selling Shareholder, take all other customary and
appropriate actions in order to expedite or facilitate the disposition of the
Registrable Securities covered by a Registration Statement as shall be requested
by the Selling Shareholder (provided that, in the
event of any registration that is not part of an Underwritten Offering, no such
agreement or action shall be required to be taken if it is unduly burdensome to
the Company), and in connection therewith:
(i) make such
representations and warranties to the Selling Shareholder and the underwriters,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(ii) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be satisfactory to the Selling
Shareholder and, in connection with an Underwritten Offering, reasonably
satisfactory to the underwriter or managing underwriter(s), as the case may be)
addressed to the Selling Shareholder and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be requested by the Selling
Shareholder and, in connection with an Underwritten Offering, reasonably
requested by the underwriter or managing underwriter(s), as the case may
be;
(iii) obtain
“cold comfort” letters and updates thereof from the Company’s independent
certified public accountants addressed to the Selling Shareholder and the
underwriters, if any, which letters shall be customary in form and shall cover
matters of the type customarily covered in “cold comfort” letters to
underwriters in connection with primary underwritten offerings; and
(iv) deliver
such customary documents and certificates as may be requested by the Selling
Shareholder and, in connection with an Underwritten Offering,
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reasonably
requested by the underwriter or managing underwriter(s), as the case may
be;
(l) make
available for inspection by representatives of the Selling Shareholder and any
underwriters participating in any disposition pursuant to a Registration
Statement and their respective counsel and/or accountants, all relevant
financial and other records, pertinent corporate documents and properties of the
Company and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representative, underwriter, counsel or accountant in connection with a
Registration Statement;
(m) (i)
within a reasonable time prior to the filing of any Registration Statement, any
related prospectus or issuer free writing prospectus, any amendment to a
Registration Statement or amendment or supplement to a prospectus or issuer free
writing prospectus, provide copies of such document to the Selling Shareholder
and to counsel to the Selling Shareholder and to the underwriter or managing
underwriter(s), as the case may be, of an Underwritten Offering of Registrable
Securities and consider in good faith such reasonable changes in any such
document prior to or after the filing thereof as counsel to the Selling
Shareholder or such underwriter(s), if any, may request and make available such
of the representatives of the Company as shall be reasonably requested by the
Selling Shareholder or such underwriter(s) for discussion of such document; and
(ii) within a reasonable time prior to the filing of any document which is to be
incorporated by reference into a Registration Statement or a related prospectus
or issuer free writing prospectus, provide copies of such document to counsel
for the Selling Shareholder, consider in good faith such reasonable changes in
such document prior to or after the filing thereof as counsel for the Selling
Shareholder shall request and make available such of the representatives of the
Company as shall be reasonably requested by such counsel for discussion of such
document;
(n) use its
best efforts to cause all Registrable Securities covered by a Required
Registration Statement to be listed on the NYSE or such other exchanges or
market systems on which the Common Shares of the Company is then listed or
quoted;
(o) provide a
CUSIP number for all Registrable Securities covered by a Registration Statement
no later than the effective date of such Registration Statement;
(p) otherwise
use its best efforts to comply with all applicable rules and regulations of the
SEC and NYSE and make available to its securityholders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(q) cooperate
and assist in any filing required to be made with FINRA and in the performance
of any due diligence investigation by any underwriter (including any “qualified
independent underwriter” that is required to be retained in accordance with the
rules and regulations of the FINRA).
8. Obligations of Selling
Shareholder. (a) The Selling Shareholder shall, as
a condition to the registration obligations with respect to the Selling
Shareholder provided herein, furnish to the Company such information regarding
the Selling
12
Shareholder,
the ownership of Registrable Securities by the Selling Shareholder and the
proposed distribution by the Selling Shareholder of such Registrable Securities
as the Company may from time to time reasonably request in writing.
(b) Upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 7(e)(iv), the Selling Shareholder shall forthwith
discontinue disposition of Registrable Securities pursuant to the affected
Registration Statement until the Selling Shareholder’s receipt of the copies of
the supplemented or amended prospectus or issuer free writing prospectus
contemplated by Section 7(j), and, if so directed by the Company, the Selling
Shareholder shall deliver to the Company (at the expense of the Company) or
destroy all copies in its possession, other than permanent file copies then in
the Selling Shareholder’s possession, of the prospectus or issuer free writing
prospectus covering such Registrable Securities which was current at the time of
receipt of such notice.
(c) The
Selling Shareholder may not participate in any underwritten offering under
Section 2, 3 or 4 hereof unless it completes and executes all customary
questionnaires, powers of attorney, custody agreements, underwriting agreements
and other customary documents required under the customary terms of such
underwriting arrangements. In connection with any underwritten
offering under Section 2, 3 or 4 hereof, the Selling Shareholder shall be a
party to the underwriting agreement with the underwriters and may be required to
make certain customary representatives and warranties and provide certain
customary indemnification for the benefit of the underwriters; provided that the
Selling Shareholder shall not be required to make representations and warranties
with respect to the Company and its subsidiaries or their business and
operations and shall not be required to agree to any indemnity or contribution
provisions less favorable to the Selling Shareholder than those set forth
herein.
9. Indemnification. (a) The
Company shall indemnify and hold harmless the Selling Shareholder and its
Affiliates, directors, officers and employees and each Person, if any, who
controls the Selling Shareholder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against
any and all losses, liabilities, claims, damages, judgments and reasonable
expenses whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Registrable Securities were registered
under the Securities Act or any issuer free writing prospectus relating to such
Registrable Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact contained in any prospectus or issuer free writing prospectus
(or any amendment or supplement thereto) including all documents incorporated
therein by reference, 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;
13
(ii) against
any and all losses, liabilities, claims, damages, judgments and reasonable
expenses whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any other claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of the
Company; and
(iii) against
any and all reasonable expense whatsoever, as incurred (including, subject to
Section 9(c), fees and disbursements of counsel) incurred in investigating,
preparing or defending against any litigation, investigation or proceeding by
any governmental agency or body, commenced or threatened, in each case whether
or not such Person is a party, 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)
above;
provided, however, that this
indemnity agreement does not apply with respect to any loss, liability, claim,
damage, judgment or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission (A) made in reliance upon and
in conformity with written information furnished to the Company by the Selling
Shareholder in writing for use in a Registration Statement (or any amendment
thereto) or any related prospectus (or any amendment or supplement thereto) or
any issuer free writing prospectus or (B) if such untrue statement or omission
or alleged untrue statement or omission was corrected in an amended or
supplemented Registration Statement, prospectus or issuer free writing
prospectus and the Company had furnished copies thereof to the Selling
Shareholder and any underwriter acting on its behalf from which the Person
asserting such loss, liability, claim, damage, judgment or expense purchased the
securities that are the subject thereof prior to the date of sale by such
underwriter or the Selling Shareholder to such Person.
(b) Indemnification by Selling
Shareholder. The Selling Shareholder shall indemnify and hold
harmless the Company, and its Affiliates, directors, officers and employees
(including each officer of the Company who signed the Registration Statement)
and each Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any and all
losses, liabilities, claims, damages, judgments and expenses described in the
indemnity contained in Section 9(a) (provided that any settlement of the type
described therein is effected with the written consent of the Selling
Shareholder) as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Selling
Shareholder in writing for use in such Registration Statement (or any amendment
thereto) or such prospectus (or any amendment or supplement thereto) or any
issuer free writing prospectus; provided, however, that the
Selling Shareholder shall not be required to provide indemnification in any
amount in excess of the amount by which (x) the total price at which the
Registrable Securities sold by the Selling Shareholder and distributed to the
public were offered to the public exceeds (y) the amount of any damages which
the
14
Selling
Shareholder has otherwise been required to pay and has paid by reason of such
untrue or alleged untrue statement or omission or alleged
omission. The Company shall be entitled, to the extent customary, to
receive indemnification and contribution from underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, to the same extent as provided above with respect to
information so furnished in writing by such Persons specifically for inclusion
in any prospectus, issuer free writing prospectus or Registration
Statement.
(c) Conduct of Indemnification
Proceedings. Each indemnified party shall give prompt notice
to each indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party or parties shall not relieve it or them from any liability
which it or they may have under this indemnity agreement, except to the extent
that the indemnifying party is materially prejudiced by such failure to give
notice. If the indemnifying party or parties so elects within a
reasonable time after receipt of such notice, the indemnifying party or parties
may assume the defense of such action or proceeding at such indemnifying party’s
or parties’ expense with counsel chosen by the indemnifying party or parties and
approved by the indemnified party defendant in such action or proceeding, which
approval shall not be unreasonably withheld; provided, however, that, if
such indemnified party or parties reasonably determine that a conflict of
interest exists and that therefore it is advisable for such indemnified party or
parties to be represented by separate counsel or that, upon advice of counsel,
there may be legal defenses available to it or them which are different from or
in addition to those available to the indemnifying party, then the indemnifying
party or parties shall not be entitled to assume such defense and the
indemnified party or parties shall be entitled to separate counsel (limited in
each jurisdiction to one counsel for all indemnified parties under this
Agreement) at the indemnifying party’s or parties’ expense. If any
indemnifying party or parties is not so entitled to assume the defense of such
action or does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying party or
parties will pay the reasonable fees and expenses of counsel for the indemnified
party or parties (limited in each jurisdiction to one counsel for all
indemnified parties under this Agreement). In such event, however, no
indemnifying party or parties will be liable for any settlement effected without
the written consent of such indemnifying party or parties (which consent shall
not be unreasonably withheld or delayed). If an indemnifying party is
entitled to assume, and assumes, the defense of such action or proceeding in
accordance with this paragraph, such indemnifying party or parties shall not,
except as otherwise provided in this subsection (c), be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action or proceeding.
(d) Contribution. (i) In
order to provide for just and equitable contribution in circumstances in which
the indemnity agreement provided for in this Section 9 is for any reason held to
be unenforceable by the indemnified parties although applicable in accordance
with its terms in respect of any losses, liabilities, claims, damages, judgments
and expenses suffered by an indemnified party referred to therein, each
applicable 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, liabilities, claims, damages, judgments and expenses in
such proportion as is
15
appropriate
to reflect the relative fault of the Company on the one hand and of the Selling
Shareholder (including, in each case, that of their respective officers,
directors, employees and agents) on the other in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages,
judgments or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and
of the Selling Shareholder (including, in each case, that of their respective
officers, directors, employees and agents) on the other 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 Company, on the one hand, or by or on
behalf of the Selling Shareholder, on the other, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as
a result of the losses, liabilities, claims, damages, judgments and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 9(c), any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or
claim.
(ii) The
Company and the Selling Shareholder agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in sub-paragraph (i)
above. Notwithstanding this Section 9(d), in the case of
distributions to the public, the Selling Shareholder shall not be required to
contribute any amount in excess of the amount by which (A) the total price at
which the Registrable Securities sold by the Selling Shareholder and distributed
to the public were offered to the public exceeds (B) the amount of any damages
which the Selling Shareholder has otherwise been required to pay and has paid by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(iii) For
purposes of this Section 9(d), each Person, if any, who controls the Selling
Shareholder within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as the Selling Shareholder; and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act, shall have the same rights to contribution as the
Company.
10. Inconsistent
Actions. (a) The Company shall not grant to any
other Person the right to include securities in any Required Registration
Statement, other than such rights granted in this Agreement.
(b) The
Company shall not seek to include in any Required Registration Statement any
securities other than Registrable Securities held by the Selling
Shareholder.
11. Assignment of Registrable
Securities. (a) The Selling Shareholder may
transfer all or any portion of its rights under this Agreement to any direct or
indirect
16
wholly
owned subsidiary of the Selling Shareholder (each transferee shall be referred
herein as a “Transferee”) in
respect of any number of Registrable Securities (“Permitted
Transfer”). Any Permitted Transfer of registration rights
pursuant to this Section 11(a) shall be effective upon receipt by the Company of
(i) a written notice from the Selling Shareholder stating the name and address
of any Transferee and identifying the number of Registrable Securities with
respect to which the rights under this Agreement are being transferred and the
nature of the rights so transferred and (ii) a written agreement from such
Transferee to be bound by the terms of this Agreement.
(b) In
connection with a Permitted Transfer of Registrable Securities owned by the
Selling Shareholder at the time of such transfer, the Selling Shareholder may
assign to any Transferee (i) a right to request pursuant to Section 3 that the
Company include any of or all such Registrable Securities in any Incidental
Registration Statement; provided, however, that no such
rights may be exercised with respect to a Demand Registration Statement filed as
a result of a demand under Section 2(a) by the Selling Shareholder; and (ii) the
right to make any number of demands under Section 2(a); provided, however, that such
number is less than or equal to the total number of demands specified in Section
2(c) as reduced by the number of demands under Section 2(a) which the Selling
Shareholder has previously made or assigned.
(c) A
Transferee shall be entitled to rights granted to, and subject to the conditions
and obligations imposed upon, the Selling Shareholder by this Agreement to the
extent that the Selling Shareholder transfers rights under this Agreement to
such Transferee pursuant to Section 11(a) or 11(b); provided, however, that for
purposes of applying the proviso contained in Section 3(b), (i) the Selling
Shareholder and all of its Transferees shall be treated as a single shareholder
and (ii) the total amount of Registrable Securities which may be included in a
Registration Statement by the Selling Shareholder and all of its Transferees
shall be allocated among the Selling Shareholder and its Transferees pro rata
(based on the number of securities requested to be included).
12. Amendments and
Waivers. This Agreement may be amended with the consent of the
parties and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company shall
have obtained the written consent to such amendment, action or omission to act,
of the Selling Shareholder.
13. Notices. All
notices, requests and other communications provided for or permitted hereunder
shall be made in writing and shall be by registered or certified first-class
mail, return receipt requested, telecopier, courier service or personal delivery
addressed to the recipient thereof in the manner set forth below, or at such
other address as such recipient shall have furnished in writing in the manner
set forth herein.
The
Company:
Alcon,
Inc.
X.X. Xxx
00
Xxxxx
00XX-0000 Xxxxxxxxx
Xxxxxxxxxxx
17
Attention: Xxxxxx
Xxxxxxxx, Esq.
General
Counsel
Facsimile: x00
00 000 0000
With a
copy to:
Alcon
Laboratories, Inc.
0000
Xxxxx Xxxxxxx
Xxxx
Xxxxx, XX 000000
Attention: Xxxxxx
Xxxxxxxx, Esq.
General
Counsel
Facsimile: (000)
000 0000
The
Selling Shareholder:
Nestlé
S.A.
Xxxxxx
Xxxxxx 00
0000
Xxxxx
Xxxxxxxxxxx
Attention: Group
General Counsel
Facsimile: x00
00 000 0000
All such
notices and communications shall be deemed to have been duly given when receipt
is confirmed in writing.
14. 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 in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof. 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent
possible.
15. Entire
Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
18
16. Interpretation. When
a reference is made in this Agreement to an Article, Section or Exhibit, such
reference shall be to an Article or Section of, or an Exhibit to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever
the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”. The
words “hereof”, “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All terms defined in this
Agreement shall have such defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined
therein. The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms. Except
as set forth herein, any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and references to all attachments thereto and instruments incorporated
therein. References to a person are also to its permitted successors
and assigns.
17. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
18. Counterparts. This
Agreement may be executed in any number of counterparts and by each of the
parties hereto in separate counterparts, each of which when so executed by each
of the parties hereto shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
[Signature Page
Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective representatives hereunto duly authorized as of
the date first above written.
|
ALCON,
INC.,
|
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|
by
|
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| /s/ Xxxxxx X. Xxxxxxxx | |||
| and Corporate Secretary | |||
|
NESTLÉ
S.A.,
|
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|
by
|
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| /s/ Hans Xxxxx Xxxxx | |||
|
Name:
Hans Xxxxx Xxxxx
|
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|
Title:
Senior Vice President
|
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