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EXHIBIT 4.01
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REGISTRATION RIGHTS AGREEMENT
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O.S.I. CORPORATION,
▇▇▇▇▇ PARTNERS, L.P.,
▇▇▇▇▇ PARTNERS INTERNATIONAL, L.P.
ALLERGAN, INC.
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October 30, 1992
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TABLE OF CONTENTS
Page
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SECTION 1. BACKGROUND; DEFINITIONS...........................................
SECTION 2. REGISTRATION......................................................
2.1 Registration on Request.........................
2.2 Incidental Registration.........................
2.3 Registration Procedures.........................
2.4 Preparation; Reasonable Investigation...........
2.5 Indemnification.................................
SECTION 3. MISCELLANEOUS.....................................................
3.1 Rule 144........................................
3.2 Amendments and Waivers..........................
3.3 Assignment of Registration Rights...............
3.4 Limitations on Subsequent Registration Rights...
3.5 Specific Performance............................
3.6 Notices.........................................
3.7 Successors and Assigns..........................
3.8 Entire Agreement................................
3.9 Termination.....................................
3.10 Gender; Number..................................
3.11 Governing Law...................................
3.12 Jurisdiction....................................
3.13 Headings........................................
3.14 Counterparts....................................
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is dated as of October 30, 1992 and
is among O.S.I. Corporation, a California corporation (the "Company"), and the
undersigned parties hereto.
1. BACKGROUND; DEFINITIONS.
1.1 Background. The Company, ▇▇▇▇▇ Partners, L.P. ("▇▇▇▇▇
Partners"), ▇▇▇▇▇ Partners International, L.P. ("▇▇▇▇▇ International" and
together with ▇▇▇▇▇ Partners, "▇▇▇▇▇" or the "Equity Investors") are parties to
a Stock Purchase Agreement dated as of the date hereof (the "Stock Purchase
Agreement") pursuant to which the Equity Investors will purchase 425,399 shares
of Common Stock, no par value, of the Company (the "Common Stock"). The Equity
Investors and Allergan, Inc. ("Allergan", collectively with the Equity
Investors, the "Investors") are parties to a Subordinated Note and Warrant
Agreement dated as of the date hereof (the "Note and Warrant Agreement")
pursuant to which the Company is issuing to the investors 14% Senior
Subordinated Notes and warrants ("Warrants") to purchase 436,586 shares of
Common Stock. Simultaneously with the consummation of the Stock Purchase
Agreement and the Subordinated Note and Warrant Agreement, the Company will
issue to Allergan 29,542 shares of Series A Preferred Stock, no par value (the
"Preferred Stock") in partial payment of the purchase price for certain assets
being purchased by the Company from certain subsidiaries of Allergan pursuant to
an Agreement of Purchase and Sale of Assets dated April 28, 1992 among the
Company and said subsidiaries (the "Asset Purchase Agreement").
1.2 Certain Definitions. For purposes of this Agreement,
the following terms shall have the meanings set forth below:
(a) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (the "Securities
Act"), and the declaration or ordering of effectiveness of such registration
statement or document.
(b) The term "Registrable Securities" means: (1) the
Common Stock issued to the holders (the "Founders") of Common Stock outstanding
immediately prior to the execution
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of the Stock Purchase Agreement (the "Founders' Shares"); (2) the Common Stock
issued to the Equity Investors pursuant to the Stock Purchase Agreement; (3) the
Common Stock issuable or issued upon exercise of the Warrants issued to the
Investors pursuant to the Securities Purchase Agreement; (4) the Common Stock
issued or issuable upon conversion of the Preferred Stock issued to Allergan
pursuant to the Asset Purchase Agreement; and (5) any Common Stock of the
Company or any other entity issued as or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the Common Stock referred to in clauses (1) through (4), the Warrants or the
Preferred Stock or in connection with a stock split, combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise,
other than shares of capital stock distributed to the public pursuant to an
effective registration statement or Rule 144 (or successor thereto) under the
Securities Act, and excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which his rights under this Agreement are
not assigned.
(c) The number of shares of "Registrable Securities then
outstanding" shall be the number of shares of Common Stock outstanding which are
Registrable Securities, and the number of shares of Common Stock which would be
Registrable Securities upon issuance upon conversion or exercise of, or in
exchange for, any of the securities referred to in Section 1.2(b).
(d) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Article II of the Shareholders' Agreement dated as of the date
hereof among the Company, the Investors and the Founders (the "Shareholders'
Agreement").
(e) The term "Qualified Holder or Holders" means the
Investors acting together or individually as the Holder or Holders of at least
10% of the Registrable Securities then outstanding held by all Holders.
2. REGISTRATION.
2.1. Registration on Request.
(a) At any time after the earlier of (x) June 30, 1995
and (y) the first date on which the Company shall have offered shares of Common
Stock to the public pursuant to an effective registration statement under the
Securities Act (the "Initial Public Offering"), one or more Qualified
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Holders may request in writing that the company effect the registration under
the Securities Act of all or part of the Registrable Securities held by such
Qualified Holder or Holders, which request shall specify the intended method or
methods of disposition of such Registrable Securities. The Company will promptly
give written notice of such requested registration by certified or registered
mail to all Holders and thereupon will use its best efforts to effect (at the
earliest possible date and if possible within 90 days after the giving of such
written notice by the Company) the registration, under the Securities Act, of:
(i) the Registrable Securities which the Company has been
so requested to register by such Qualified Holder or Holders, for
disposition in accordance with the intended method of disposition
stated in such request; and
(ii) all other Registrable Securities which the Company
has been requested to register by a Holder or Holders, by written
request delivered to the Company within 30 days after the giving of
such written notice by the Company (which request shall specify the
intended method of disposition of such Registrable Securities),
provided that:
(A) if the Company shall have previously
effected a registration pursuant to this Section 2.1, or shall
have previously effected a registration of which notice has
been given to all Holders pursuant to Section 2.2, the Company
shall not be required to effect another registration pursuant
to this Section 2.1 until a period of six (6) months shall
have elapsed from the termination of effectiveness of the most
recent such previous registration;
(B) the Company shall not be required to
effect any registration pursuant to this Section 2.1 unless it
is a registration with respect to which the Company is
required to pay Registration Expenses (as hereinafter defined)
pursuant to Section 2.1(b);
(C) the Company shall not be required to
effect any registration pursuant to this Section 2.1 unless
the Holder or Holders requesting registration pursuant to
clauses (i) and (ii) above have requested to include in the
applicable registration Registrable Securities owned by them
representing at least 20% of the Registrable Securities then
outstanding; and
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(D) the Company shall not be required to
effect any registration pursuant to this Section 2.1, and shall
have the right to defer such registration for up to 120 days, if
such registration would, in the reasonable judgment of the
Company's Board of Directors, (x) prevent or materially and
adversely affect a registration of the Common Stock on behalf of
the Company which had been planned by the Board prior to receipt
of the request for registration pursuant to this Section 2.1 or
(y) require the Company to disclose any information which the
Company has a bona fide corporate purpose for preserving as
confidential and the disclosure of which information at such
time is, in the reasonable judgment of the Company's Board of
Directors, reasonably likely to have a material adverse effect
on the business, assets or financial condition of the Company.
(b) The Company will pay all Registration Expenses in connection
with either (x) each of the first three registrations of Registrable Securities
effected by the Company pursuant to this Section 2.1 or (y) each of the first
two registrations of Registrable Securities effected by the Company pursuant to
this Section 2.1 if (i) any of the Qualified Holders have exercised their rights
pursuant to Section 2.2 of this Agreement to participate in the Initial Public
Offering and such participating Qualified Holders registered in the aggregate
Registrable Securities then owned by them representing at least 18% of the
Registrable Securities then outstanding or if (ii) the Company has effected the
registration of any Deferred Demand Securities pursuant to Section 2.3(b)
hereof. The term "Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with this section 2 including, without
limitation, all registration and filing fees; all applicable transfer taxes, if
any; all fees and expenses of complying with securities or blue sky laws; all
printing expenses; the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
required by or incident to such performance and compliance; and the reasonable
fees and disbursements up to a maximum of $25,000 of one counsel (other than in
house counsel) for the Holders on whose behalf securities are being registered,
which counsel shall be reasonably acceptable to each of the Investors; but
excluding any allocation of Company personnel or other general overhead expenses
of the Company or other expenses for the preparation of financial statements or
other data normally prepared by the Company in the ordinary course of its
business, which shall be borne by the Company in all cases.
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(c) If any Registrable Securities included by any Holder in a
registration pursuant to this Section 2.1 are to be sold in an underwritten
offering, then each other Holder who is registering Registrable Securities in
the same registration shall have the right, at its election, to demand that all
Registrable Securities be sold in such underwritten offering on the same terms
and conditions, including price, subject, however, to the provisions of Section
2.3(b).
(d) A registration requested pursuant to this Section 2.1
shall not be deemed to have been effected (i) unless a registration statement
with respect thereto has become effective, provided that a registration which
does not become effective after the Company has filed a registration statement
with respect thereto solely by reason of the refusal to proceed of the Qualified
Holders requesting such registration (the "Initiating Holders") shall be deemed
to have been effected by the Company at the request of such Initiating Holders
unless the Initiating Holders shall have elected to pay all Registration
Expenses in connection with such registration, provided, however, that if at the
time of such refusal to proceed (A) the Initiating Holders have learned of a
material adverse change in the business, condition or prospects of the Company
not known to the Initiating Holders at the time of their request, (B) the
existence of such material adverse change was known to the Company at the time
of the Initiating Holders' request for registration, and (C) the Initiating
Holders have notified the Company of their refusal to proceed with reasonable
promptness following disclosure by the Company of such material adverse change,
then such registration shall not be deemed to have been effected and the
Initiating Holders shall not be required to pay any Registration Expenses in
connection therewith; (ii) if, after it has become effective, such registration
is interfered with by any stop order, injunction or other order or requirement
of the Securities and Exchange Commission (the "Commission") or other
governmental agency or court for any reason; or (iii) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied, other than by reason of
some act or omission by such Initiating Holders.
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2.2. Incidental Registration.
(a) If the company at any time proposes to register any of its
securities under the Securities Act, whether or not for sale for its own
account, other than pursuant to Section 2.3(b), on a form and in a manner which
would permit registration of shares of Common Stock for sale to the public under
the Securities Act, it will, each such time, give prompt written notice to all
Holders of its intention to do so, describing such securities and specifying the
form and manner and the other relevant facts involved in such proposed
registration. Upon the written request of any Holder delivered to the Company
within 30 days after the giving of any such notice (which request shall specify
the number of Registrable Securities intended to be disposed of by such Holder
and the intended method of disposition thereof), the Company will include in
such registration such number of Registrable Securities as a Holder may specify
in its request, provided that:
(i) if, at any time after giving such
written notice of its intention to register any of its securities and
prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for
any reason not to register such securities, the Company may, at its
election, give written notice of such determination to each Holder
and thereupon shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not
from its obligation to pay the Registration Expenses already incurred
in connection therewith as provided in subsection (b) of this Section
2.2), without prejudice, however, to the rights of any one or more
Qualified Holders to request registration pursuant to Section 2.1;
(ii) if (A) the registration so proposed by the Company
involves an underwritten offering of the securities so being
registered, whether or not for sale for the Company's own account,
other than pursuant to Section 2.1 or Section 2.3(b), (B) the
Registrable Securities so requested to be registered for sale for the
account of any Holder are not also to be included in such
underwritten offering, and (C) the managing underwriter of such
underwritten offering shall advise the Board of Directors of the
Company that, in its reasonable opinion, the registration and
distribution of all or a specified portion of Registrable Securities
concurrently with the securities being distributed by such
underwriters is reasonably likely to materially
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and adversely affect the distribution of such securities by such
underwriters (such opinion to state the reasons therefor), then the
Company will promptly furnish each Holder who has requested
registration of such Registrable Securities not to be included in such
underwritten offering pursuant to this Section 2.2 with a summary (or
to the extent written, a copy) of such opinion. The Company may
require, by written notice accompanying such summary (or copy) of such
opinion to each such Holder, that the Registrable Securities requested
to be included in such registration statement be included in such
underwritten offering or be excluded from such registration; and
(iii) the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 2.2
incidental to the registration of any of its securities in connection
with mergers, acquisitions, exchange offers, dividend reinvestment
plans, employee stock ownership plans or stock option plans, thrift
plans, pension plans or other employee benefit plans.
(b) The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested by a
Holder pursuant to this Section 2.2.
2.3. Registration Procedures.
(a) If and whenever the Company is requested or required to
effect the registration of any Registrable Securities under the Securities Act
as provided in Sections 2.1, 2.2 or 2.3(b), the Company will as expeditiously as
possible:
(i) prepare and (in any event within 60 days after the
end of the period within which requests for registration may be
delivered to the Company) file with the Commission a registration
statement on the appropriate form with respect to such Registrable
Securities and use its best efforts to cause such registration
statement to become effective as promptly as practicable;
(ii) prepare and file with the commission such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration
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statement until the earlier of such time as all Registrable Securities have
been disposed of in accordance with the intended methods of disposition by the
Holders thereof set forth in such registration statement or the expiration of
150 days after such registration statement becomes effective;
(iii) furnish to each Holder participating in the registration such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus, and
such other documents, as such Holder may reasonably request to facilitate the
disposition of Registrable Securities owned by it;
(iv) use its best efforts to register or qualify all securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions within the United States and its territories as
each Holder participating in the registration shall reasonably request, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to taxation
in any such jurisdiction, or to consent to general service of process in any
such jurisdiction;
(v) furnish to each Holder of Registrable securities covered by
such registration statement a signed counterpart, addressed to such Holder, of
(A) an opinion of counsel for the Company, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), and (B) a "cold comfort" letter signed by the independent public
accountants who have certified the Company's financial statements included in
such registration statement, covering substantially the same matters with
respect to such registration statement (and the prospectus included therein)
and, in the case of such accountants' letter, with respect to events
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subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered
to underwriters in underwritten public offerings of securities and, in the
case of the accountants' letter, such other financial matters, as such Holder
may reasonably request;
(vi) immediately notify each Holder of Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes 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 the light of the
circumstances then existing, and at the request of any such Holder prepare and
furnish to such Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include 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;
(vii) advise each Holder of Registrable Securities covered by such
registration statement promptly after the Company shall receive notice or
obtain knowledge of the issuance of any stop order by the Commission
suspending the effectiveness of any such registration statement or amendment
thereto or of the initiation or threatening of any proceeding for that
purpose, and promptly use all reasonable efforts to prevent the issuance of
any stop order or obtain its withdrawal promptly if such stop order should be
issued;
(viii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its securities
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first month of the first fiscal quarter after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act; and
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(ix) if the Registrable Securities to be sold meet the
criteria for listing on any exchange on which the Common Stock is then
listed, apply for listing of such Registrable Securities on such
exchange.
The Company may require each Holder as to which any
registration is being effected to furnish the Company with such information
regarding such Holder and the distribution of its Registrable Securities as the
Company may from time to time request in writing, for inclusion in the
applicable registration statement, as reasonably determined by the Company to be
required by law, or by the commission, in connection therewith.
(b) If requested by the underwriters for any underwritten
offering on behalf of a Qualified Holder or Holders pursuant to a registration
requested under Section 2.1, the Company will enter into an underwriting
agreement with such underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities to the
effect and to the extent provided in Section 2.5. Whenever a registration
requested by one or more Qualified Holders pursuant to Section 2.1 is for an
underwritten offering, and the underwriters shall determine that the number of
Securities, including Registrable Securities requested to be included in such
offering, to be sold in any such underwritten offering should be limited due to
market conditions or otherwise, to the extent determined to be necessary by the
underwriters, the Registrable Securities requested to be registered by Holders
shall be excluded on a pro rata basis based upon the number of Registrable
Securities beneficially owned by Holders proposing to participate in such
underwritten offering (the "Deferred Demand Securities"); provided, however,
that Registrable Securities shall be excluded pursuant to this Section 2.3(b)
only if the reduction in the number of securities recommended by the
underwriters cannot be achieved by first excluding from the offering any
securities registrable pursuant to incidental registration rights granted
pursuant to a written agreement other than this Agreement to any person or
entity who is not a Holder; and provided further that such exclusion shall apply
until the completion of the distribution of such securities by such
underwriters, but in no event for a period of more than 120 days after the
effective date of such registration. In the event that, in accordance with this
Section 2.3(b), any Registrable Securities held by a Holder proposing to
participate in such underwritten offering pursuant to section 2.1 shall have
been excluded, the company shall, not
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later than the end of the 120 day period referred to above, register such
Deferred Demand Securities to the extent required to permit the distribution
thereof in accordance with the intended method of disposition previously
disclosed to the Company pursuant to Section 2.1, unless such Holder shall have
withdrawn his request to register his Deferred Demand securities, and no such
deferred registration hereunder shall be deemed to be a registration pursuant to
Section 2.1 hereof. The registration of such Deferred Demand securities pursuant
to an underwritten offering shall again be subject to exclusion as set forth in
the first sentence of this Section 2.3(b); provided that in no event will the
Company be required to effect more than one registration of Deferred Demand
Securities in connection with any exercise of demand registration rights
pursuant to Section 2.1. The Company will pay all Registration Expenses in
connection with the registration of Deferred Demand Securities pursuant to this
Section 2.3(b), if the proposed underwritten offering with respect to which such
Securities were deferred was an offer in respect of which the Company was
required to pay Registration Expenses pursuant to Section 2.1(c) hereof.
(c) If the Company at any time proposes to register any of its
securities under the Securities Act whether or not for sale for its own account
as contemplated by Section 2.2, but in circumstances in which Section 2.1 and
Section 2.3(b) do not apply, and such securities are to be distributed by or
through one or more underwriters, the Company will make reasonable efforts, if
requested by any Holder who requests incidental registration of Registrable
securities in connection therewith pursuant to Section 2.2, to arrange for such
underwriters to include such Registrable Securities among those securities to be
distributed by or through such underwriters; provided, however, that if the
underwriters shall determine that the inclusion of all or a specified portion of
such Registrable Securities and any other securities as to which incidental
registration rights are being sought would adversely affect such offering, all
securities registrable pursuant to incidental registration rights granted
pursuant to a written agreement other than this Agreement shall be excluded
first from such underwritten offering, and to the extent determined to be
necessary by the underwriters, Registrable Securities requested to be included
shall be next excluded, pro rata, such exclusion to be based on the respective
numbers of Registrable Securities beneficially owned by the Holders seeking to
include Registrable Securities in such written offering. The Holders on whose
behalf Registrable Securities are to be distributed by such underwriters shall
be parties to any such underwriting agreement and the representations and
warranties by, and the other agreements
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on the part of, the Company to and for the benefit of such underwriters, shall
also be made to and for the benefit of such Holders. Any such Holder of
Registrable securities shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
Registrable securities and such Holder's intended method of distribution and any
other representation reasonably required in connection with the registration.
(d) Whenever a registration requested pursuant to Section
2.1, or a deferred registration required pursuant to the last paragraph of
Section 2.2(a)(ii) (in which the company is not registering securities for its
own account), or Section 2.3(b) is for an underwritten offering, the Holders of
a majority of the Registrable Securities included in such registration shall
have the right to select the managing underwriter to administer the offering
subject to the approval of the Company, such approval not to be unreasonably
withheld. If the Company at any time proposes to register any of its securities
under the securities Act for sale for its own account and such securities are to
be distributed by or through one or more underwriters, the Company shall select
the managing underwriter, such selection to be subject to the approval of the
Holders of a majority of the Registrable Securities participating in such
registration, such approval not to be unreasonably withheld.
(e) If any registration pursuant to Sections 2.1,
2.2 or 2.3(b) shall be in connection with an underwritten public offering, each
Holder of Registrable Securities agrees, if so timely required in writing by the
managing underwriters, not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of, or
otherwise dispose of, Registrable Securities (other than as part of such
underwritten public offering) within the period commencing seven days prior to
the effective date of such registration statement and ending the earlier of (i)
120 days after the effective date of such registration statement and (ii) the
date on which all securities under such registration statement are sold. Each
Holder of Registrable Securities agrees that the Company may instruct its
transfer agent to place stop transfer notations in its records to enforce this
Section 2.3(e).
(f) Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice from
the Company of the occurrence of any event of the kind described in subsection
(a)(vi) of this Section 2.3, such Holder will forthwith discontinue the
disposition of Registrable Securities pursuant to the
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registration statement relating to such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (a)(vi) of this Section 2.3 and, if so any directed
by the Company, will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the prospectus relating to such Registrable Securities at the time of receipt of
such notice; provided, that if the registration statement is for an underwritten
offering, such Holder will use its best efforts to cause the underwriters of
such offering to discontinue the disposition of Registrable Securities. In the
event the Company shall give any such notice, the period referred to in
subsection (a)(ii) of this Section 2.3 shall be extended by the length of the
period from and including the date when each seller of any Registrable
Securities covered by such registration statement shall have received such
notice to the date on which each such seller has received the copies of the
supplemented or amended prospectus contemplated by subsection (a)(vi) of this
Section 2.3.
2.4. Preparation; Reasonable Investigation. In connection
with the preparation and filing of each registration statement registering
Registrable Securities, the Company will give the Holders on whose behalf such
Registrable Securities are to be so registered and their underwriters, if any,
and their respective counsel and accountants, the opportunity to participate in
the preparation of such registration statement, each prospectus included therein
or filed with the Commission, and each amendment thereof or supplement thereto,
and will give each of them such access to its books and records and such
opportunities to discuss the business of the Company and its subsidiaries with
its officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of such Holders and
such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act, provided, that the
Company shall not be required to comply with this Section 2.4 with respect to
any material information, the delivery of which in the judgment of the Company
reasonably exercised, is reasonably likely to result in the loss of any
attorney-client privilege of the Company covering such information.
2.5. Indemnification. (a) In the event of any registration
of any securities of the Company pursuant to Sections 2.1, 2.2 or 2.3(b), the
Company will, and hereby does, indemnify and hold harmless each selling Holder,
its directors, officers, partners, employees, representatives and affiliates,
each officer and director of each
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underwriter, each other person who participates as an underwriter in the
offering or sale of such securities and each other person, if any, who controls
such Holder or any such underwriter within the meaning of the Securities Act
(each an "Indemnified Person") against any losses, claims, damages, liabilities
and expenses (including reasonable legal fees and expenses and costs of
investigation), joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered or qualified under the Securities Act or
otherwise, any preliminary prospectus, final prospectus or summary prospectus
included therein, or any amendment or supplement thereto, or any document
incorporated by reference therein or incident to any such registration or
qualification, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation by the Company of the Securities
Act applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration or qualification or compliance
thereunder; and the Company will reimburse each Indemnified Person for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending any such loss, claim, liability, action or proceeding; provided
that the Company shall not be liable to such Indemnified Person in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement or any documents
incorporated by reference in any of the above in reliance upon and in conformity
with written information furnished by such Indemnified Person to the Company and
designated in writing by such Person to be specifically for use in the
preparation thereof, provided, further that the Company shall not be liable to
any Indemnified Person who participates as an underwriter in the offering or
sale of Registrable Securities or to any other Indemnified Person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof), or expense arises out of such Indemnified
Person's failure to send or give a copy of the final prospectus, as the same may
be then supplemented or amended, to the person asserting the
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existence of an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such person if such statement or omission was
corrected in full in such final prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Indemnified Person and shall survive the transfer of such securities by such
Indemnified Person.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2.3(a)(i), that the Company shall have received an undertaking satisfactory to
it from the Holder of such Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subsection
(a) of this Section 2.5) the Company, each director of the Company, each
officer of the Company who shall sign such registration statement, each
affiliate of the Company and each other person, if any, who controls the Company
within the meaning of the Securities Act, with respect to any statement in or
omission from such registration statement, any preliminary prospectus, final
prospectus or summary prospectus included therein, or any amendment or
supplement thereto or any documents incorporated by reference in any of the
above, if such statement or omission was made solely in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Holder stating that it is specifically for use
in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling person and
shall survive the transfer of such Registrable Securities by such Holder,
provided, however, that a Holder's liability hereunder shall not exceed the
aggregate net offering proceeds received by such Holder from the sale of such
Registrable Securities.
(c) If the indemnification provided for in this Section 2.5 is
unavailable or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages, liabilities, expenses or action in respect thereof
referred to herein, then the indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities, expenses or actions in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, in connection with the statement or omissions
which resulted in such losses, claims, damages,
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liabilities, expenses or actions as well as any other relevant equitable
considerations, including the failure to give the notice required hereunder. The
relative fault of the indemnifying party and the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Holders agree that it would not be
just and equitable if contributions pursuant to this Section were determined by
pro rata allocation or by any other method of allocation which did not take
account the equitable considerations referred to herein. The amount paid or
payable to an indemnified party as a result of the losses, claims, damages,
liabilities or action in respect thereof, referred to above, shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the contribution provisions of this Section, in no event shall
the amount contributed by any Holder exceed the aggregate net offering proceeds
received by such Holder from the sale of Registrable Securities. No person
guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
(d) Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in
this Section 2.5, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party, give written notice to the latter of
the commencement of such action, provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subsections of this Section 2.5, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof;
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provided, however, that if the indemnified party or parties reasonably determine
that there may be a conflict between the positions of the indemnifying party or
parties and of the indemnified party or parties in conducting the defense of
such action or proceeding or that there may be legal defenses available to such
indemnified party or parties different from or in addition to those available to
the indemnifying party or parties, then counsel for the indemnified party or
parties shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interests of the
indemnified party or parties (and the indemnifying party or parties shall bear
the reasonable legal and other expenses incurred in connection therewith). No
indemnifying party will, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation. No indemnified party shall consent to entry of any judgment or enter
into any settlement of any such action the defense of which has been assumed by
an indemnifying party without the consent of such indemnifying party.
(e) Indemnification similar to that specified in the preceding
subsections of this Section 2.5 (with appropriate modifications) shall be given
by the company and each Holder of Registrable Securities with respect to any
required registration or other qualification of such Securities under any
federal or state law or any regulation of governmental authority other than the
Securities Act.
3. MISCELLANEOUS.
3.1. Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company will file the reports required to be filed by it under the Securities
Act and the Exchange Act (or, if the Company is not required to file such
reports, will, upon the request of any Holder, make publicly available other
information), and will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder (i) a written statement as to whether it
has complied with such
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requirements; (ii) if applicable, a copy of the most recent annual or quarterly
report of the Company; and (iii) such other reports and documents as a Holder
may reasonably request to avail itself of Rule 144A or any other rule or
regulation of the Commission allowing a Holder to sell Common Stock without
registration.
3.2. Amendments and Waivers. Any term of 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 with the written consent of the Company and the Holders of 80% or more of
the Registrable Securities then outstanding. Each Holder shall be bound by any
consent authorized by this Section 3.2.
3.3. Assignment of Registration Rights. The rights to cause
the Company to register Registrable Securities pursuant to this Agreement may be
assigned by a Holder to a transferee or assignee of such securities in
accordance with the terms of the Shareholders' Agreement who, after such
assignment or transfer, holds at least 5% of Registrable Securities then
outstanding (subject to appropriate adjustments for stock splits, stock
dividends, combinations and other recapitalizations), provided the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; and provided,
further, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act. Any such assignee shall be
subject to all rights and obligations hereunder and shall agree in writing to be
bound by the terms of this Agreement. The 5% threshold referenced above shall
not apply to transfers and assignments to another Holder; to partners or retired
partners of a Holder which is a partnership (including spouses and ancestors,
lineal descendants and siblings of such partners or spouses who acquire
Registrable Securities by gift, will or intestate succession); to beneficiaries
of a Holder which is a trust; or, with respect to a Holder who is a natural
person, the ancestors, descendants or spouse of such person or a trust for any
of their benefit; provided that all such assignees and transferees who do not
meet the 5% threshold shall appoint a single Holder as their attorney-in-fact
for the purpose of exercising any rights, receiving notices or taking any action
under this Agreement.
3.4. Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the
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Company shall not enter into any agreement with any holder or prospective holder
of any securities of the Company which would allow such holder or prospective
holder to include such securities as Registrable Securities under this Agreement
except as expressly provided herein, subject to the provisions of Section 2.3(b)
hereof, or which would provide such holder or prospective holder with
registration rights more favorable than the rights granted to the Holders under
this Agreement, in any case, without the written consent of the Holders of a
majority of the Registrable Securities.
3.5. Specific Performance. Inasmuch as the shares of capital
stock of the Company are closely held and the market therefor is limited,
irreparable damage would result if this Agreement were not specifically
enforced. Therefore, the rights granted to the Holders hereunder shall be
enforceable in a court of equity by a decree of specific performance, and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies shall, however, be cumulative and not exclusive and
shall be in addition to any other remedies which any party may have under this
Agreement or otherwise.
3.6. Notices. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing and
shall be delivered, if to a party other than the Company, to such party in the
manner set forth in the Shareholders' Agreement or at such other address as such
party shall have furnished to the Company in writing, or, if to the Company, at
the Company's principal executive offices, to the attention of its Secretary, or
at such other address, or to the attention of such other officer, as the Company
shall have furnished to each Holder.
3.7. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto.
3.8. Entire Agreement. This Agreement embodies the entire
agreement and understanding between each Holder and the Company and supersedes
all prior agreements and understandings relating to the subject matter hereof.
3.9. Termination. This Agreement shall terminate on the tenth
anniversary of the date hereof, and shall survive the earlier termination of the
Shareholders' Agreement, provided that any indemnification obligations hereunder
shall survive the termination of this Agreement.
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3.10. Gender; Number. Unless the context of this Agreement
otherwise requires, the masculine, feminine or neuter gender shall include the
other genders, and the singular shall include the plural.
3.11 Governing Law. This Agreement shall be construed and
enforced in accordance with and governed by the law of the State of New York.
3.12 Jurisdiction. By its execution and delivery of this
Agreement, each of the parties hereby irrevocably submits to the non-exclusive
jurisdiction (both subject matter and personal) of the courts of the State of
New York and the United States District Court for the Southern District of New
York in any legal action or proceeding arising out of or relating to this
Agreement. Each of the parties which are not resident in the State of New York
hereby designates and appoints the Company as its authorized agent to accept and
acknowledge on its behalf service of any and all process which may be served in
any suit, action or proceeding in the State of New York, and any service or
process upon such agent shall be deemed in every respect effective service upon
such party. Nothing herein shall affect the right of any party to commence legal
proceedings or otherwise proceed against any other party in any other
jurisdiction or to serve process in any other manner permitted by applicable
law.
3.13 Headings. The headings in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
3.14 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed on the date first written above.
O.S.I. CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
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▇▇▇▇▇ PARTNERS, L.P.
By: BGW Partners, L.P.
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
▇▇▇▇▇ PARTNERS INTERNATIONAL,
L.P.
By: BGW Partners, L.P.
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
ALLERGAN, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Corporate Vice-President,
Secretary and General
Counsel
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