Valeant Pharmaceuticals International $400,000,000 7.625% Senior Notes due 2020 unconditionally guaranteed as to the payment of principal, premium, if any, and interest by the Guarantors party hereto Exchange and Registration Rights Agreement
Exhibit 99.1
$400,000,000
7.625% Senior Notes due 2020
7.625% Senior Notes due 2020
unconditionally guaranteed as to the
payment of principal, premium,
if any, and interest by the Guarantors
payment of principal, premium,
if any, and interest by the Guarantors
party hereto
April 9, 2010
Xxxxxxx, Xxxxx & Co.,
As Representative of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Valeant Pharmaceuticals International, a Delaware corporation (the “Company”), proposes to
issue and sell to the Purchasers (as defined herein) upon the terms set forth in the Purchase
Agreement (as defined herein) $400,000,000 in aggregate principal amount of its 7.625% Senior Notes
due 2020, which are unconditionally guaranteed by certain of the Company’s subsidiaries listed on
the signature pages hereof (the “Guarantors”). As an inducement to the Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company and the Guarantors agree with the Purchasers for the benefit of holders (as
defined herein) from time to time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration Rights
Agreement (this “Agreement”), the following terms shall have the following respective
meanings:
“Base Interest” shall mean the interest that would otherwise accrue on the Securities
under the terms thereof and the Indenture, without giving effect to the provisions of this
Agreement.
The term “broker-dealer” shall mean any broker or dealer registered with the Commission
under the Exchange Act.
“Business Day” shall have the meaning set forth in Rule 13e-4(a)(3) promulgated by the
Commission under the Exchange Act, as the same may be amended or succeeded from time to
time.
“Closing Date” shall mean the date on which the Securities are initially issued.
“Commission” shall mean the United States Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
“IDEA System” means the IDEA (f/k/a XXXXX) filing system of the Commission and the
rules and regulations pertaining thereto promulgated by the Commission in Regulation S-T
under the Securities Act and the Exchange Act, in each case as the same may be amended or
succeeded from time to time (and without regard to format).
“Effective Time,” in the case of (i) an Exchange Registration, shall mean the time and
date as of which the Commission declares the Exchange Registration Statement effective or as
of which the Exchange Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
“Electing Holder” shall mean any holder of Registrable Securities that has returned a
completed and signed Notice and Questionnaire to the Company in accordance with Section
3(d)(ii) or Section 3(d)(iii) and the instructions set forth in the Notice and
Questionnaire.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission thereunder, as the same may be amended
or succeeded from time to time.
“Exchange Offer” shall have the meaning assigned thereto in Section 2(a).
“Exchange Registration” shall have the meaning assigned thereto in Section 3(c).
“Exchange Registration Statement” shall have the meaning assigned thereto in Section
2(a).
“Exchange Securities” shall have the meaning assigned thereto in Section 2(a).
“Guarantor” shall have the meaning assigned thereto in the Indenture.
The term “holder” shall mean each of the Purchasers and other persons who acquire
Securities from time to time (including any successors or assigns), in each case for so long
as such person owns any Securities.
“Indenture” shall mean the trust indenture, dated as of April 9, 2010, between the
Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee, as
the same may be amended from time to time.
“Notice and Questionnaire” means a Notice of Registration Statement and Selling
Securityholder Questionnaire substantially in the form of Exhibit A hereto.
The term “person” shall mean a corporation, limited liability company, association,
partnership, organization, business, individual, government or political subdivision thereof
or governmental agency.
“Purchase Agreement” shall mean the Purchase Agreement, dated as of April 6, 2010,
between the Purchasers, the Company and the Guarantors relating to the Securities.
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“Purchasers” shall mean the Purchasers named in Schedule I to the Purchase Agreement.
“Registrable Securities” shall mean the Securities; provided, however, that a Security
shall cease to be a Registrable Security upon the earliest to occur of the following: (i) in
the circumstances contemplated by Section 2(a), the Security has been exchanged for an
Exchange Security in an Exchange Offer as contemplated in Section 2(a) (provided that any
Exchange Security that, pursuant to the last two sentences of Section 2(a), is included in a
prospectus for use in connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the Resale Period); (ii) in the circumstances contemplated
by Section 2(b), a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such
effective Shelf Registration Statement; (iii) subject to Section 8(b), such Security is
actually sold by the holder thereof pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the Indenture; or (iv)
such Security shall cease to be outstanding for purposes of the Indenture.
“Registration Default” shall have the meaning assigned thereto in Section 2(c).
“Registration Default Period” shall have the meaning assigned thereto in Section 2(c).
“Registration Expenses” shall have the meaning assigned thereto in Section 4.
“Resale Period” shall have the meaning assigned thereto in Section 2(a).
“Restricted Holder” shall mean (i) a holder that is an affiliate of the Company within
the meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary
course of such holder’s business, (iii) a holder who has arrangements or understandings with
any person to participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect to Exchange
Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
“Rule 144,” “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” shall mean,
in each case, such rule promulgated by the Commission under the Securities Act (or any
successor provision), as the same may be amended or succeeded from time to time.
“Securities” shall mean, collectively, the $400,000,000 in aggregate principal amount
of the Company’s 7.625% Senior Notes due 2020 to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the Indenture. Each
Security is entitled to the benefit of the guarantee provided by the Guarantors in the
Indenture (the “Guarantee”) and, unless the context otherwise requires, any reference herein
to a “Security,” an “Exchange Security” or a “Registrable Security” shall include a
reference to the related Guarantee.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, as the same may be amended or
succeeded from time to time.
“Shelf Registration” shall have the meaning assigned thereto in Section 2(b).
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“Shelf Registration Statement” shall have the meaning assigned thereto in Section 2(b).
“Special Interest” shall have the meaning assigned thereto in Section 2(c).
“Suspension Period” shall have the meaning assigned thereto in Section 2(b).
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated by the Commission thereunder, as the same may be amended
or succeeded from time to time.
“Trustee” shall mean The Bank of New York Mellon Trust Company, N.A., as trustee under
the Indenture, together with any successors thereto in such capacity.
Unless the context otherwise requires, any reference herein to a “Section” or “clause”
refers to a Section or clause, as the case may be, of this Agreement, and the words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement
as a whole and not to any particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company and the Guarantors
agree to file under the Securities Act a registration statement relating to an offer
to exchange (such registration statement, the “Exchange Registration Statement”, and
such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Company and guaranteed by the
Guarantors, which debt securities and guarantees are substantially identical to the
Securities and the related Guarantees, respectively (and are entitled to the
benefits of the Indenture), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not contain
provisions for Special Interest contemplated in Section 2(c) below (such new debt
securities hereinafter called “Exchange Securities”). The Company and the
Guarantors agree to use all commercially reasonable efforts (i) to cause such
Exchange Registration Statement to become effective under the Securities Act as
promptly as practicable after such Exchange Registration Statement is filed and (ii)
to cause the Exchange Offer to be completed within 365 days of the Closing Date.
The Exchange Offer will be registered under the Securities Act on the appropriate
form and will comply with all applicable tender offer rules and regulations under
the Exchange Act. Unless the Exchange Offer would not be permitted by applicable
law or Commission policy, the Company further agrees to use all commercially
reasonable efforts to (i) commence the Exchange Offer promptly (but no later than 10
Business Days) following the Effective Time of such Exchange Registration Statement,
(ii) hold the Exchange Offer open for at least 20 Business Days in accordance with
Regulation 14E promulgated by the Commission under the Exchange Act and (iii)
exchange Exchange Securities for all Registrable Securities that have been properly
tendered and not withdrawn promptly following the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been “completed” only (i) if the debt
securities and related guarantees received by holders other than Restricted Holders
in the Exchange Offer for Registrable Securities are, upon receipt, transferable by
each such holder without restriction under the Securities Act and without material
restrictions under the blue sky or securities laws of a substantial majority of the
States of the United States of America and (ii) upon the Company having exchanged,
pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities
that have been properly tendered and not withdrawn before the expiration of the
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Exchange Offer, which shall be on a date that is at least 20 and not more than
30 Business Days following the commencement of the Exchange Offer. The Company and
the Guarantors agree (x) to include in the Exchange Registration Statement a
prospectus for use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration Statement effective for a
period (the “Resale Period”) beginning when Exchange Securities are first issued in
the Exchange Offer and ending upon the earlier of the expiration of the 180th day
after the Exchange Offer has been completed or such time as such broker-dealers no
longer own any Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of indemnification and
contribution set forth in Subsections 6(a), (c), (d) and (e).
(b) If (i) on or prior to the time the Exchange Offer is completed existing law
or Commission interpretations are changed such that the debt securities or the
related guarantees received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt, transferable
by each such holder without restriction under the Securities Act, (ii) the Exchange
Offer has not been completed within 365 days after the Closing Date or (iii) any
holder of Registrable Securities notifies the Company prior to the 20th Business Day
following the completion of the Exchange Offer that: (A) it is prohibited by law or
Commission policy from participating in the Exchange Offer, (B) it may not resell
the Exchange Securities to the public without delivering a prospectus and the
prospectus supplement contained in the Exchange Registration Statement is not
appropriate or available for such resales or (C) it is a broker-dealer and owns
Securities acquired directly from the Company or an affiliate of the Company, then
the Company and the Guarantors shall, in lieu of (or, in the case of clause (iii),
in addition to) conducting the Exchange Offer contemplated by Section 2(a) (each of
clause (i), (ii) and (iii), a “Shelf Registration Trigger Event”), file under the
Securities Act no later than 90 days after the occurrence of any Shelf Registration
Trigger Event, a “shelf” registration statement providing for the registration of,
and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that may be adopted
by the Commission (such filing, the “Shelf Registration” and such registration
statement, the “Shelf Registration Statement”). The Company and the Guarantors agree
to use all commercially reasonable efforts to cause the Shelf Registration Statement
to become or be declared effective as promptly as practicable after such Shelf
Registration Statement is filed; provided, that if at any time the Company is or
becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to
file an “automatic shelf registration statement” (as defined in Rule 405), then the
Company and the Guarantors shall file the Shelf Registration Statement in the form
of an automatic shelf registration statement as provided in Rule 405. The Company
and the Guarantors agree to use all commercially reasonable efforts to keep such
Shelf Registration Statement continuously effective for a period ending on the
earlier of the second anniversary of the Effective Time or such time as there are no
longer any Registrable Securities outstanding. No holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless such
holder is an Electing Holder. The Company and the Guarantors agree, after the
Effective Time of the Shelf Registration Statement and promptly upon the request of
any holder of Registrable Securities that is not then an Electing Holder, to use all
commercially reasonable efforts to enable such holder to use the prospectus forming
a part thereof for resales of Registrable Securities, including, without limitation,
any action necessary to identify such holder as a selling securityholder in the
Shelf Registration Statement (whether by post-effective amendment
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thereto or by filing a prospectus pursuant to Rules 430B and 424(b) under the Securities Act
identifying such holder), provided, however, that nothing in this sentence shall
relieve any such holder of the obligation to return a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(d)(iii).
Notwithstanding anything to the contrary in this Section 2(b), upon notice to the
Electing Holders, the Company may suspend the use or the effectiveness of such Shelf
Registration Statement, or extend the time period in which it is required to file
the Shelf Registration Statement, for up to 30 consecutive days and up to 60 days in
the aggregate, in each case in any 12-month period (a “Suspension Period”) if the
Board of Directors of the Company determines that there is a valid business purpose
for suspension of the Shelf Registration Statement; provided that the Company shall
promptly notify the Electing Holders when the Shelf Registration Statement may once
again be used or is effective.
(c) In the event that (i) the Company and the Guarantors have not filed the
Exchange Registration Statement or the Shelf Registration Statement on or before the
date on which such registration statement is required to be filed pursuant to
Section 2(a) or Section 2(b), respectively, or (ii) the Exchange Offer has not been
completed within 365 days of the Closing Date or the Shelf Registration Statement
has not been declared effective in accordance with Section 2(b), or (iii) the
Exchange Offer has not been completed within 30 Business Days after the Effective
Time of the Exchange Registration Statement relating to the Exchange Offer (if the
Exchange Offer is then required to be made) or (iv) any Exchange Registration
Statement or Shelf Registration Statement required by Section 2(a) or Section 2(b)
is filed and declared effective but shall thereafter either be withdrawn by the
Company or shall become subject to an effective stop order issued pursuant to
Section 8(d) of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein including, with respect to any
Shelf Registration Statement, during any applicable Suspension Period in accordance
with the last sentence of Section 2(b)) without being succeeded immediately by an
additional registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a “Registration Default” and each period
during which a Registration Default has occurred and is continuing, a “Registration
Default Period”), then, as liquidated damages for such Registration Default, subject
to the provisions of Section 9(b), special interest (“Special Interest”), in
addition to the Base Interest, shall accrue on all Registrable Securities then
outstanding at a per annum rate of 0.25% for the first 90 days of the Registration
Default Period, at a per annum rate of 0.50% for the second 90 days of the
Registration Default Period, at a per annum rate of 0.75% for the third 90 days of
the Registration Default Period and at a per annum rate of 1.0% thereafter for the
remaining portion of the Registration Default Period. Special Interest shall accrue
and be payable only with respect to a single Registration Default at any given time,
notwithstanding the fact that multiple Registration Defaults may exist at such time.
(d) The Company shall take, and shall cause the Guarantors to take, all actions
necessary or advisable to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated, including all actions necessary
or desirable to register the Guarantees under any Exchange Registration Statement or
Shelf Registration Statement, as applicable.
(e) Any reference herein to a registration statement or prospectus as of any
time shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time; and any reference herein to any
post-effective amendment to a registration statement or to any prospectus supplement
as of any time
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shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
3. Registration Procedures.
If the Company and the Guarantors file a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration or any Shelf
Registration, whichever may occur first, the Company shall qualify the Indenture under the
Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company’s and the Guarantors’ obligations with respect to
the registration of Exchange Securities as contemplated by Section 2(a) (the “Exchange
Registration”), if applicable, the Company and the Guarantors shall:
(i) prepare and file with the Commission an Exchange Registration Statement on
any form which may be utilized by the Company and the Guarantors and which shall
permit the Exchange Offer and resales of Exchange Securities by broker-dealers
during the Resale Period to be effected as contemplated by Section 2(a), and use all
commercially reasonable efforts to cause such Exchange Registration Statement to
become effective as promptly as practicable after filing;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each broker-dealer holding
Exchange Securities with such number of copies of the prospectus included therein
(as then amended or supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act, as such
broker-dealer reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or received copies
of the prospectus included in such Exchange Registration Statement, and confirm such
advice in writing, (A) when such Exchange Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Exchange Registration Statement
or any post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the Commission for
amendments or supplements to such Exchange Registration Statement or prospectus or
for additional information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) if at any time
the representations and warranties of the Company contemplated
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by Section 5 cease to be true and correct in all material respects,
(E) of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (F) of the occurrence
of any event that causes the Company to become an “ineligible issuer” as defined in
Rule 405, or (G) if at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act or contains an 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 light of the
circumstances then existing;
(iv) in the event that the Company and the Guarantors would be required,
pursuant to Section 3(c)(iii)(G), to notify any broker-dealers holding Exchange
Securities (except as otherwise permitted during any Suspension Period), promptly
prepare and furnish to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to purchasers of
such Exchange Securities during the Resale Period, such prospectus shall conform in
all material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and shall not contain an 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 light of the circumstances then existing;
(v) use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(vi) use all commercially reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such jurisdictions
as are contemplated by Section 2(a) no later than the commencement of the Exchange
Offer, to the extent required by such laws, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the continuance
of offers, sales and dealings therein in such jurisdictions until the expiration of
the Resale Period, (C) take any and all other actions as may be reasonably necessary
or advisable to enable each broker-dealer holding Exchange Securities to consummate
the disposition thereof in such jurisdictions and (D) obtain the consent or approval
of each governmental agency or authority, whether federal, state or local, which may
be required to effect the Exchange Registration, the Exchange Offer and the offering
and sale of Exchange Securities by broker-dealers during the Resale Period;
provided, however, that neither the Company nor the Guarantors shall be required for
any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general service of process in any such jurisdiction
or become subject to taxation in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or other governing documents or any
agreement between it and its stockholders;
(vii) obtain a CUSIP number for all Exchange Securities, not later than the
applicable Effective Time; and
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(viii) comply with all applicable rules and regulations of the Commission, and
make generally available to its securityholders no later than eighteen months after
the Effective Time of such Exchange Registration Statement, an “earning statement”
of the Company and its subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158 thereunder).
(d) In connection with the Company’s and the Guarantors’ obligations with
respect to the Shelf Registration, if applicable, the Company and the Guarantors
shall:
(i) prepare and file with the Commission, within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may be utilized by
the Company and which shall register all of the Registrable Securities for resale by
the holders thereof in accordance with such method or methods of disposition as may
be specified by the holders of Registrable Securities as, from time to time, may be
Electing Holders and use all commercially reasonable efforts to cause such Shelf
Registration Statement to become effective as promptly as practicable after filing;
(ii) mail the Notice and Questionnaire to the holders of Registrable Securities
(A) not less than 30 days prior to the anticipated Effective Time of the Shelf
Registration Statement or (B) in the case of an “automatic shelf registration
statement” (as defined in Rule 405), mail the Notice and Questionnaire to the
holders of Registrable Securities not later than the Effective Time of such Shelf
Registration Statement, and in any such case no holder shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement, and no holder shall
be entitled to use the prospectus forming a part thereof for resales of Registrable
Securities at any time, unless and until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement, upon the
request of any holder of Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder; provided that the Company
shall not be required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such holder to use
the prospectus forming a part thereof for resales of Registrable Securities until
such holder has returned a completed and signed Notice and Questionnaire to the
Company;
(iv) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in Section 2(b) and as
may be required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration Statement, and
furnish to the Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the Commission to the
extent such documents are not publicly available on the Commission’s IDEA System;
(v) comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Shelf Registration
Statement in accordance with the intended methods of disposition by the Electing
Holders provided for in such Shelf Registration Statement;
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(vi) provide the Electing Holders and not more than one counsel for all the
Electing Holders the reasonable opportunity to participate in the preparation of
such Shelf Registration Statement, each prospectus included therein or filed with
the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in Section 2(b), make available at
reasonable times at the Company’s principal place of business or such other
reasonable place for inspection by the persons referred to in Section 3(d)(vi) who
shall certify to the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the officers, employees,
counsel and independent certified public accountants of the Company to respond to
such inquiries, as shall be reasonably necessary (and in the case of counsel, not
violate an attorney-client privilege, in such counsel’s reasonable belief), in the
judgment of the respective counsel referred to in Section 3(d)(vi), to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act;
provided, however, that the foregoing inspection and information gathering on behalf
of the Electing Holders shall be conducted by one counsel designated by the holders
of at least a majority in aggregate principal amount of the Registrable Securities
held by the Electing Holders at the time outstanding and provided further that each
such party shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the Company as
being confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such Shelf Registration
Statement or otherwise), or (B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the requirements of
such order, and only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information is required to be set
forth in such Shelf Registration Statement or the prospectus included therein or in
an amendment to such Shelf Registration Statement or an amendment or supplement to
such prospectus in order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with applicable requirements
of the federal securities laws and the rules and regulations of the Commission and
does not contain an untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders and confirm such advice in
writing, (A) when such Shelf Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any comments by
the Commission and by the blue sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation or threatening
of any proceedings for that purpose, (D) if at any time the representations and
warranties of the Company set forth in Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for such
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purpose, (F) the occurrence of any event that causes the Company to become an
“ineligible issuer” as defined in Rule 405, or (G) if at any time when a prospectus
is required to be delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act or contains an 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 light of the
circumstances then existing;
(ix) use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Shelf Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(x) if requested by any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such Electing Holder
specifies should be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the principal amount
of Registrable Securities being sold by such Electing Holder, the name and
description of such Electing Holder, the offering price of such Registrable
Securities and any discount, commission or other compensation payable in respect
thereof and with respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder; and make all required filings of such
prospectus supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(xi) furnish to each Electing Holder and the counsel referred to in Section
3(d)(vi) an executed copy (or a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case including all
exhibits thereto (in the case of an Electing Holder of Registrable Securities, upon
request) and documents incorporated by reference therein) and such number of copies
of such Shelf Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by such Electing
Holder) and of the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary prospectus), in conformity in
all material respects with the applicable requirements of the Securities Act and the
Trust Indenture Act to the extent such documents are not available through the
Commission’s IDEA System, and such other documents, as such Electing Holder may
reasonably request in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder and to permit such Electing
Holder to satisfy the prospectus delivery requirements of the Securities Act; and
subject to Section 3(e), the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment or supplement
thereto by each such Electing Holder (subject to any applicable Suspension Period),
in each case in the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or any supplement or
amendment thereto;
(xii) use all commercially reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration Statement under
such securities laws or blue sky laws of such jurisdictions as any Electing Holder
shall reasonably
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request, (B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration Statement is required
to remain effective under Section 2(b) and for so long as may be necessary to enable
any such Electing Holder to complete its distribution of Registrable Securities
pursuant to such Shelf Registration Statement, (C) take any and all other actions as
may be reasonably necessary or advisable to enable each such Electing Holder to
consummate the disposition in such jurisdictions of such Registrable Securities and
(D) obtain the consent or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Shelf Registration or
the offering or sale in connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their Registrable Securities;
provided, however, that neither the Company nor the Guarantor shall be required for
any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements of this
Section 3(d)(xii), (2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or other governing documents
or any agreement between it and its stockholders;
(xiii) unless any Registrable Securities shall be in book-entry only form,
cooperate with the Electing Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates, if so required by any securities exchange upon which any Registrable
Securities are listed, shall be printed, penned, lithographed, engraved or otherwise
produced by any combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends;
(xiv) obtain a CUSIP number for all Securities that have been registered under
the Securities Act, not later than the applicable Effective Time;
(xv) notify in writing each holder of Registrable Securities of any proposal by
the Company to amend or waive any provision of this Agreement pursuant to Section
9(h) and of any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as the case
may be; and
(xvi) comply with all applicable rules and regulations of the Commission, and
make generally available to its securityholders no later than eighteen months after
the Effective Time of such Shelf Registration Statement an “earning statement” of
the Company and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(G), to notify the Electing Holders, the Company shall promptly prepare
and furnish to each of the Electing Holders a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects to
the applicable requirements of the Securities Act and the Trust Indenture Act and
shall not contain an 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 light of the circumstances then existing. Each Electing Holder agrees
that upon receipt of any notice from the
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Company pursuant to Section 3(d)(viii)(G), such Electing Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until such Electing
Holder shall have received copies of such amended or supplemented prospectus, and if
so directed by the Company, such Electing Holder shall deliver to the Company (at
the Company’s expense) all copies, other than permanent file copies, of the
prospectus covering such Registrable Securities in such Electing Holder’s possession
at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice and Questionnaire, the
Company may require such Electing Holder to furnish to the Company such additional
information regarding such Electing Holder and such Electing Holder’s intended
method of distribution of Registrable Securities as may be required in order to
comply with the Securities Act. Each such Electing Holder agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Company or of the occurrence of
any event in either case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material fact
regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities or omits to state any material fact
regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any additional
information required to correct and update any previously furnished information or
required so that such prospectus shall not contain, with respect to such Electing
Holder or the disposition of such Registrable Securities, an 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 light of the
circumstances then existing.
(g) Until the expiration of one year after the Closing Date, the Company will
not, and will not permit any of its “affiliates” (as defined in Rule 144) who are
controlled by the Company to, resell any of the Securities that have been reacquired
by any of them except pursuant to an effective registration statement, or a valid
exemption from the registration requirements, under the Securities Act.
(h) As a condition to its participation in the Exchange Offer, each holder of
Registrable Securities shall furnish, upon the request of the Company, a written
representation to the Company (which may be contained in the letter of transmittal
or “agent’s message” transmitted via The Depository Trust Company’s Automated Tender
Offer Procedures, in either case contemplated by the Exchange Registration
Statement) to the effect that (A) it is not an “affiliate” of the Company, as
defined in Rule 405 of the Securities Act, or if it is such an “affiliate”, it will
comply with the registration and prospectus delivery requirements of the Securities
Act to the extent applicable, (B) it is not engaged in and does not intend to engage
in, and has no arrangement or understanding with any person to participate in, a
distribution of the Exchange Securities to be issued in the Exchange Offer, (C) it
is acquiring the Exchange Securities in its ordinary course of business, (D) if it
is a broker-dealer that holds Securities that were acquired for its own account as a
result of market-making activities or other trading activities (other than
Securities acquired directly from the Company or any of its affiliates), it will
deliver a prospectus meeting the requirements of the Securities Act in connection
with any resales of the
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Exchange Securities received by it in the Exchange Offer, (E) if it is a
broker-dealer, that it did not purchase the Securities to be exchanged in the
Exchange Offer from the Company or any of its affiliates, and (F) it is not acting
on behalf of any person who could not truthfully and completely make the
representations contained in the foregoing subclauses (A) through (E).
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all expenses incident to
the Company’s performance of or compliance with this Agreement, including (a) all Commission and
any FINRA registration, filing and review fees and expenses including reasonable fees and
disbursements of counsel for the Eligible Holders in connection with such registration, filing and
review, (b) all fees and expenses in connection with the qualification of the Registrable
Securities, the Securities and the Exchange Securities, as applicable, for offering and sale under
the State securities and blue sky laws referred to in Section 3(d)(xii) and determination of their
eligibility for investment under the laws of such jurisdictions as the Electing Holders may
designate, including any reasonable fees and disbursements of counsel for the Electing Holders in
connection with such qualification and determination, (c) all expenses relating to the preparation,
printing, production, distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing, the expenses of preparing the Securities or Exchange
Securities, as applicable, for delivery and the expenses of printing or producing any selling
agreements and blue sky or legal investment memoranda and all other documents in connection with
the offering, sale or delivery of Securities or Exchange Securities, as applicable, to be disposed
of (including certificates representing the Securities or Exchange Securities, as applicable), (d)
messenger, telephone and delivery expenses relating to the offering, sale or delivery of Securities
or Exchange Securities, as applicable, and the preparation of documents referred in clause (c)
above, (e) fees and expenses of the Trustee under the Indenture, any agent of the Trustee and any
counsel for the Trustee and of any collateral agent or custodian, (f) internal expenses (including
all salaries and expenses of the Company’s officers and employees performing legal or accounting
duties), (g) reasonable fees, disbursements and expenses of counsel and independent certified
public accountants of the Company, (h) reasonable fees, disbursements and expenses of one counsel
for the Electing Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the Registrable Securities
held by Electing Holders (which counsel shall be reasonably satisfactory to the Company), (i) any
fees charged by securities rating services for rating the Registrable Securities, the Securities or
the Exchange Securities, as applicable, and (j) fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with such registration
(collectively, the “Registration Expenses”). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities, Securities or Exchange
Securities, as applicable, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being registered shall pay
all agency fees and commissions and underwriting discounts and commissions, if any, and transfer
taxes, if any, attributable to the sale of such Registrable Securities, Securities and Exchange
Securities, as applicable, and the fees and disbursements of any counsel or other advisors or
experts retained by such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. Representations and Warranties.
Each of the Company and the Guarantors, jointly and severally, represents and warrants to, and
agrees with, each Purchaser and each of the holders from time to time of Registrable Securities
that:
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(a) Each registration statement covering Registrable Securities, Securities or
Exchange Securities, as applicable, and each prospectus (including any preliminary
or summary prospectus) contained therein or furnished pursuant to Section 3(c) or
Section 3(d) and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the Commission
will conform in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and will not contain an 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; and at all times subsequent to the Effective
Time when a prospectus would be required to be delivered under the Securities Act,
other than (A) from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(c)(iii)(G) or Section 3(d)(viii)(G)
until (ii) such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(c)(iv) or Section 3(e) or Section 3(j) or (B) during any
applicable Suspension Period, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(d), as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act and the Trust Indenture
Act and will not contain an 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 then existing; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus referred to in
Section 5(a), when they become or became effective or are or were filed with the
Commission, as the case may be, will conform or conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable, and
none of such documents will contain or contained an untrue statement of a material
fact or will omit or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the Company
by a holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated will not (i) conflict
in any material respect with or result in a material breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or
any of its subsidiaries is subject, (ii) result in any violation of the provisions
of the certificate of incorporation, as amended, or the by-laws or other governing
documents, as applicable, of the Company or the Guarantors or (iii) result in any
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the Company and the
Guarantors of the transactions contemplated by this Agreement, except (x) the
registration under the
-15-
Securities Act of the Registrable Securities, the Securities and the Exchange
Securities, as applicable, and qualification of the Indenture under the Trust
Indenture Act, (y) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky laws in
connection with the offering and distribution of the Registrable Securities, the
Securities and the Exchange Securities, as applicable, and (z) such consents,
approvals, authorizations, registrations or qualifications that have been obtained
and are in full force and effect as of the date hereof.
(d) This Agreement has been duly authorized, executed and delivered by the
Company and by the Guarantors.
6. Indemnification and Contribution.
(a) Indemnification by the Company and the Guarantors. The Company and the Guarantors,
jointly and severally, will indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement, each of the Electing Holders as
holders of Registrable Securities included in a Shelf Registration Statement against any
losses, claims, damages or liabilities, joint or several, to which such holder or such
Electing Holder may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in
any Exchange Registration Statement or any Shelf Registration Statement, as the case may be,
under which such Registrable Securities, Securities or Exchange Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus (including,
without limitation, any “issuer free writing prospectus” as defined in Rule 433) contained
therein or furnished by the Company to any such holder or any such Electing Holder, or any
amendment or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such holder and each such
Electing Holder for any and all legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company nor the Guarantors shall be liable to
any such person in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, or preliminary, final or
summary prospectus (including, without limitation, any “issuer free writing prospectus” as
defined in Rule 433), or amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by such person expressly for use therein.
(b) Indemnification by the Electing Holders. The Company may require, as a condition
to including any Registrable Securities in any Shelf Registration Statement filed pursuant
to Section 2(b), that the Company shall have received an undertaking reasonably satisfactory
to it from each Electing Holder of Registrable Securities included in such Shelf
Registration Statement, severally and not jointly, to (i) indemnify and hold harmless the
Company, the Guarantors and all other Electing Holders of Registrable Securities included in
such Shelf Registration Statement, against any losses, claims, damages or liabilities to
which the Company, the Guarantors or such other Electing Holders may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such registration statement, or any
preliminary, final or summary prospectus (including, without limitation, any “issuer free
writing prospectus” as defined in Rule 433) contained therein or furnished by the Company to
any Electing Holder, or any amendment or supplement thereto, or arise
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out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Electing Holder
expressly for use therein, and (ii) reimburse the Company and the Guarantors for any legal
or other expenses reasonably incurred by the Company and the Guarantors in connection with
investigating or defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to undertake liability to any person
under this Section 6(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holder’s Registrable
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an indemnifying
party pursuant to the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under the indemnification provisions of
or contemplated by Section 6(a) or Section 6(b). In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought hereunder (whether
or not the indemnified party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions contemplated by
Section 6(a) or Section 6(b) are unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified party shall
be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such indemnified party, and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it would not be just and
equitable if contributions
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pursuant to this Section 6(d) were determined by pro rata allocation (even if the
holders were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this Section
6(d). The amount paid or payable by an indemnified party as a result of the losses, claims,
damages, or liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Electing Holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds received by such
holder from the sale of any Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which such holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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. The holders’ obligations in
this Section 6(d) to contribute shall be several in proportion to the principal amount of
Registrable Securities registered by them and not joint.
(e) The obligations of the Company and the Guarantors under this Section 6 shall be in
addition to any liability which the Company or the Guarantors may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and partner of each
holder, each Electing Holder, and each person, if any, who controls any of the foregoing
within the meaning of the Securities Act; and the obligations of the holders and the
Electing Holders contemplated by this Section 6 shall be in addition to any liability which
the respective holder or Electing Holder may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company or the Guarantors
(including any person who, with his consent, is named in any registration statement as about
to become a director of the Company or any of the Guarantors) and to each person, if any,
who controls the Company within the meaning of the Securities Act, as well as to each
officer and director of the other holders and to each person, if any, who controls such
other holders within the meaning of the Securities Act.
7. Underwritten Offerings.
Each holder of Registrable Securities hereby agrees with the Company and each other such
holder that no holder of Registrable Securities may participate in any underwritten offering
hereunder unless (a) the Company gives its prior written consent to such underwritten offering, (b)
the managing underwriter or underwriters thereof shall be designated by Electing Holders holding at
least a majority in aggregate principal amount of the Registrable Securities to be included in such
offering, provided that such designated managing underwriter or underwriters is or are reasonably
acceptable to the Company, (c) each holder of Registrable Securities participating in such
underwritten offering agrees to sell such holder’s Registrable Securities on the basis provided in
any underwriting arrangements approved by the persons entitled selecting the managing underwriter
or underwriters hereunder and (d) each holder of Registrable Securities participating in such
underwritten offering completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms of such
underwriting arrangements. The Company hereby agrees with each holder of Registrable Securities
that, to the extent it consents to an underwritten offering hereunder, it will negotiate in good
faith and execute all indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements, including using all commercially reasonable
efforts to procure customary legal opinions and auditor “comfort” letters. No discounts or
commissions payable to any such underwriter with respect to the sales of Registrable Securities
sold by any such holder thereof shall be included in, or deemed to be, the registration expenses
payable by the Company pursuant to Section 4.
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8. Rule 144.
(a) Facilitation of Sales Pursuant to Rule 144. The Company covenants to the holders
of Registrable Securities that to the extent it shall be required to do so under the
Exchange Act, the Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall take such further
action as any holder of Registrable Securities 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 limitations of the exemption provided by
Rule 144. Upon the request of any holder of Registrable Securities in connection with that
holder’s sale pursuant to Rule 144, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements.
(b) Availability of Rule 144 Not Excuse for Obligations under Section 2. The fact that
holders of Registrable Securities may become eligible to sell such Registrable Securities
pursuant to Rule 144 shall not (1) cause such Securities to cease to be Registrable
Securities or (2) excuse the Company’s and the Guarantors’ obligations set forth in Section
2 of this Agreement, including without limitation the obligations in respect of an Exchange
Offer, Shelf Registration and Special Interest.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants, covenants and agrees
that it has not granted, and shall not grant, registration rights with respect to
Registrable Securities, Exchange Securities or Securities, as applicable, or any other
securities which would be inconsistent with the terms contained in this Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would be no
adequate remedy at law if the Company fails to perform any of its obligations hereunder and
that the Purchasers and the holders from time to time of the Registrable Securities may be
irreparably harmed by any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of the Company under
this Agreement in accordance with the terms and conditions of this Agreement, in any court
of the United States or any State thereof having jurisdiction. Time shall be of the essence
in this Agreement.
(c) Notices. All notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered by
hand, if delivered personally, by facsimile or by courier, or three days after being
deposited in the mail (registered or certified mail, postage prepaid, return receipt
requested) as follows: If to the Company, to it at Xxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000, and if to a holder, to the address of such holder set forth in the security register
or other records of the Company, or to such other address as the Company or any such holder
may have furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto,
the holders from time to time of the Registrable Securities and the respective successors
and assigns of the foregoing. In the event that any transferee of any holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any further writing
or action of any kind, be deemed a
-19-
beneficiary hereof for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by all of the applicable terms and provisions of this
Agreement. If the Company shall so request, any such successor, assign or transferee shall
agree in writing to acquire and hold the Registrable Securities subject to all of the
applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations, warranties and
each other provision set forth in this Agreement or made pursuant hereto shall remain in
full force and effect regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any holder of Registrable Securities, any director, officer
or partner of such holder, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the Purchase
Agreement, the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(f) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and paragraphs of this
Agreement are inserted for convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other writings referred to
herein (including the Indenture and the form of Securities) or delivered pursuant hereto
which form a part hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and understandings between
the parties with respect to its subject matter. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority in aggregate principal amount
of the Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable Securities or is delivered
to such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this Agreement and a
complete list of the names and addresses of all the record holders of Registrable Securities
shall be made available for inspection and copying on any Business Day by any holder of
Registrable Securities for proper purposes only (which shall include any purpose related to
the rights of the holders of Registrable Securities under the Securities, the Indenture and
this Agreement) at the offices of the Company at the address thereof set forth in Section
9(c) and at the office of the Trustee under the Indenture.
(j) Counterparts. This Agreement may be executed by the parties in counterparts, each
of which shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
(k) Severability. If any provision of this Agreement, or the application thereof in
any circumstance, is held to be invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of such provision in every other respect
and of the remaining provisions contained in this Agreement shall not be affected or
impaired thereby.
-20-
(l) Submission to Jurisdiction. The Company and the Guarantors hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in
The City of New York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby. The Company and the Guarantors irrevocably and
unconditionally waive any objection to the laying of venue of any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby in Federal and
state courts in the Borough of Manhattan in The City of New York and irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any such suit
or proceeding in any such court has been brought in an inconvenient forum.
-21-
If the foregoing is in accordance with your understanding, please sign and return to us one
for the Company, the Guarantors and the Representative plus one for each counsel counterparts
hereof, and upon the acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement between each of the Purchasers, the
Guarantors and the Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement among Purchasers,
the form of which shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
| Very truly yours, VALEANT PHARMACEUTICALS INTERNATIONAL |
||||
| By: | /s/ J. Xxxxxxx Xxxxxxx | |||
| Name: | J. Xxxxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
-22-
| GUARANTORS: AMARIN PHARMACEUTICALS INC. |
||||
| By: | /s/ Xxxxx X. Min | |||
| Name: | Xxxxx X. Min | |||
| Title: | President | |||
| HARBOR PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxxx X. Min | |||
| Name: | Xxxxx X. Min | |||
| Title: | President | |||
| HEALTHCHOICE ONLINE, LLC |
||||
| By: | /s/ Xxxxx X. Min | |||
| Name: | Xxxxx X. Min | |||
| Title: | Managing Officer | |||
| XXXXXX CAPITAL, INC. |
||||
| By: | /s/ Xxxxx X. Min | |||
| Name: | Xxxxx X. Min | |||
| Title: | President | |||
| ICN SOUTHEAST, INC. |
||||
| By: | /s/ Xxxxx X. Min | |||
| Name: | Xxxxx X. Min | |||
| Title: | President | |||
-23-
| OCEANSIDE PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxxx X. Min | |||
| Name: | Xxxxx X. Min | |||
| Title: | President | |||
| VALEANT CHINA, INC. |
||||
| By: | /s/ Xxxxx X. Min | |||
| Name: | Xxxxx X. Min | |||
| Title: | President | |||
-24-
| ICN MEDICAL ALLIANCE, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President & Treasurer | |||
| VALEANT BIOMEDICALS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President & Treasurer | |||
-00-
| XXXXXXX XXXXXXXXXXXXXXX XXXXX
XXXXXXX |
||||
| By: | /s/ J. Xxxxxxx Xxxxxxx | |||
| Name: | J. Xxxxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| XXXXX LABORATORIES, LTD. |
||||
| By: | /s/ J. Xxxxxxx Xxxxxxx | |||
| Name: | J. Xxxxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| DOW PHARMACEUTICAL SCIENCES, INC. |
||||
| By: | /s/ J. Xxxxxxx Xxxxxxx | |||
| Name: | J. Xxxxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
-26-
| Accepted as of the date hereof: | ||||
| XXXXXXX, XXXXX & CO. | ||||
By:
|
/s/ Xxxxxxx, Sachs & Co.
|
|||
| (Xxxxxxx, Xxxxx & Co.) | ||||
| On behalf of each of the Purchasers | ||||
-27-
Exhibit A
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT — IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] a
The Depository Trust Company (“DTC”) has identified you as a DTC Participant through which
beneficial interests in the Valeant Pharmaceuticals International (the “Company”) 7.625% Senior
Notes due 2020 (the “Securities”) are held.
The Company is in the process of registering the Securities under the Securities Act of 1933 for
resale by the beneficial owners thereof. In order to have their Securities included in the
registration statement, beneficial owners must complete and return the enclosed Notice of
Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the enclosed
materials as soon as possible as their rights to have the Securities included in the
registration statement depend upon their returning the Notice and
Questionnaire by [ ]. Please forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Valeant Pharmaceuticals International,
Xxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, (000) 000-0000.
| a | Not less than 28 calendar days from date of mailing. |
A-1
Notice of Registration Statement
and
Selling Securityholder Questionnaire
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the “Exchange and
Registration Rights Agreement”) between Valeant Pharmaceuticals International (the “Company”) and
the Purchasers named therein. Pursuant to the Exchange and Registration Rights Agreement, the
Company has filed or will file with the United States Securities and Exchange Commission (the
“Commission”) a registration statement on Form [ ] (the “Shelf Registration Statement”) for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities
Act”), of the Company’s 7.625% Senior Notes due 2020 (the “Securities”). A copy of the Exchange
and Registration Rights Agreement has been filed as an exhibit to the Shelf Registration Statement
and can be obtained from the Commission’s website at xxx.xxx.xxx. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Exchange and Registration
Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf Registration Statement. In
order to have Registrable Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire (“Notice and Questionnaire”) must
be completed, executed and delivered to the Company’s counsel at the address set forth herein for
receipt ON OR BEFORE [ ]. Beneficial owners of Registrable Securities who do not
properly complete, execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii) may not use the
Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus. Accordingly, holders and beneficial owners of
Registrable Securities are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term “Registrable Securities” is defined in the Exchange and Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the “Selling Securityholder”) of Registrable Securities hereby elects to
include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and
listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Registrable Securities by the terms and conditions of this
Notice and Questionnaire and the Exchange and Registration Rights Agreement, including, without
limitation, Section 6 of the Exchange and Registration Rights Agreement, as if the undersigned
Selling Securityholder were an original party thereto.
Pursuant to the Exchange and Registration Rights Agreement, the undersigned has agreed to indemnify
and hold harmless the Company, its officers who sign any Shelf Registration Statement, and each
person, if any, who controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), against
certain loses arising out of an untrue statement, or the alleged untrue statement, of a material
fact in the Shelf Registration Statement or the related prospectus or the omission, or alleged
omission, to state a material fact required to be stated in such Shelf Registration Statement or
the related prospectus, but only to the extent such untrue statement or omission, or alleged untrue
statement or omission, was made in reliance on and in conformity with the information provided in
this Notice and Questionnaire.
Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling
Securityholder will be required to deliver to the Company and Trustee the Notice of Transfer set
forth in Appendix A to the Prospectus and as Exhibit B to the Exchange and Registration Rights
Agreement.
The Selling Securityholder hereby provides the following information to the Company and represents
and warrants that such information is accurate and complete:
A-3
QUESTIONNAIRE
(1)
|
(a) | Full legal name of Selling Securityholder: | ||||
| (b) | Full legal name of registered Holder (if not the same as in (a) above) of Registrable Securities listed in Item (3) below: | |||||
| (c) | Full legal name of DTC Participant (if applicable and if not the same as (b) above) through which Registrable Securities listed in Item (3) below are held: | |||||
| (2) | Address for notices to Selling Securityholder: | |||||
| Telephone: |
||||||
| Fax: |
||||||
| Contact Person: |
||||||
| E-mail for Contact Person: |
||||||
| (3) | Beneficial Ownership of Securities: | |||||
| Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities. | ||||||
| (a) | Principal amount of Registrable Securities beneficially owned: | |||||
| CUSIP No(s). of such Registrable Securities: | ||||||
| (b) | Principal amount of Securities other than Registrable Securities beneficially owned: | |||||
| CUSIP No(s). of such other Securities: | ||||||
| (c) | Principal amount of Registrable Securities that the undersigned wishes to be included in the Shelf Registration Statement: | |||||
| CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement: | ||||||
| (4) | Beneficial Ownership of Other Securities of the Company: | |||||
| Except as set forth below in this Item (4), the undersigned Selling Securityholder is not the beneficial or registered owner of any other securities of the Company, other than the Securities listed above in Item (3). | ||||||
| State any exceptions here: | ||||||
A-4
| (5) | Individuals who exercise dispositive powers with respect to the Securities: |
| If the Selling Securityholder is not an entity that is required to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (a “Reporting Company”), then the Selling Securityholder must disclose the name of the natural person(s) who exercise sole or shared dispositive powers with respect to the Securities. Selling Securityholders should disclose the beneficial holders, not nominee holders or other such others of record. In addition, the Commission has provided guidance that Rule 13d-3 of the Securities Exchange Act of 1934 should be used by analogy when determining the person or persons sharing voting and/or dispositive powers with respect to the Securities. |
| (a) | Is the holder a Reporting Company? |
| Yes o No o |
| If “No”, please answer Item (5)(b). |
| (b) | List below the individual or individuals who exercise dispositive powers with respect to the Securities: |
| Please note that the names of the persons listed in (b) above will be included in the Shelf Registration Statement and related Prospectus. |
| (6) | Relationships with the Company: |
| Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. |
| State any exceptions here: |
| (7) | Plan of Distribution: |
| Except as set forth below, the undersigned Selling Securityholder intends to distribute the Registrable Securities listed above in Item (3) only as follows (if at all): Such Registrable Securities may be sold from time to time directly by the undersigned Selling Securityholder. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Registered Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Registrable Securities or otherwise, the Selling Securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Securities in the course of hedging the positions they assume. |
A-5
| The Selling Securityholder may also sell Registrable Securities short and deliver Registrable Securities to close out such short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities. |
| State any exceptions here: |
| Note: In no event may such method(s) of distribution take the form of an underwritten offering of Registrable Securities without the prior written agreement of the Company. |
| (8) | Broker-Dealers: |
| The Commission requires that all Selling Securityholders that are registered broker-dealers or affiliates of registered broker-dealers be so identified in the Shelf Registration Statement. In addition, the Commission requires that all Selling Securityholders that are registered broker-dealers be named as underwriters in the Shelf Registration Statement and related Prospectus, even if they did not receive the Registrable Securities as compensation for underwriting activities. |
| (a) | State whether the undersigned Selling Securityholder is a registered broker-dealer: |
| Yes o No o |
| (b) | If the answer to (a) is “Yes”, you must answer (i) and (ii) below, and (iii) below if applicable. Your answers to (i) and (ii) below, and (iii) below if applicable, will be included in the Shelf Registration Statement and related Prospectus. |
| (i) | Were the Securities acquired as compensation for underwriting activities? |
| Yes o No o |
| If you answered “Yes”, please provide a brief description of the transaction(s) in which the Securities were acquired as compensation: |
| (ii) | Were the Securities acquired for investment purposes? | ||
| Yes o No o | |||
| (iii) | If you answered “No” to both (i) and (ii), please explain the Selling Securityholder’s reason for acquiring the Securities: |
| (c) | State whether the undersigned Selling Securityholder is an affiliate of a registered broker-dealer and, if so, list the name(s) of the broker-dealer affiliate(s): |
| Yes o No o |
A-6
| (d) | If you answered “Yes” to question (c) above: |
| (i) | Did the undersigned Selling Securityholder purchase Registrable Securities in the ordinary course of business? |
| Yes o No o |
| If the answer is “No” to question (d)(i), provide a brief explanation of the circumstances in which the Selling Securityholder acquired the Registrable Securities: |
| (ii) | At the time of the purchase of the Registrable Securities, did the undersigned Selling Securityholder have any agreements, understandings or arrangements, directly or indirectly, with any person to dispose of or distribute the Registrable Securities? |
| Yes o No o |
| If the answer is “Yes” to question (d)(ii), provide a brief explanation of such agreements, understandings or arrangements: |
| If the answer is “No” to Item (8)(d)(i) or “Yes” to Item (8)(d)(ii), you will be named as an underwriter in the Shelf Registration Statement and the related Prospectus. |
| (9) | Hedging and short sales: |
| (a) | State whether the undersigned Selling Securityholder has or will enter into “hedging transactions” with respect to the Registrable Securities: | ||
| Yes o No o | |||
| If “Yes”, provide below a complete description of the hedging transactions into which the undersigned Selling Securityholder has entered or will enter and the purpose of such hedging transactions, including the extent to which such hedging transactions remain in place: |
| (b) | Set forth below is Interpretation A.65 of the Commission’s July 1997 Manual of Publicly Available Interpretations regarding short selling: | ||
| “An issuer filed a Form S-3 registration statement for a secondary offering of common stock which is not yet effective. One of the selling shareholders wanted to do a short sale |
A-7
| of common stock “against the box” and cover the short sale with registered shares after the effective date. The issuer was advised that the short sale could not be made before the registration statement becomes effective, because the shares underlying the short sale are deemed to be sold at the time such sale is made. There would, therefore, be a violation of Section 5 if the shares were effectively sold prior to the effective date.” | |||
| By returning this Notice and Questionnaire, the undersigned Selling Securityholder will be deemed to be aware of the foregoing interpretation. |
* * * * *
By signing below, the Selling Securityholder acknowledges that it understands its obligation to
comply, and agrees that it will comply, with the provisions of the Exchange Act, particularly
Regulation M (or any successor rule or regulation).
The Selling Securityholder hereby acknowledges its obligations under the Exchange and Registration
Rights Agreement to indemnify and hold harmless the Company and certain other persons as set forth
in the Exchange and Registration Rights Agreement.
In the event that the Selling Securityholder transfers all or any portion of the Registrable
Securities listed in Item (3) above after the date on which such information is provided to the
Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer
of its rights and obligations under this Notice and Questionnaire and the Exchange and Registration
Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the information
contained herein in its answers to Items (1) through (9) above and the inclusion of such
information in the Shelf Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder’s obligation under Section 3(d) of the Exchange and
Registration Rights Agreement to provide such information as may be required by law for inclusion
in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the
Company of any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect
and to provide such additional information that the Company may reasonably request regarding such
Selling Securityholder and the intended method of distribution of Registrable Securities in order
to comply with the Securities Act. Except as otherwise provided in the Exchange and Registration
Rights Agreement, all notices hereunder and pursuant to the Exchange and Registration Rights
Agreement shall be made in writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i)
|
To the Company: | |||||||
(ii)
|
With a copy to: | |||||||
A-8
Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the
Company’s counsel, the terms of this Notice and Questionnaire, and the representations and
warranties contained herein, shall be binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This Notice and Questionnaire
shall be governed in all respects by the laws of the State of New York.
A-9
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated:
| Selling Securityholder | ||||
| (Print/type full legal name of beneficial owner of Registrable Securities) | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [ ] TO THE COMPANY’S COUNSEL AT:
A-10
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York Mellon Trust Company, N.A.
Valeant Pharmaceuticals International
x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Valeant Pharmaceuticals International
x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust
| Re: Valeant Pharmaceuticals International (the “Company”) 7.625% Senior Notes due 2020 |
Dear Sirs:
Please be
advised that
has transferred
$
aggregate principal amount of the above-referenced
Notes pursuant to an effective Registration Statement on Form [ ]
(File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933,
as amended, have been satisfied and that the above-named beneficial owner of the Notes is named as
a “Selling Holder” in the Prospectus dated
[ ] or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such Prospectus
opposite such owner’s name.
Dated:
| Very truly yours, |
||||
|
(Name) |
||||
| By: | ||||
| (Authorized Signature) | ||||
