Exhibit 99.2
REGISTRATION RIGHTS AGREEMENT
among
ADVANCED MEDICAL OPTICS, INC.
as Issuer,
AMO HOLDINGS, LLC
as Guarantor,
and
XXXXXX XXXXXXX & CO. INCORPORATED,
BANC OF AMERICA SECURITIES LLC,
XXXXXX BROTHERS INC.
BANC ONE CAPITAL MARKETS, INC.
as Initial Purchasers
Dated as of June 24, 2003
REGISTRATION RIGHTS AGREEMENT dated as of June 24, 2003 among Advanced
Medical Optics, Inc., a Delaware corporation (the "Company"), AMO Holdings, LLC,
a Delaware limited liability company and the several initial purchasers named in
Schedule I hereto (the "Initial Purchasers") for whom Xxxxxx Xxxxxxx & Co.
Incorporated and Banc of America Securities LLC are acting as joint book-running
managers pursuant to the Purchase Agreement dated June 18, 2003 (the "Purchase
Agreement"), between the Company, the Guarantor and the Initial Purchasers. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Guarantor have agreed to provide the registration rights set
forth in this Agreement.
The Company and the Guarantor agree with the Initial Purchasers, (i)
for their benefit as Initial Purchasers and (ii) for the benefit of the
beneficial owners (including the Initial Purchasers) from time to time of the
Notes (as defined herein) and the beneficial owners from time to time of the
Underlying Common Stock (as defined herein) issued upon conversion of the Notes
(each of the foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means with respect to any specified person, an "affiliate,"
as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, $0.01 par value per
share, of the Company, together with the Rights evidenced by such common stock
to the extent provided in the Rights Agreement dated as of June 24, 2002,
between the Company and Mellon Investor Services LLC, as amended, and any other
shares of common stock as may constitute "Common Stock" for purposes of the
Indenture, including the Underlying Common Stock.
"Conversion Price" has the meaning assigned such term in the Indenture.
"Damages Accrual Period" has the meaning set forth in Section 2(e)
hereof.
"Damages Payment Date" means each April 15 and October 15.
"Deferral Notice" has the meaning set forth in Section 3(h) hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means the period commencing on the date hereof
and ending on the earlier of the date that all Registrable Securities have
ceased to be Registrable Securities or have ceased to be outstanding.
"Event" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of June 24, 2003, between the
Company, the Guarantor and U.S. Bank National Association, as trustee, pursuant
to which the Notes are being issued.
"Initial Purchasers" has the meaning set forth in the preamble hereof.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means June 24, 2003.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e)
hereof.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notes" means the 31/2% Convertible Senior Subordinated Notes Due 2023
of the Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated June 18, 2003 relating to the Notes, as such
notice may be amended upon the advice of nationally-recognized counsel
experienced in such matters, to the extent reasonably necessary to ensure
compliance with applicable law.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Record Holder" means with respect to any Damages Payment Date relating
to any Notes or Underlying Common Stock as to which any Liquidated Damages
Amount has accrued, the registered holder of such Note or Underlying Common
Stock on the April 1 immediately preceding a Damages Payment Date occurring on
an April 15, and on the October 1 immediately preceding a Damages Payment Date
occurring on an October 15.
"Registrable Securities" means the Notes until such Notes have been
converted into or exchanged for the Underlying Common Stock and, at all times
subsequent to any such conversion, the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted or
exchanged, and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the earliest
of (i) its effective registration under the Securities Act and resale in
accordance with the Registration Statement covering it, (ii) expiration of the
holding period that would be applicable thereto under Rule 144(k) or (iii) its
sale to the public pursuant to Rule 144 under the Securities Act.
"Registration Statement" means any registration statement of the
Company, the Guarantor and any future subsidiary guarantor of the Notes that
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities" means "restricted securities" as defined in
Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Special Counsel" means Xxxxx Xxxx & Xxxxxxxx or one such other
successor counsel as shall be specified by the Holders of a majority of the
Registrable Securities and reasonably acceptable to the Company, but which may,
with the written consent of the Initial Purchasers (which shall not be
unreasonably withheld), be another nationally recognized law firm experienced in
securities law matters designated by the Company, the reasonable fees and
expenses in connection with Blue Sky qualifications of the Registrable
Securities of which will be paid by the Company and the Guarantor pursuant to
Section 5 hereof. For purposes of determining the Holders of a majority of the
Registrable Securities in this definition, Holders of Notes shall be deemed to
be the Holders of the number of shares of Underlying Common Stock into which
such Notes are or would be convertible as of the date the consent is requested.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means U.S. Bank National Association, the Trustee under the
Indenture.
"Underlying Common Stock" means the Common Stock into which the Notes
are convertible or issued upon any such conversion.
Section 2. Shelf Registration. The Company and the Guarantor shall use
their reasonable best efforts to prepare and file or cause to be prepared and
filed with the SEC, by the date (the "Filing Deadline Date") ninety (90) days
after the Issue Date, a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration Statement") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf Registration
Statement"). The Initial Shelf Registration Statement shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by such Holders in accordance with the methods of distribution
elected by the Holders and set forth in the Initial Shelf Registration
Statement. The Company and the Guarantor shall use their reasonable best efforts
to cause the Initial Shelf Registration Statement to be declared effective under
the Securities Act by the date (the "Effectiveness Deadline Date") that is one
hundred eighty (180) days after the Issue Date, and to keep the Initial Shelf
Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement is
declared effective, each Holder that became a Notice Holder on or prior to the
date ten (10) Business Days prior to such time of effectiveness shall be named
as a selling securityholder in the Initial Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable
law. No Holder that is not a Notice Holder shall be entitled to be named as a
selling securityholder in or have the Registrable Securities held by it covered
in, a Shelf Registration Statement. The Company shall use its reasonable best
efforts to ensure that none of the Company's security holders (other than the
Holders of Registrable Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company and the Guarantor
shall use their reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within thirty
(30) days of such cessation of effectiveness amend the Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration
Statement covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company and the Guarantor
shall use their reasonable best efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is practicable after
such filing and to keep such Registration Statement (or subsequent Shelf
Registration Statement) continuously effective until the end of the
Effectiveness Period.
(c) The Company and Guarantor shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company and the Guarantor for
such Shelf Registration Statement, if required by the Securities Act or as
necessary to name a Notice Holder as a selling securityholder pursuant to
Section 2(d) below. The Company shall require any future subsidiary guarantor of
the Notes to become a registrant on any Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement, or if required by the
Securities Act.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and Section 3(h) of this
Agreement. Following the date that the Initial Shelf Registration Statement is
declared effective, each Holder that is not a Notice Holder wishing to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire to the Company at least
fifteen (15) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. From and after the date the
Initial Shelf Registration Statement is declared effective, the Company and the
Guarantor shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered to the Company is accordance with the provisions of
Section 8(c), and in any event upon the later of (x) fifteen (15) Business Days
after such date or (y) fifteen (15) Business Days after the expiration of any
Deferral Period in effect when the Notice and Questionnaire is delivered or put
into effect within fifteen (15) Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named
as a selling securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Registrable Securities
in accordance with applicable law and, if the Company and the
Guarantor shall file a post-effective amendment to the Shelf
Registration Statement, use its reasonable best efforts to cause such
post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable, but in any event by the
date (the "Amendment Effectiveness Deadline Date") that is forty-five
(45) days after the date such post-effective amendment is required by
this clause to be filed;
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(d)(i);
provided, that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(h). Notwithstanding anything contained herein to the contrary, (i) the Company
and the Guarantor shall be under no obligation to name any Holder that is not a
Notice Holder as a selling securityholder in any Registration Statement or
related Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be
extended by up to fifteen (15) Business Days from the expiration of a Deferral
Period if such Deferral Period shall be in effect on the Amendment Effectiveness
Deadline Date.
(e) The parties hereto agree that the Holders of Notes that are of
Registrable Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if, other than as permitted
hereunder,
(i) the Initial Shelf Registration Statement has not been
filed on or prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been
declared effective under the Securities Act on or prior to the
Effectiveness Deadline Date,
(iii) the Company or the Guarantor has failed to perform its
obligations set forth in Section 2(d)(i) within the time period
required therein,
(iv) any post-effective amendment to a Shelf Registration
Statement filed pursuant to Section 2(d)(i) has not become effective
under the Securities Act on or prior to the Amendment Effectiveness
Deadline Date,
(v) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant
to Section 3(h) hereof, or
(vi) the number of Deferral Periods in any period exceeds the
number permitted in respect of such period pursuant to Section 3(h)
hereof.
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin and end on the dates set forth in the
table set forth below:
Type of Event by Clause Beginning Date Ending Date
-------------------------------------------------------------------------------
(i) Filing Deadline Date the date the Initial
Shelf Registration
Statement is filed
(ii) Effectiveness Deadline Date the date the Initial
Shelf Registration
Statement becomes
effective under the
Securities Act
(iii) the date by which the the date the Company and
Company and the Guarantor the Guarantor performs
are required to perform their obligations set
their obligations under forth in Section 2(d)(i)
Section 2(d)(i)
(iv) the Amendment Effectiveness the date the applicable
Deadline Date post-effective amendment
to a Shelf Registration
Statement becomes
effective under the
Securities Act
(v) the date on which the termination of the
aggregate duration of Deferral Period that
Deferral Periods in any caused the limit on the
period exceeds the number of aggregate duration of
days permitted by Section Deferral Periods to be
3(h) exceeded
(vi) the date of commencement of termination of the
a Deferral Period that Deferral Period that
causes the number of caused the number of
Deferral Periods to exceed Deferral Periods to
the number permitted by exceed the number
Section 3(h) permitted by Section 3(h)
For purposes of this Agreement, Events shall begin on the dates set forth in the
table above and shall continue until the ending dates set forth in the table
above.
Commencing on (and including) any date that an Event has begun and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), the Company and the
Guarantor shall pay, as liquidated damages and not as a penalty, to Record
Holders of Notes that are Registrable Securities an amount (the "Liquidated
Damages Amount") accruing, for each day in the Damages Accrual Period, in
respect of any Note, at a rate per annum equal to (A) 0.25% of the aggregate
principal amount of such Note to and including the 90th day of the Damages
Accrual Period and (B) 0.50% of the aggregate principal amount of such Note from
and after the 91st day of the Damages Accrual Period; provided that in the case
of a Damages Accrual Period that is in effect solely as a result of an Event of
the type described in clause (iii) or (iv) of the preceding paragraph, such
Liquidated Damages Amount shall be paid only to the Notice Holders.
Notwithstanding the foregoing, no Liquidated Damages Amount shall accrue as to
any Note that is a Registrable Security from and after the earlier of (x) the
date such Note is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Following the cure
of all Events relating to any particular Note, the accrual of Liquidated Damages
with respect to such Note shall ceases.
The Liquidated Damages Amount shall accrue from the first day of the
applicable Damages Accrual Period, and shall be payable on each Damages Payment
Date during the Damage Accrual Period (and on the Damages Payment Date next
succeeding the end of the Damages Accrual Period if the Damage Accrual Period
does not end on a Damages Payment Date) to the Record Holders of Notes that are
Registrable Securities entitled thereto; provided that any Liquidated Damages
Amount accrued with respect to any Note or portion thereof redeemed by the
Company on a redemption date or converted into Underlying Common Stock on a
conversion date prior to the Damages Payment Date, shall, in any such event, be
paid instead to the Holder who submitted such Note or portion thereof for
redemption or conversion on the applicable redemption date or conversion date,
as the case may be, on such date (or promptly following the conversion date, in
the case of conversion); provided further, that, in the case of an Event of the
type described in clause (iii) or (iv) of the first paragraph of this Section
2(e), such Liquidated Damages Amount shall be paid only to the Holders entitled
thereto pursuant to such first paragraph by check mailed to the address set
forth in the Notice and Questionnaire delivered by such Holder. The Trustee
shall be entitled, on behalf of registered holders of Notes, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of such Liquidated Damages Amount. Notwithstanding the foregoing, the
parties agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which liquidated damages are expressly provided shall
be such liquidated damages. Nothing shall preclude any Holder from pursuing or
obtaining specific performance or other equitable relief with respect to this
Agreement.
All of the Company's and Guarantor's obligations set forth in this
Section 2(e) to pay any Liquidated Damages Amount that is outstanding with
respect to any Note that is a Registrable Security at the time such Note ceases
to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Notes that are Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed or declared effective or
available for effecting resales of Notes that are Registrable Securities in
accordance with the provisions hereof.
Section 3 . Registration Procedures. In connection with the
registration obligations of the Company and Guarantor under Section 2 hereof,
during the Effectiveness Period, the Company and the Guarantor shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial
Purchasers and the Special Counsel of such offering, if any, copies of all such
documents proposed to be filed at least three (3) Business Days prior to the
filing of such Registration Statement or amendment thereto or Prospectus or
supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2(a); cause the related Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement as so amended or
such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders, (i)
when any Prospectus, prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with the SEC
and, with respect to a Registration Statement or any post-effective amendment,
when the same has been declared effective, (ii) of any request, following the
effectiveness of the Initial Shelf Registration Statement under the Securities
Act, by the SEC or any other federal or state governmental authority for
amendments or supplements to any Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company or the
Guarantor of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the occurrence of, but not the nature of or
details concerning, a Material Event (provided, that no notice by the Company
shall be required pursuant to this clause (iv) in the event that the Company
either promptly files a supplement to update the Prospectus or a Form 8-K or
other appropriate Exchange Act report that is incorporated by reference into the
Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such
Registration Statement no longer containing any untrue statement of a material
fact or omitting to state a material fact necessary to make the statement
contained therein not misleading) and (vi) of the determination by the Company
or the Guarantor that a post-effective amendment to a Registration Statement
will be filed with the SEC, which notice may, at the discretion of the Company
(or as required pursuant to Section 3(h)), state that it constitutes a Deferral
Notice, in which event the provisions of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale, in either case as promptly as practicable, and provide
prompt notice to each Notice Holder and the Initial Purchasers of the withdrawal
of any such order.
(e) As promptly as practicable furnish to each Notice Holder, the
Special Counsel and the Initial Purchasers, upon request and without charge, at
least one (1) conformed copy of the Registration Statement and any amendment
thereto, including exhibits and but without documents incorporated or deemed to
be incorporated therein by reference if such documents are available via XXXXX.
(f) During the Effectiveness Period, deliver to each Notice Holder, in
connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Company and the Guarantor hereby consent (except during such
periods that a Deferral Notice is outstanding and has not been revoked) to the
use of such Prospectus or each amendment or supplement thereto by each Notice
Holder in connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in the manner
set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant
to a Registration Statement, use its reasonable best efforts to register or
qualify or cooperate with the Notice Holders and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be
included in the Notice and Questionnaire); prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use its
reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in connection
with such Notice Holder's offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set forth in
the relevant Registration Statement and the related Prospectus; provided that
neither the Company nor the Guarantor will be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Agreement or (ii) take
any action that would subject it to general service of process in suits or to
taxation in any such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which any Registration Statement
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (C) the receipt by the Company or
the Guarantor of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose or (D) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Company, makes
it appropriate to suspend the availability of the Shelf Registration Statement
and the related Prospectus:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Registration
Statement and Prospectus so that such Registration Statement does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the
next sentence, use its reasonable best efforts to cause it to be
declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, that the availability
of the Shelf Registration Statement is suspended (a "Deferral Notice")
and, upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to the Registration
Statement until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or
until it is advised in writing by the Company that the Prospectus may
be used, and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in
such Prospectus, and such Holder will either (X) destroy any
Prospectuses, other than permanent file copies, then in such Holder's
possession that have been replaced by the Company with more recently
dated prospectuses or (Y) deliver to the Company (at the Company's
expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities, current at the time of receipt of
such notice.
The Company and the Guarantor will use their reasonable best efforts to ensure
that the use of the Prospectus may be resumed (x) in the case of clause (A)
and (C) above, as promptly as is practicable, (y) in the case of clause (B)
above, as soon as, in the sole judgment of the Company, public disclosure of
such Material Event would not be prejudicial to or contrary to the interests
of the Company or, if necessary to avoid unreasonable burden or expense, as
soon as practicable thereafter and (z) in the case of clause (D) above, as
soon as in the reasonable discretion of the Company, such suspension is no
longer appropriate. The Company shall be entitled to exercise its right under
this Section 3(h) to suspend the availability of the Shelf Registration
Statement or any Prospectus, without incurring or accruing any obligation to
pay liquidated damages pursuant to Section 2(e), no more than one (1) time in
any three month period or four (4) times in any twelve month period, and any
such period during which the availability of the Registration Statement and
any Prospectus is suspended (the "Deferral Period") shall, without incurring
any obligation to pay liquidated damages pursuant to Section 2(e), shall not
exceed 45 days in any three month period (or 60 days in any three month period
in the event of a Material Event pursuant to which the Company has delivered a
second notice as permitted below) or 120 days in any twelve (12) month period;
provided that in the case of a Material Event relating to an acquisition or a
probable acquisition or financing, recapitalization, business combination or
other similar transaction, the Company may, without incurring any obligation
to pay liquidated damages pursuant to Section 2(e), deliver to Notice Holders
a second notice to the effect set forth above, which shall have the effect of
extending the Deferral Period by up to an additional 15 days, or such shorter
period of time as is specified in such second notice.
(i) If requested in writing in connection with a disposition of
Registrable Securities in an aggregate amount of at least $5 million pursuant to
a Registration Statement, make reasonably available for inspection during normal
business hours by a representative for the Notice Holders of such Registrable
Securities, any broker-dealers, attorneys and accountants retained by such
Notice Holders, and any attorneys or other agents retained by a broker-dealer
engaged by such Notice Holders, all relevant financial and other records and
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate officers, directors and employees of the
Company and its subsidiaries to make reasonably available for inspection during
normal business hours on reasonable notice all relevant information reasonably
requested by such representative for the Notice Holders, or any such
broker-dealers, attorneys or accountants in connection with such disposition, in
each case as is customary and reasonably necessary for similar "due diligence"
examinations; provided that such persons shall first agree in writing with the
Company that any non-public information shall be kept confidential by such
persons and shall be used solely for the purposes of exercising rights under
this Agreement, unless (i) disclosure of such information is required by court
or administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus
referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available to any
such person from a source other than the Company and such source is not bound by
a confidentiality agreement, and provided further that the foregoing inspection
and information gathering shall, to the greatest extent possible, be coordinated
on behalf of all the Notice Holders and the other parties entitled thereto by
Special Counsel. Any person legally compelled to disclose any such confidential
information made available for inspection shall provide the Company with prompt
prior written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
(j) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) for a 12-month period commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement..
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Registration Statement, which certificates
shall not bear any restrictive legends, and cause such Registrable Securities to
be in such denominations as are permitted by the Indenture and registered in
such names as such Notice Holder may request in writing at least two (2)
Business Days prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for the
Common Stock with printed certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company.
(m) Reasonably cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.
(n) Upon (i) the filing of the Initial Shelf Registration Statement and
(ii) the effectiveness of the Initial Shelf Registration Statement, announce the
same, in each case by release to Reuters Economic Services and Bloomberg
Business News.
Section 4 . Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as the Company may from time to
time reasonably request. Any sale of any Registrable Securities by any Holder
shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set forth
in the Prospectus delivered by such Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statements in such Prospectus, in the
light of the circumstances under which they were made, not misleading.
Section 5. Registration Expenses. The Company and the Guarantor shall
bear all fees and expenses incurred in connection with the performance by the
Company and the Guarantor of their obligations under Section 2 and 3 of this
Agreement whether or not any Registration Statement is declared effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect
to filings required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal and state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of
the Special Counsel in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as Notice Holders of
a majority of the Registrable Securities being sold pursuant to a Registration
Statement may designate), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company), (iii) duplication expenses
relating to copies of any Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company and
the Guarantor in connection with the Shelf Registration Statement, (v)
reasonable fees and disbursements of the Trustee and its counsel and of the
registrar and transfer agent for the Common Stock and (vi) any Securities Act
liability insurance obtained by the Company and the Guarantor in their sole
discretion. In addition, the Company and the Guarantor shall pay the internal
expenses of the Company and the Guarantor (including, without limitation, all
salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in
connection with the listing by the Company and the Guarantor of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed, if any listing is made, and the fees and expenses of any
person, including special experts, retained by the Company and the Guarantor.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay selling expenses, including any underwriting discount and
commissions, and all registration expenses to the extent required by applicable
law.
Section 6. Indemnification and Contribution.
(a) Indemnification by the Company and the Guarantor. The Company and
the Guarantor, jointly and severally, agree to indemnify and hold harmless each
Notice Holder, each person, if any, who controls any Notice Holder within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, and each affiliate of any Notice Holder within the meaning of Rule 405
under the Securities Act that is a broker-dealer from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any (i) untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company or the Guarantor shall
have furnished any amendments or supplements thereto), caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made not misleading, except in each of (i) and (ii) above
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Holder furnished to the Company or the Guarantor in
writing by such Holder expressly for use therein; provided that the
indemnification contained in this paragraph shall not inure to the benefit of
any Holder (or to the benefit of any person controlling such Holder) on account
of any such losses, claims, damages or liabilities caused by any untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus provided in each case the Company has performed its
obligations under Section 3(f) hereof if either (A) (x) such Holder failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Holder to the person asserting the
claim from which such losses, claims, damages or liabilities arise and (y) the
Prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission, or (B) (x) such untrue statement
or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Holder thereafter fails to deliver such Prospectus
as so amended or supplemented, with or prior to the delivery of written
confirmation of the sale of a Registrable Security to the person asserting the
claim from which such losses, claims, damages or liabilities arise.
(b) Indemnification by Holders. Each Holder agrees severally and not
jointly to indemnify and hold harmless the Company and the Guarantor and their
directors, officers and each person, if any, who controls the Company or the
Guarantor (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) or any other Holder, to the same extent as the
foregoing indemnity from the Company and the Guarantor to such Holder, but only
with reference to information relating to such Holder furnished to the Company
and the Guarantor in writing by such Holder expressly for use in such
Registration Statement or Prospectus or amendment or supplement thereto. In no
event shall the liability of any Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities pursuant to the Registration Statement giving rise to
such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 6(a) or
6(b) hereof, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel at its standard
non-premium rates) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by, in the case of parties indemnified pursuant to Section 6(a), the
Holders of a majority (with Holders of Notes deemed to be the Holders, for
purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date on
which such designation is made) of the Registrable Securities covered by the
Registration Statement held by Holders that are indemnified parties pursuant to
Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b),
the Company and the Guarantor. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment that is
indemnifiable pursuant to Section 6(a) or 6(b), as the case may be.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request prior to
the date of such settlement; provided, that an indemnifying party shall not be
liable for any such settlement effected without its consent if such indemnifying
party, prior to the date of such settlement, (1) reimburses such indemnified
party in accordance with such request for the amount of such fees and expenses
of counsel as the indemnifying party believes in good faith to be reasonable,
and (2) provides written notice to the indemnified party that the indemnifying
party disputes in good faith the reasonableness of the unpaid balance of such
fees and expenses. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) Contribution. To the extent that the indemnification provided for
in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Guarantor
shall be deemed to be equal to the total net proceeds from the initial placement
pursuant to the Purchase Agreement (before deducting expenses) of the
Registrable Securities to which such losses, claims, damages or liabilities
relate. The relative benefits received by any Holder shall be deemed to be equal
to the value of receiving Registrable Securities that are registered under the
Securities Act. The relative fault of the Holders on the one hand and the
Company and the Guarantor on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Holders or by the Company or Guarantor, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 6(d) are several in
proportion to the respective number of Registrable Securities they have sold
pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section 6, no indemnifying party that is a selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity, hereunder, under the Purchase Agreement
or otherwise.
(f) The indemnity and contribution provisions contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder, any person controlling any Holder or any affiliate of any Holder or
by or on behalf of the Company or the Guarantor, their officers or directors or
any person controlling the Company or the Guarantor and (iii) the sale of any
Registrable Securities by any Holder.
Section 7 . Information Requirements. The Company covenants that, if
at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder and take such further reasonable action as any Holder may
reasonably request in writing (including, without limitation, making such
reasonable representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions. Upon the written request of any Holder, the Company shall deliver
to such Holder a written statement as to whether it has complied with such
filing requirements, unless such a statement has been included in the
Company's most recent report filed pursuant to Section 13 or Section 15(d) of
Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall
be deemed to require the Company to register any of its securities (other than
the Common Stock) under any section of the Exchange Act.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. Neither the Company nor the Guarantor
is, as of the date hereof, a party to, nor shall it, on or after the date of
this Agreement, enter into, any agreement with respect to its securities that
conflicts with the rights granted to the Holders in this Agreement. The Company
and the Guarantor represent and warrant that the rights granted to the Holders
hereunder do not in any way conflict with the rights granted to the holders of
the Company's securities under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company and the Guarantor have obtained the written consent of
Holders of a majority of the then outstanding Underlying Common Stock
constituting Registrable Securities (with Holders of Notes deemed to be the
Holders, for purposes of this Section, of the number of outstanding shares of
Underlying Common Stock into which such Notes are or would be convertible as of
the date on which such consent is requested). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose securities are being
sold pursuant to a Registration Statement and that does not affect the rights of
other Holders may be given by Holders of at least a majority of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement;
provided that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Notwithstanding the foregoing two sentences, this Agreement
may be amended by written agreement signed by the Company, the Guarantor and the
Initial Purchasers, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely affect the
interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(b), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by such
Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
(ii) if to the Company, to:
Advanced Medical Optics, Inc.
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. XxXxxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) if to the Initial Purchasers, to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Capital Markets
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of
a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Indenture. If any transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities,
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any term provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company and the Guarantor with respect to the Registrable
Securities. Except as provided in the Purchase Agreement, there are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company and the Guarantor with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and undertakings among the parties
with respect to such registration rights. No party hereto shall have any rights,
duties or obligations other than those specifically set forth in this Agreement.
In no event will such methods of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5, 6 or 8 hereof and the
obligations to make payments of and provide for the Liquidated Damages Amount
under Section 2(e) hereof to the extent such amount accrues prior to the end of
the Effectiveness Period, each of which shall remain in effect in accordance
with its terms.
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: CVP & CFO
AMO HOLDINGS, LLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: VP & CFO
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
On behalf of the Initial Purchasers listed in Schedule I hereto
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
SCHEDULE I
INITIAL PURCHASERS
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
XXXXXX BROTHERS, INC.
BANC ONE CAPITAL MARKETS, INC.