EXHIBIT 4.3
BAUSCH & LOMB INCORPORATED
FLOATING RATE CONVERTIBLE SENIOR NOTES DUE 2023
REGISTRATION RIGHTS AGREEMENT
August 4, 2003
Citigroup Global Markets Inc.
As Representative of the Initial Purchasers
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Bausch & Lomb Incorporated, a corporation organized under the laws of
New York (the "Company"), proposes to issue and sell to certain purchasers (the
"Initial Purchasers"), for whom you (the "Representative") are acting as
representative, its Floating Rate Convertible Senior Notes due 2023 (the
"Securities"), upon the terms set forth in the Purchase Agreement between the
Company and the Representative dated July 29, 2003 (the "Purchase Agreement")
relating to the initial placement (the "Initial Placement") of the Securities.
To induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition to your obligations thereunder, the Company agrees with you
(i) for your benefit and (ii) for the benefit of the holders (including the
Initial Purchasers)from time to time of the Securities and the Common Stock, par
value $0.40 per share (the "Stock") (each a "Holder" and, collectively, the
"Holders"), as follows:
1. DEFINITIONS. (a) Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 405 under the Act
and the terms "controlling" and "controlled" shall have meanings correlative
thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Closing Date" shall mean the date of the first issuance of the
Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Deferral Period" shall have the meaning indicated in Section 3(i)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Final Memorandum" shall mean the offering memorandum, dated July 29,
2003, relating to the Securities, including any and all exhibits thereto and any
information incorporated by reference therein as of such date.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of September 21, 1991, between the Company and Citibank, N.A., as trustee, as
the same may be amended from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 5(d) hereof.
"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate original principal amount of Securities registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that administer an underwritten offering, if
any, conducted pursuant to Section 6 hereof.
"NASD Rules" shall mean the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc.
"Notice and Questionnaire" shall mean a written notice delivered to
the Company substantially in the form attached as Annex A to the Final
Memorandum.
"Notice Holder" shall mean, on any date, any Holder of Registrable
Securities that has delivered a Notice and Questionnaire to the Company on or
prior to such date.
"Prospectus" shall mean a prospectus included in the Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Shelf Registration Statement, and all amendments and supplements thereto,
including any and all exhibits thereto and any information incorporated by
reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
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"Registrable Securities" shall mean Securities and the shares of Stock
issuable upon conversion of such Securities, other than those that have been (i)
registered under the Shelf Registration Statement and disposed of in accordance
therewith or (ii) distributed to the public pursuant to Rule 144 under the Act
or any successor rule or regulation thereto that may be adopted by the
Commission.
"Registration Default Damages" shall have the meaning set forth in
Section 7 hereof.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration Period" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2 hereof which
covers some or all of the Registrable Securities on an appropriate form under
Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"underwriter" shall mean any underwriter of Registrable Securities in
connection with an offering thereof under the Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of the
"original principal amount" of Registrable Securities, Stock shall be treated as
representing the original principal amount of Securities which was surrendered
for conversion or exchange in order to receive such number of shares of Common
Stock.
2. SHELF REGISTRATION. (a) The Company shall as promptly as
practicable (but in no event more than 90 days after the Closing Date) file with
the Commission 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, from time to time in accordance with the methods of
distribution elected by such Holders, pursuant to Rule 415 under the Act or any
similar rule that may be adopted by the Commission.
(b) The Company shall use its reasonable best efforts to cause the
Shelf Registration Statement to become or be declared effective under the Act no
later than 180 days after the Closing Date.
(c) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming part thereof to
be usable by Holders for a period
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(the "Shelf Registration Period") from the date the Shelf Registration Statement
is declared effective by the Commission until the earlier of (i) the latest of
the second anniversary of (a) the Closing Date, (b) the last date on which any
Securities are issued upon exercise of the Initial Purchasers' option or (c) the
last date on which any unregistered Stock is issued or issuable upon conversion
of the Securities; (ii) the date on which the Securities and the unregistered
Stock issuable upon their conversion may be sold by non-affiliates of the
Company pursuant to paragraph (k) of Rule 144 (or any successor provision)
promulgated by the SEC under the Act; (iii) the date as of which all the
Securities and the unregistered Stock issuable upon their conversion have been
sold under Rule 144 under the Act (or any similar provision then in force) and
(iv) the date as of which all the Securities or the Stock issuable upon their
conversion have been sold pursuant to the Shelf Registration Statement. The
Company shall be deemed not to have used its reasonable best efforts to keep the
Shelf Registration Statement effective during the Shelf Registration Period if
it voluntarily takes any action that would result in Holders of Registrable
Securities not being able to offer and sell such Registrable Securities at any
time during the Shelf Registration Period, unless such action is (x) required by
applicable law or otherwise undertaken by the Company in good faith and for
valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, and (y)
permitted by Section 3(i) hereof.
(d) The Company shall cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement or such amendment or supplement, (i) to
comply in all material respects with the applicable requirements of the Act; and
(ii) not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(e) Each Holder of Registrable Securities agrees to deliver a Notice
and Questionnaire to the Company at least three Business Days prior to any
distribution by it of Registrable Securities under the Shelf Registration
Statement. From and after the date the Shelf Registration Statement is declared
effective, the Company shall, as promptly as is practicable after the date a
Notice and Questionnaire is delivered, and in any event within the later of ten
(10) Business Days after such date, or ten (10) Business Days after the
expiration of any Deferral Period in effect when the Notice and Questionnaire
are delivered or which comes into effect within ten (10) Business Days of such
delivery: (i) if required by applicable law, file with the Commission a
post-effective amendment to the Shelf Registration Statement or prepare and, if
required by applicable law, file a supplement to the related Prospectus or an
amendment or supplement to any document incorporated therein by reference or
file any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling holder in the Shelf Registration Statement
and the related Prospectus and so that such Holder is permitted to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement, use its reasonable best efforts to cause such
post-effective amendment to be declared effective under the Act as promptly as
is practicable; (ii) provide such Holder copies of any documents filed pursuant
to Section 2(e)(i) hereof; and (iii) notify such Holder as promptly as
practicable after the effectiveness under the Act of any post-effective
amendment filed pursuant to Section 2(e)(i) hereof; PROVIDED, that if such
Notice and Questionnaire is
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delivered during a Deferral Period, the Company shall so inform the Holder
delivering such Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(i) hereof. Notwithstanding anything contained herein
to the contrary, the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling holder in the Shelf Registration
Statement or related Prospectus; PROVIDED, HOWEVER, that any Holder that becomes
a Notice Holder pursuant to the provisions of this Section 2(e) (whether or not
such Holder was a Notice Holder at the time the Shelf Registration Statement was
declared effective) shall be named as a selling holder in the Shelf Registration
Statement or related Prospectus in accordance with the requirements of this
Section 2(e).
(f) If at any time, the Securities, pursuant to their terms, are
convertible into securities other than Stock, the Company shall, or shall cause
any successor under the Indenture to, cause such securities to be included in
the Shelf Registration Statement no later than the date on which the Securities
may then be convertible into such securities.
3. REGISTRATION PROCEDURES. The following provisions shall apply in
connection with the Shelf Registration Statement.
(a) The Company shall:
(i) furnish to the Representative and to counsel for the Notice
Holders, not less than five Business Days prior to the filing thereof
with the Commission, a copy of the Shelf Registration Statement and
each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein and shall use its reasonable best
efforts to reflect in each such Shelf Registration Statement,
Prospectus or supplement or amendment to either document, when so
filed with the Commission, such comments as the Representative
reasonably and timely proposes; and
(ii) include information regarding the Notice Holders and the
methods of distribution they have elected for their Registrable
Securities provided to the Company in Notices and Questionnaires as
necessary to permit such distribution by the methods specified
therein.
(b) The Company shall ensure that:
(i) the Shelf Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with the Act; and
(ii) the Shelf Registration Statement and any amendment thereto
does not, when it becomes effective, 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.
(c) The Company shall advise the Representative, the Notice Holders
and any underwriter that has provided in writing to the Company a telephone or
facsimile number and
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address for notices, and confirm such advice by notice in writing (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the Prospectus until the Company shall have remedied the
basis for such suspension):
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Shelf Registration Statement or the Prospectus or
for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the receipt by the Company of notice from the Commission of the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities included therein for sale in any jurisdiction, or the
receipt by the Company of notice from the applicable governmental
authority of the institution or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires any change in
the Shelf Registration Statement or the Prospectus so that, as of such
date, they (A) do not contain any untrue statement of a material fact
and (B) do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of
the Prospectus, in the light of the circumstances under which they
were made) not misleading.
(d) The Company shall use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of the Shelf Registration
Statement or the qualification of the Registrable Securities therein for sale in
any jurisdiction and, if issued, to obtain as soon as possible the withdrawal
thereof.
(e) The Company shall furnish to each Notice Holder, without charge,
at least one copy of the Shelf Registration Statement and any post-effective
amendment thereto, and, if a Notice Holder so requests in writing, all exhibits
thereto (other than exhibits incorporated by reference therein).
(f) During the Shelf Registration Period, the Company shall promptly
deliver to each Initial Purchaser, each Notice Holder, and any sales or
placement agents or underwriters acting on their behalf, without charge, as many
copies of the Prospectus (including the preliminary Prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as any such
person may reasonably request. The Company consents to the use of the Prospectus
or any amendment or supplement thereto by each of the foregoing in connection
with the offering and sale of the Registrable Securities except during any
Deferral Period.
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(g) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall use its reasonable best efforts
to register or qualify the Registrable Securities for sale under the laws of
such jurisdictions as any Notice Holder shall reasonably request in writing and
shall maintain such qualification in effect the Registration Period; provided
that in no event shall the Company be obligated to qualify to do business as a
foreign corporation or a dealer in securities in any jurisdiction where it is
not then so qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the Initial Placement or any
offering pursuant to the Shelf Registration Statement, or taxes in any
jurisdiction where it is not then so subject.
(h) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly (or within the time period
provided for by Section 3(i) hereof, if applicable) prepare a post-effective
amendment to the Shelf Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document so that, as
thereafter delivered to Initial Purchasers of the securities included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(i) Upon the occurrence or existence of any material event that, in
the reasonable judgment of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related Prospectus, the
Company shall give notice (without notice of the nature or details of such
events) to the Notice Holders that the availability of the Shelf Registration is
suspended and, upon actual receipt of any such notice, each Notice Holder agrees
not to sell any Registrable Securities pursuant to the Shelf Registration until
such Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(i) hereof, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The period during which the availability of the
Shelf Registration and any Prospectus is suspended (the "Deferral Period") shall
not exceed 30 days in any three-month period or 90 days in any twelve-month
period.
(j) Not later than the effective date of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Securities
registered under the Shelf Registration Statement and provide the Trustee with
printed certificates for such Securities, free of any restrictive legends, in a
form eligible for deposit with The Depository Trust Company.
(k) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders an earnings statement satisfying the provisions of Section 11(a) of the
Act as soon as practicable after the effective date of the Shelf Registration
Statement and in any event no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the Shelf Registration Statement.
(l) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
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(m) The Company may require each Holder of Registrable Securities to
be sold pursuant to the Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably require for inclusion
in the Shelf Registration Statement. The Company may exclude from the Shelf
Registration Statement the Registrable Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(n) The Company shall enter into customary agreements (including, if
requested, an underwriting agreement in customary form) and take all other
appropriate actions in order to expedite or facilitate the registration or the
disposition of the Registrable Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 5 hereof.
(o) Upon the effectiveness of the Shelf Registration Statement, the
Company shall:
(i) make reasonably available during normal business hours for
inspection by the Holders of Registrable Securities to be registered
thereunder, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such underwriter all
relevant financial and other records and pertinent corporate documents
of the Company and its subsidiaries;
(ii) cause the Company's officers, directors, employees,
accountants and auditors to make reasonably available all relevant
information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any the
Shelf Registration Statement as is customary for similar due diligence
examinations;
(iii) make such representations and warranties to the Holders of
Registrable Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of
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any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each selling Holder of
Registrable Securities registered thereunder and the underwriters, if
any, in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders or the Managing
Underwriters, if any, including those to evidence compliance with
Section 3(i) hereof and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (o)
shall be performed at (A) the effectiveness of the Shelf Registration Statement
and each post-effective amendment thereto (other than a post-effective amendment
providing solely for a change or addition to the list of selling
securityholders); and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(p) The Company shall use its reasonable best efforts to confirm that
the ratings of the Securities prior to the initial sale of such Securities will
apply to the Securities covered by the Shelf Registration Statement.
(q) The Company will use its reasonable best efforts to cause the
Stock issuable upon conversion thereof to be listed for quotation on the New
York Stock Exchange or other stock exchange or trading system on which the Stock
primarily trades on or prior to the effective date of any Shelf Registration
Statement hereunder.
(r) In the event that any Broker-Dealer shall underwrite any
Registrable Securities or participate as a member of an underwriting syndicate
or selling group or "assist in the distribution" (within the meaning of the NASD
Rules) thereof, whether as a Holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company shall assist such Broker-Dealer in complying
with the NASD Rules.
(s) The Company shall use its reasonable best efforts to take
all other steps necessary to effect the registration of the Securities and the
common stock issuable upon conversion thereof covered by the Shelf Registration
Statement.
4. REGISTRATION EXPENSES. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2
and 3 hereof and shall reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel (which shall initially be Mayer, Brown,
▇▇▇▇ & Maw, but which may be another nationally recognized law firm experienced
in securities matters designated by the Majority Holders) to act as counsel for
the Holders in connection therewith, PROVIDED, HOWEVER, the Holders shall pay
the fees and expenses of any attorneys if retained in addition to the one firm
or counsel, and their selling
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expenses, including any underwriting discounts or other commissions and fees in
connection with their sale of Registrable Securities.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Holder of Registrable Securities covered by the
Shelf Registration Statement, each Initial Purchaser, the directors, officers,
employees, Affiliates and agents of each such Holder or Initial Purchaser and
each person who controls any such Holder or Initial Purchaser within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any
amendment thereof 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 (in the case of any
preliminary Prospectus or the Prospectus, in the light of the circumstances
under which they were made) not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the party claiming indemnification specifically for inclusion therein.
This indemnity agreement shall be in addition to any liability that the Company
may otherwise have.
The Company also agrees to indemnify as provided in this Section 5(a)
or contribute as provided in Section 5(d) hereof to Losses of each underwriter,
if any, of Registrable Securities registered under the Shelf Registration
Statement, its directors, officers, employees, Affiliates or agents and each
person who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
in this paragraph (a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 3(n)
hereof.
(b) Each Holder of securities covered by the Shelf Registration
Statement (including each Initial Purchaser that is a Holder, in such capacity)
severally and not jointly agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Shelf Registration
Statement and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement shall be acknowledged by each Notice Holder
that is not an Initial Purchaser in such Notice Holder's Notice and
Questionnaire and shall be in addition to any liability that any such Notice
Holder may otherwise have.
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(c) Promptly after receipt by an indemnified party under this Section
5 or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); PROVIDED, HOWEVER,
that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending loss, claim, liability,
damage or action) (collectively "Losses") to which such indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits
received by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Initial Placement and the Shelf Registration
Statement which resulted in such Losses; PROVIDED, HOWEVER, that in no case
shall any Initial Purchaser be responsible, in the aggregate, for any amount in
excess of the purchase discount or commission applicable to such Security, as
set forth in the Final Memorandum, nor shall any underwriter be responsible for
any amount in excess of the
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underwriting discount or commission applicable to the securities purchased by
such underwriter under the Shelf Registration Statement which resulted in such
Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth in the Final Memorandum. Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Registrable Securities registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Shelf Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Shelf Registration Statement and each director
of the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
(e) The provisions of this Section 5 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the indemnified persons referred to in this Section 5, and
shall survive the sale by a Holder of securities covered by the Shelf
Registration Statement.
6. UNDERWRITTEN REGISTRATIONS. (a) If any of the Registrable
Securities covered by the Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders, subject to the consent of the Company, which consent shall not
be unreasonably withheld.
(b) No person may participate in any underwritten offering pursuant
to the Shelf Registration Statement unless such person (i) agrees to sell such
person's Registrable Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements; and (ii) completes and executes all
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questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
7. REGISTRATION DEFAULTS. If any of the following events shall
occur, then the Company shall pay liquidated damages (the "Registration Default
Damages") to the Holders of Securities in respect of the Securities as follows:
(a) if the Shelf Registration Statement with respect to the
Securities is not filed with the Commission on or prior to the 90th day
following the Closing Date, then commencing on the 91st day after the Closing
Date, Registration Default Damages shall accrue on the Securities at a rate of
..25% per annum for the first 90 days from and including such 91st day and .50%
per annum thereafter; or
(b) if the Shelf Registration Statement with respect to the
Securities is not declared effective by the Commission on or prior to the 180th
day following the Closing Date, then commencing on the 181st day after the
Closing Date, Registration Default Damages shall accrue on the Securities at a
rate of .25% per annum for the first 90 days from and including such 181st day
and .50% per annum thereafter; or
(c) if the Shelf Registration Statement with respect to the
Securities has been declared effective but ceases to be effective (other than
pursuant to Section 3(i) hereof) at any time during the Shelf Registration
Period, then commencing on the day the Shelf Registration Statement ceases to be
effective, Registration Default Damages shall accrue on the Securities at a rate
of .25% per annum for the first 90 days from and including such date on which
the Shelf Registration Statement ceases to be effective and .50% per annum
thereafter; or
(d) if the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant to
Section 3(i) hereof, then commencing on the day the aggregate duration of
Deferral Periods in any period exceeds the number of days permitted in respect
of such period, Registration Default Damages shall accrue on the Securities at a
rate of .25% per annum for the first 90 days from and including such date and
..50% per annum thereafter;
PROVIDED, HOWEVER, that (1) upon the filing of the Shelf Registration Statement
(in the case of paragraph (a) above), (2) upon the effectiveness of the Shelf
Registration Statement (in the case of paragraph (b) above), (3) upon the
effectiveness of the Shelf Registration Statement which had ceased to remain
effective (in the case of paragraph (c) above), or (4) upon the termination of
the Deferral Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(i) to be exceeded (in the case of
paragraph (d) above), Registration Default Damages shall cease to accrue.
8. NO INCONSISTENT AGREEMENTS. The Company has not entered into, and
agrees not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
9. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of the
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Holders of a majority of the aggregate original principal amount of the
Registrable Securities outstanding; PROVIDED that, with respect to any matter
that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement, waiver or
consent is to be effective; PROVIDED, FURTHER, that no amendment, qualification,
supplement, waiver or consent with respect to Section 7 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder; and PROVIDED, FURTHER, that the provisions of this
Article 9 may not be amended, qualified, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given, unless
the Company has obtained the written consent of the Initial Purchasers and each
Holder.
10. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of the Notice and Questionnaire
, which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture;
(b) if to the Initial Purchasers or the Representative, initially at
the address or addresses set forth in the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. REMEDIES. Each Holder, in addition to being entitled to exercise
all rights provided to it herein, in the Indenture or in the Purchase Agreement
or granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive in any action for specific performance the defense that a
remedy at law would be adequate.
12. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Registrable Securities, and the
indemnified persons referred to in Section 5 hereof. The Company hereby agrees
to extend the benefits of this Agreement to any Holder of Registrable
Securities, and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
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13. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
14. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
15. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York. The parties hereto each
hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
16. SEVERABILITY. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
17. REGISTRABLE SECURITIES HELD BY THE COMPANY, ETC. Whenever the
consent or approval of Holders of a specified percentage of original principal
amount of Registrable Securities is required hereunder, Registrable Securities
held by the Company or its Affiliates (other than subsequent Holders of
Registrable Securities if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the several Initial Purchasers.
Very truly yours,
BAUSCH & LOMB INCORPORATED
By:
-------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
By
------------------
Name:
Title:
For itself and the other several Initial
Purchasers named in Schedule I to the
Purchase Agreement.
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