Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT FOR SECURITIES
REGISTRATION RIGHTS AGREEMENT FOR SECURITIES (the
"Agreement"), dated as of October 9, 1996, by and among ICN
Pharmaceuticals, Inc., a Delaware corporation (the "Company") and
the Investors (as hereinafter defined).
This Agreement is made pursuant to the Stock
Subscription Agreement, dated as of even date herewith, by and
among the Company and the Investors (the "Subscription
Agreement"). In order to induce the Investors to enter into the
Subscription Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized
terms shall have the following meanings:
CERTIFICATE OF DESIGNATIONS shall mean the Certificate
of Designations, Preferences and Rights of the Preferred Stock,
as filed with the Secretary of State of the State of Delaware.
COMMON STOCK shall mean the common stock, par value
$0.01 per share, of the Company; PROVIDED, that if the Company's
Common Stock is recapitalized, "Common Stock" shall mean such
recapitalized stock.
COMPANY shall have the same meaning set forth in the
preamble.
EXCHANGE ACT shall mean the Securities Exchange Act of
1934, as amended from time to time.
HOLDER shall mean each of the Investors or such other
Person to whom any such Investor shall have assigned or
transferred such Investor's Registrable Securities in accordance
with this Agreement. A Person is deemed to be a Holder whenever
such Person owns Registrable Securities or Preferred Stock.
INITIAL ISSUANCE DATE shall mean the date of the
initial issuance of the Preferred Stock.
INVESTORS shall mean the investors specified on the
signature page to this Agreement.
NASD shall mean the National Association of Securities
Dealers, Inc.
NYSE shall mean the New York Stock Exchange.
PERSON shall mean an individual, partnership,
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
PREFERRED STOCK shall mean the Series B Convertible
Preferred Stock of the Company, par value $.01 per share, having
a liquidation preference of $1000 per share and such other rights
and preferences as are set forth in the Certificate of
Designations.
PROSPECTUS shall mean the prospectus included in any
Registration Statement, 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 such
Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all
material incorporated by reference in such Prospectus.
REGISTRABLE SECURITIES shall mean the shares of Common
Stock issued or issuable pursuant to the dividend or conversion
provisions of the Certificate of Designations, until such time as
they have been sold under a Registration Statement.
REGISTRATION STATEMENT shall mean any registration
statement of the Company which covers any of the Registrable
Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all
exhibits and all material incorporated by reference in such
Registration Statement.
SEC shall mean the Securities and Exchange Commission.
SECURITIES ACT shall mean the Securities Act of 1933,
as amended from time to time.
SUBSCRIPTION AGREEMENT shall have the meaning set forth
in the preamble.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING
shall mean a registration in which securities of the Company are
sold to an underwriter for reoffering to the public.
2. REGISTRATION.
(a) REGISTRATION STATEMENT. All Registrable
Securities shall, within 90 days of the Initial Issuance Date and
for so long thereafter as is required by this Agreement, be
subject to an effective Registration Statement pursuant to Rule
415 under the Securities Act on any appropriate form under the
Securities Act, covering the resale or other disposition of the
Registrable Securities by the Holders thereof in accordance with
the intended method or methods of distribution thereof as
specified by the Holders at any time and from time to time after
such issuance. The Registration Statement shall remain effective
pursuant to the provisions of Rule 415 of the Securities Act or
otherwise until such time (if any) as the Holders, either in the
opinion of their counsel or pursuant to a "no-action letter"
reasonably satisfactory to counsel for the Holders provided by
the staff of the SEC at the request of the Company, are free to
sell the Registrable Securities without compliance with the
registration provisions under the Securities Act, and any
applicable state securities laws.
(b) NO COMPANY REGISTRATIONS. The Company shall
not be permitted to register any securities in any Registration
Statement for sale for its own account.
(c) PIGGYBACK REGISTRATIONS. (i) The Company
shall not be permitted to grant in any Registration Statement any
registration rights (the "Piggyback Registration Rights") for any
securities other than the Registrable Securities except for the
Piggyback Registration Rights granted pursuant to (I) the Common
Stock Undertaking, dated as of February 28, 1996, by and among
Gly Derm, Inc., certain shareholders set forth in such agreement
and the Company, (II) the Common Stock Undertaking, dated as of
July 18, 1996, by and among Siemens Medical Systems, Inc. and the
Company and (III) the Sale and Purchase Agreement, dated as of
September 18, 1996, by and between Organen Teknika Corporation,
Akzo Nobel Pharma International B.V. and the Company.
(ii) Notwithstanding any other provision of
this Section 2(c), if the investment banker to the Company shall
advise the Company in writing that the inclusion of securities
entitled to Piggyback Registration Rights would, in such
investment banker's opinion, adversely affect the success of the
offering in which such securities entitled to Piggyback
Registration Rights are proposed for inclusion, then the
securities entitled to Piggyback Registration Rights shall be
excluded from any applicable Registration Statement to the extent
so recommended in such opinion, to the extent and only to the
extent not inconsistent with the terms of the agreements pursuant
to which such Piggyback Registration Rights were granted.
(iii) Notwithstanding any other provision of
this Section 2(c), if any disposition of Registrable Securities
is pursuant to a firm commitment underwritten registration, and
the managing underwriter or underwriters advise the Company and
the Holders in writing that marketing factors require a
limitation on the number of shares to be underwritten, then the
securities entitled to Piggyback Registration Rights shall
participate pro rata with the Holders of Registrable Securities
to be disposed of in such underwritten registration to the extent
required by such limitation, to the extent and only to the extent
not inconsistent with the terms of the agreements pursuant to
which such Piggyback Registration Rights were granted.
3. REGISTRATION PROCEDURES.
In connection with the Company's registration
obligations pursuant to Section 2, the Company will use its best
efforts to effect such registrations to permit the sale of such
Registrable Securities in accordance with the intended method or
methods of distribution thereof as specified by the Holders, and
pursuant thereto the Company will:
(a) as expeditiously as possible but in no event
later than forty-five (45) days after the Initial Issuance Date,
prepare and file with the SEC a Registration Statement relating
to such registration pursuant to Rule 415 under the Securities
Act on any appropriate form under the Securities Act, which form
shall be available for the sale of the Registrable Securities by
the Holders thereof in accordance with the intended method or
methods of distribution thereof as specified by the Holders,
cooperate and assist in any filings required to be made with the
NYSE, any other public exchange or the NASD, and use its best efforts
to cause such Registration Statement to become effective; PROVIDED,
HOWEVER, that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, including documents incorporated
by reference after the initial filing of any Registration Statement,
the Company will furnish to the Holders of the Registrable
Securities covered by such Registration Statement, their counsel
and the underwriters, if any, copies of all such documents
proposed to be filed sufficiently in advance of filing to provide
them with a reasonable opportunity to review such documents and
comment thereon;
(b) prepare and file with the SEC such amendments
and post-effective amendments to a Registration Statement as may
be necessary to keep such Registration Statement effective for
the applicable period; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the
Securities Act; and comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement or supplement to such Prospectus;
(c) notify each Holder of Registrable Securities
included in the Registration Statement, their counsel and the
managing underwriters, if any, promptly, and (if requested by any
such Person) confirm such notice in writing, (1) when a
Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has
become effective, (2) of any request by the SEC for amendments or
supplements to a Registration Statement or related Prospectus or
for additional information, (3) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purposes,
(4) if at any time the representations and warranties of the
Company contained in agreements contemplated by Section 3 (m)
cease to be true and correct, (5) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (6) of the happening of any event as
a result of which the Prospectus included in the Registration
Statement (as then in effect) contains any untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein (in
the case of the Prospectus or any preliminary Prospectus, in
light of the circumstances under which they were made) not
misleading and (7) of the Company's reasonable determination that
a post-effective amendment to a Registration Statement would be
appropriate or that there exist circumstances not yet disclosed
to the public which make further sales under such Registration
Statement inadvisable pending such disclosure and post-effective
amendment;
(d) upon the occurrence of any event contemplated
by Section 3(c)(2)-(7) and immediately upon the expiration of any
Delay Periods (as defined at the end of this Section (3)), (i)
prepare, if the occurrence of such event or period requires such
preparation, a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such Prospectus
will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein not misleading and (ii) comply with the obligations of
the Company set forth in the last paragraph of this Section 3;
(e) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement, or the lifting of any suspension of the
qualification of any of the Registrable Securities for sale in
any jurisdiction, at the earliest possible moment;
(f) if reasonably requested by a managing
underwriter, if any, or any Holder of Registrable Securities to
which a Prospectus relates, immediately incorporate in a
Prospectus supplement or post-effective amendment such
information concerning such Holder of Registrable Securities, the
managing underwriter or underwriters, if any, or the intended
method of distribution as the managing underwriter or
underwriters, if any, or such Holder of Registrable Securities
reasonably requests to be included therein and as is appropriate
in the reasonable judgment of the Company, including, without
limitation, information with respect to the number of Registrable
Securities being sold to such underwriter or underwriters, if
any, the purchase price being paid therefor by such underwriter
or underwriters, if any, and with respect to any other terms of
the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after notification of the
matters to be incorporated in such Prospectus supplement or post-
effective amendment;
(g) furnish to each Holder of Registrable
Securities included in such Registration Statement and each
managing underwriter, if any, without charge, one manually-signed
copy of the Registration Statement and any post-effective
amendments thereto, including financial statements, schedules and
statistical data, and, upon request, all documents incorporated
therein by reference and all exhibits (including those
incorporated by reference);
(h) deliver to each Holder of Registrable
Securities included in such Registration Statement, their counsel
and the underwriters, if any, without charge, as many copies of
the Prospectus or Prospectuses (including each preliminary
Prospectus) and any amendment or supplement thereto as such
Persons may reasonably require in order to facilitate the
disposition of Registrable Securities in accordance with the
intended methods of disposition by the sellers thereof set forth
in such Prospectus or amendment or supplement; the Company
consents to the use of such Prospectus or any amendment or
supplement thereto by each Holder of Registrable Securities
included in the Registration Statement and the underwriters, if
any, in connection with the offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or
supplement thereto, subject to the provisions of the last
paragraph of this Section 3;
(i) insure that all Registrable Securities
subject to the Registration Statement shall at all times be
registered or qualified for offer and sale under the securities
or blue sky laws of such jurisdictions as any Holder or
underwriter reasonably requests in writing; use its best efforts
to keep each such registration or qualification effective,
including through new filings or amendments or renewals, during
the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that the Company will not be
required to qualify to do business or take any action that would
subject it to taxation or general service of process in any
jurisdiction where it is not then so qualified or subject;
(j) cooperate with the Holders of Registrable
Securities included in the Registration Statement and the
managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates (not bearing any
restrictive legends), representing Registrable Securities to be
sold under the Registration Statement; and enable such Registrable
Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or such Holders
may request prior to any sale of Registrable Securities;
(k) use its best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate
the disposition of such Registrable Securities in accordance with
the chosen method or methods of distribution;
(l) cause all Registrable Securities included in
such Registration Statement to be listed, by the date of first
sale of Registrable Securities pursuant to such Registration
Statement, on the principal securities exchange or automated
interdealer system on which the same type of securities of the
Company are then listed or traded;
(m) enter into such agreements and take all such
other reasonable actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable
Securities and in such connection, (1) obtain a "cold comfort"
letter and updates thereof from the Company's independent
certified public accountants addressed to each Holder of
Registrable Securities included in the Registration Statement and
the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters given by accountants in connection with
underwritten offerings, (2) in the case of an underwritten
offering, (I) enter into an underwriting agreement in form, scope
and substance as is customary in underwritten offerings and use
its best efforts to 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
underwriter or underwriters) addressed to each selling Holder and
the underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such
other related matters as may be reasonably requested by such
Holders and underwriters, (II) the underwriting agreement shall
set forth in full the indemnification and contribution provisions
and procedures of Section 5 with respect to all parties (which in
all events shall include the underwriters and all Persons who
control the underwriters) to be indemnified pursuant to said
Section, and (III) the Company shall deliver such documents and
certificates as may be reasonably requested by the managing
underwriter or underwriters, if any, to evidence compliance with
any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company. The above shall
be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(n) make available for inspection by designated
representatives of the Holders of Registrable Securities included
in the Registration Statement, any underwriter participating in
any disposition pursuant to such Registration Statement and any
lawyer or accountant retained by such selling Holders or
underwriter all pertinent records and documents as they may
reasonably request; provide such persons full access upon
reasonable notice and at reasonable times to the personnel,
properties and all books, records and other information
concerning the Company (other than technical information
regarding designs, products, methods of manufacture or research)
and will furnish to such persons such financial and operating
data, including financial statements, and other information with
respect to the business, assets, financial condition and
operations of the Company as such persons shall from time to time
reasonably request; and the Company will permit such persons
access to the Company's personnel, consultants, agents,
attorneys, accountants, customers, suppliers, bankers, and others
who have significant relationships with the Company and the
Company's assets, books and records and the Company shall
provide such persons with any further information concerning the
Company to enable such persons to conduct an ongoing due
diligence review of the Company; PROVIDED, HOWEVER, that any
records, information or documents that are confidential in nature
shall be furnished by the Company only after the execution of a
confidentiality agreement by such persons;
(o) cause the Holders of Registrable Securities
to receive the following opinions (I) dated the date that the
Registration Statement is declared effective by the SEC and (II)
dated within ten (10) days following the filing by the Company of
its annual report on Form 10-K for its most recently completed
fiscal year, so long as the Registration Statement is effective:
1) an opinion of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, or such other outside counsel to the Company
satisfactory to the Holders, to the effect that:
(i) the statements (A) in the Prospectus
under the caption "Description of Capital Stock" and (B) in the
Registration Statement in Item 15, in each case insofar as such
statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize in all material
respects the matters referred to therein;
(ii) such counsel is of the opinion that the
Registration Statement and accompanying Prospectus (except for
financial statements, schedules and financial and statistical
data included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
SEC thereunder; and
(iii) in the opinions required to be
delivered pursuant to clause (II) above: In the course of the
preparation by the Company of the Registration Statement and the
Prospectus (excluding the documents incorporated by reference
therein, other than the Company's Annual Report on Form 10-K for
each fiscal year ending on or after December 31, 1996 (each an
"ICN Form 10-K")), such counsel participated in conferences with
certain of the officers and representatives of, and the
independent public accountants for, the Company. Between the
date of the Registration Statement and the time of delivery of
the opinion, such counsel participated in additional conferences
in connection with the preparation of the ICN Form 10-K with
certain officers and representatives of, and independent public
accountants for, the Company at which the contents of the ICN
Form 10-K were discussed. Such counsel did not participate in
the preparation or drafting of any other document incorporated by
reference in the Registration Statement and the Prospectus.
Given the limitations inherent in the independent verification of
factual matters and the character of determinations involved in
the registration process and in the preparation of the ICN Form
10-K, such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus,
including the documents incorporated by reference, and has not
made any independent check or verification thereof. Subject to
the foregoing and on the basis of the information such counsel
gained in the course of the performance of the services referred
to above, including information obtained from the officers and
other representatives of the Company, no facts have come to the
attention of such counsel that causes such counsel to believe
that the Registration Statement, at the time of the filing of the
ICN Form 10-K, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In each case, however, such counsel expresses no view or
belief with respect to financial statements, notes, schedules
or financial or statistical data included, or incorporated by
reference, in the Registration Statement or the Prospectus;
2) an opinion of Proskauer, Rose, Xxxxx &
Xxxxxxxxxx, or such other outside counsel to the Company
satisfactory to the Holders, to the effect that after due
inquiry, such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in any Registration Statement or
accompanying Prospectus and are not so described; and
3) an opinion of Xxxxx Xxxx, Executive Vice
President, General Counsel and Corporate Secretary of the
Company, or any other executive officer of the Company that may
come to hold such similar office, to the effect that:
(i) the Company is in good standing under
the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct
its business as described in any Registration Statement and
accompanying Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) each subsidiary of the Company is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as
described in any Registration Statement and accompanying
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) the statements (A) in the Prospectus
under the caption "Description of Capital Stock" and (B) in the
Registration Statement in Items 14 and 15, in each case insofar
as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(iv) after due inquiry, such counsel does
not know of any legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in
any Registration Statement or accompanying Prospectus and are not
so described or any of the statutes, regulations, contracts or
other documents that are required to be described in any
Registration Statement or accompanying Prospectus or to be filed
as exhibits to the Registration Statement that are not described
or filed as required; and
(v) such counsel (A) is of the opinion that
any Registration Statement and accompanying Prospectus (except
for financial statements, schedules and statistical data included
therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities
Act and the applicable rules and regulations of the SEC
thereunder, (B) has no reason to believe that (except for
financial statements, schedules and statistical data as to which
such counsel need not express any belief) any Registration
Statement or accompanying Prospectus at the time that the
Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) has no reason to believe that
(except for financial statements, schedules and statistical data
as to which such counsel need not express any belief) any
Prospectus contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading; and
(p) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC and make
generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act,
no later than ninety (90) days after the end of any 12-month
period (1) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm or best
efforts underwritten offering and (2) beginning with the first
day of the Company's first fiscal quarter next succeeding each
sale of Registrable Securities after the effective date of a
Registration Statement, which statements shall cover said 12-
month periods.
The Company's failure to take any of the actions
required pursuant to this Section 3 shall have the effect
specified in the Certificate of Designations.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to
furnish promptly to the Company such information regarding the
distribution of such securities as the Company may from time to
time reasonably request in writing.
Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of
any notice from the Company of the happening of any event of the
kind described in Section 3(c)(2)-(7) or upon receipt of any
notice from the Company of the commencement of any Delay Period
(as defined below), such Holder will, if the occurrence of such
event or period so requires, forthwith discontinue disposition of
such Registrable Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section
3(d), or until it is advised in writing by the Company that the
use of the applicable Prospectus may be resumed or that the
applicable Delay Period has ended, and has received copies of any
additional or supplemental filings which are incorporated by
reference in such Prospectus (the period from and including the
date of receipt of any such notice requiring the discontinuance
of the disposition of Registrable Securities to and including the
date that the Holder shall have received such supplemented or
amended Prospectus, advice and additional or supplemental filings
being hereinafter termed a "Blackout Period"), and, if so
directed by the Company, such Holder will, or will request the
managing underwriter or underwriters, if any, to, 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 covering such Registrable Securities current at the
time of receipt of such notice. The Company shall have the right
(i) to avoid the disclosure of any corporate development that the
Company is not otherwise obligated to disclose and (ii) to
satisfy SEC requirements relating to the financial statements of
businesses acquired, in either case by suspending the use of the
Registration Statement for a reasonable length of time not
exceeding an aggregate of ninety (90) days in any 360 day period
(a "Delay Period").
4. REGISTRATION EXPENSES. (a) All expenses incident
to the Company's performance of or compliance with this
Agreement, including, without limitation, all registration and
filing fees, fees with respect to the registration and filings
required to be made with the NYSE, fees, costs and expenses of
compliance with securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications
of the Registrable Securities), printing expenses, messenger,
telephone and delivery expenses, fees and disbursements of counsel
for the Company and of all independent certified public accountants
of the Company (including the expenses of any "cold comfort" letters
required by or incident to such performance), securities acts
liability insurance if the Company so desires and fees and expenses
or other Persons, including special experts, retained by the Company
will be borne by the Company whether or not the Registration
Statement becomes effective. In addition, the Company shall pay
the reasonable fees and expenses for not more than one counsel to
the sellers of Registrable Securities in connection with each
registration hereunder, such counsel to be designated by the
Holders of a majority of the Registrable Securities to be sold
pursuant to such registration. The Company will, in any event,
pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit and
the fees and expenses incurred in connection with the listing of
the securities to be registered on any securities exchange on
which similar securities issued by the Company are then listed.
(b) The Investors participating in any sale of
Registrable Securities shall pay all underwriting discounts and
selling commissions applicable to such sale of Registrable
Securities and all fees and disbursements of counsel incurred in
any such sale of Registrable Securities not otherwise provided
for in this Agreement.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless
each Holder, its directors and officers and each person, if any,
who controls each Holder within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, suits, damages, causes of
action, liabilities, costs and expenses (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or
claim) to which such Holder or other person may become subject to
under the Securities Act or under the Exchange Act or otherwise,
arising from or relating to any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that the
Company's indemnification obligations shall not extend to any
misstatement or alleged misstatement or omission or alleged
omission with reference to information relating to any Holder
furnishing in writing by or on behalf of such Holder expressly
for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements
thereto; and PROVIDED FURTHER that the indemnification contained
in this paragraph (a) with respect to any preliminary Prospectus
shall not inure to the benefit of any Holder (or to the benefit
of any Person controlling such Holder) on account of any such
loss, claim, damage, liability or expense arising from the sale
of the Registrable Securities by such Holder to any person if a
copy of the Prospectus shall not have been delivered or sent to
such Person within the time required by the Securities Act and
the regulations thereunder (if such Prospectus is so required to
be delivered), and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact
contained in such preliminary Prospectus was corrected in the
Prospectus, provided that the Company has delivered the
Prospectus to the Holders in requisite quantity on a timely basis
to permit such delivery or sending.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act and each other Holder, from and against any and all losses,
claims, suits, damages, causes of action, liabilities, costs and
expenses (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) to which the Company or
such person may become subject to under the Securities Act or
under the Exchange Act or otherwise, arising from or relating to
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to
such Holder furnishing in writing by or on behalf of such Holder
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to paragraph
(a) or (b) of this Section 5, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such indemnified party
unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of other counsel or (ii)
the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing
interests between them; PROVIDED, HOWEVER, that it is understood
that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to one firm of local counsel in any jurisdiction)
for all indemnified parties, their directors, officers and all
persons, if any, who control such indemnified parties within the
meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act. In the case of any such separate firm, such
firm shall be designated in writing by a majority of the
indemnified parties. All such fees and expenses shall be
reimbursed as they are incurred; PROVIDED, HOWEVER, that if it is
subsequently determined by a court of competent jurisdiction not
subject to appeal that such indemnified party was not entitled to
such indemnification, then the indemnified party shall promptly
reimburse the indemnifying party for all the fees and expenses of
such separate firm of counsel previously paid by the indemnifying
party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, suits, damages, causes of action, liabilities, costs and
expenses referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, suits,
damages, causes of action, liabilities, costs and expenses (i) in
such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one
hand and by the indemnified party or parties on the other hand in
connection with the actions that resulted in such losses, claims,
suits, damages, causes of action, liabilities, costs and expenses
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying part or
parties on the one hand and of the indemnified party or parties
on the other hand in connection with the actions that resulted in
such losses, claims, suits, damages, causes of action,
liabilities, costs and expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on
the one hand and the Holders on the other hand shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact or other
action arising under the Securities Act or the Exchange Act
relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The Holders' respective obligations to contribute
pursuant to this Section 5 are several in proportion to the
respective number of shares of Preferred Stock they have
purchased, and not joint.
(e) The Company and the Holders agree that it would
not be just or equitable if contribution pursuant to this Section
5 were determined by PRO RATA allocation or by any other method
of allocation that does not take account of the equitable
considerations referred to in paragraph (d) of this Section 5.
The amount paid or payable by an indemnified party as a result of
the losses, claims, suits, damages, causes of action,
liabilities, costs and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall
be required to indemnify and contribute any amount in excess of
the amount by which the total price at which the shares of Common
Stock offered by such Holder and distributed to the public were
offered to the public exceed the amount paid by such Holder for
the underlying Preferred Stock converted into such shares of
Common Stock. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in
this Section 5 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions
contained in this Section 5 shall remain operative and in full
force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Holder, its officers or directors or any person controlling such
Holder; or the Company, its officer or directors or any person
controlling the Company and (iii) acceptance of any payment for
any of the Preferred Stock.
6. SEC FILINGS.
The Company agrees that it will file the reports
required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC
thereunder. The Company shall cause its annual reports to
stockholders and any quarterly or other financial reports and
information furnished by it to stockholders pursuant to the
requirements of the Exchange Act to be mailed to the Holders of
Registrable Securities (no later than the date such materials are
mailed to the Company's stockholders). If the Company is not
required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act, it shall cause its
financial statements, including any notes thereto (and with
respect to annual reports, an auditors' report by a nationally
recognized firm of independent certified public accountants), a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and such other information which the
Company would otherwise be required to include in annual and
quarterly reports filed under the Exchange Act, to be mailed to
the Holders of Registrable Securities, within one hundred twenty
(120) days after the end of each of the Corporation's fiscal
years and within sixty (60) days after the end of each of its
first three fiscal quarters.
7. UNDERWRITTEN REGISTRATION.
If any of the Registrable Securities are to be sold in
an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority of the Registrable
Securities to be sold in such offering, which investment banker
or investment bankers or manager or managers will be reasonably
satisfactory to the Company.
Notwithstanding anything herein to the contrary, no
Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwritten arrangements approved by
the Persons entitled hereunder to approve such arrangement and
(b) accurately completes and executes all questionnaires, powers
of attorney, indemnities, custody agreements, underwriting
agreements and other documents required under the terms of such
underwriting arrangements.
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. The Company has
not previously entered into any agreement with respect to its
securities granting any registration rights to any Person, and
will not on or after the date of this Agreement enter into any
agreement with respect to its securities, which in either case is
inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of
this Agreement, including the provisions of this sentence, may
not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless
the Company has obtained the written consent of the Holders owning
at least a majority of the Registrable Securities then outstanding.
Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter which relates
exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and
which does not directly or indirectly affect the rights of other
Holders may be given by Holders owning a majority of the shares of
the Registrable Securities being sold by such Holders, provided that
the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(c) NOTICES. Any notices or other communications
required or permitted hereunder shall be given in writing and
shall be delivered by facsimile transmission to the below listed
facsimile numbers, with a confirmation of such facsimile
transmission sent by certified or registered mail, postage
prepaid, to the following addresses:
If to the Investors:
At their facsimile number and address specified on
Schedule A hereto
Copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
If to the Company:
ICN Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
Copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
and thereafter at such other facsimile number or address, notice
of which has been given in accordance with this Section 8(d).
Each such notice or communication shall be deemed to be effective
when such facsimile transmission is transmitted to the facsimile
number specified in this Section 8(d) and the appropriate
answerback is received.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall
inure to the benefit of and be binding upon the successors of
each of the parties and subsequent Holders of Preferred Stock who
agree to be bound by all of the terms and conditions of this
Agreement.
(f) COUNTERPARTS. This Agreement may be executed
in two or more counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same instrument.
(g) HEADING. The headings in this Agreement are
for convenience of reference only and shall not constitute a part
of this Agreement, nor shall they affect their meaning,
construction or effect.
(h) GOVERNING LAW. The validity, performance,
construction and effect of this Agreement shall be governed by
and construed in accordance with the internal laws of the State
of New York, without giving effect to principles of conflicts of
law.
(i) SEVERABILITY. In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired
thereby.
(j) ENTIRE AGREEMENT. This Agreement, the
Subscription Agreement and the Certificate of Designations are
intended by the parties as a final expression of their agreement
and are intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein, with respect to
the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement, the Subscription
Agreement and the Certificate of Designations supersede all prior
agreements and understandings between the parties with respect to
such subject matter.
(k) ATTORNEYS' FEES. The prevailing party, as
determined by the judge presiding over the action or proceeding,
in any action or proceeding brought to enforce any provision of
this Agreement, or any party validly asserting any provision
hereof as a defense in any such action or proceeding, shall be
entitled to recover reasonable attorneys' fees, in addition to
costs and expenses and any other available remedy.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
COMPANY:
ICN PHARMACEUTICALS, INC.
By:
--------------------------------
Name:
Title:
REGISTRATION RIGHTS AGREEMENT
INVESTOR:
By:
--------------------
Name:
Title:
SCHEDULE A
NOTICES
CIBC Wood Gundy
Securities Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxx XX
Halifax Fund, L.P.
c/o The Palladin Group, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Ramius Fund Limited
c/o The Palladin Group, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Palladin Partners, L.P.
c/o The Palladin Group, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Gershon Partners, L.P.
c/o The Palladin Group, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Cerberus Partners, L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Hare & Co.
c/o XxxXxx- Xxxxxxx
Financial Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxx Xxxxxx
Cypress & Co.
c/o XxxXxx- Xxxxxxx
Financial Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxx Xxxxxx
Daffodil & Co.
c/o XxxXxx- Xxxxxxx
Financial Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxx Xxxxxx
