Exhibit E
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of November 5, 1998 (this
"Registration Rights Agreement"), between INAMED CORPORATION, a Florida
corporation (the "Company"), and Santa Xxxxxxx Bank & Trust, as trustee for
the benefit of the holders of the Company's 11% Senior Subordinated Secured
Notes due March 31, 1999, or at the option of the Company exercised as
provided therein, September 1, 2000 (in such capacity, the "Trustee").
1. Background. The Indenture dated as of November 5, 1998 (the
"Subordinated Indenture") between the Company and the Trustee provides,
subject to its terms and conditions, for the issuance by the Company of its
11% Senior Subordinated Secured Notes due March 31, 1999, or at the option
of the Company as provided therein, September 1, 2000 (the "Exchange
Notes") as well as certain warrants to purchase the Company's common stock,
$.01 per share, (the "Warrants") to be issued in exchange for the Company's
11% Secured Convertible Notes due 1999 (the "Old Notes") to the holders
thereof pursuant to the Securities Exchange Agreement dated as of October
7, 1998 (the "Exchange Agreement"). It is a condition to the exchange of
the Old Notes for the Exchange Notes and Warrants by the Purchasers that
the Company shall have executed and delivered this Agreement.
To induce the Trustee to enter into the Subordinated Indenture,
and to induce the Purchasers to exchange the Old Notes, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company has agreed to grant the registration rights
provided for hereunder. Accordingly, the Company agrees with the Trustee as
follows:
2. Definitions. Unless otherwise defined, all capitalized terms used
in this Agreement that are defined in the Subordinated Indenture or in the
Exchange Agreement (including those terms incorporated therein by
reference) shall have the respective meanings assigned to them in the
Subordinated Indenture or the Exchange Agreement, as applicable. In
addition, the following terms shall have the following meanings under this
Agreement:
"Exchange Notes" means the Company's 11.00% Senior Subordinated
Secured Notes due March 31, 1999 or at the option of the Company exercised
as provided therein, September 1, 2000 (the "Exchange Notes") issued
pursuant to the Subordinated Indenture dated as of November 5, 1998 between
the Company and Santa Xxxxxxx Bank & Trust, as trustee.
"Note Purchase Agreement" shall mean the agreement dated as of
September 30, 1998 between the Company, the parties listed on Exhibit A
thereto and Appaloosa Management L.P., as Collateral Agent.
"Incidental Registration" is defined in Section 3.2.
"Participating Holders" means the holders of Registrable
Securities participating in the particular registration.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 3, including, without
limitation, all registration, filing and applicable fees of the Commission,
stock exchange or NASD registration and filing fees and all listing fees
and fees with respect to the inclusion of securities in NASDAQ (as defined
in Section 3.3(j)), all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to
the underwriters or the Participating Holders in connection with "blue sky"
qualification of the Registrable Securities and determination of their
eligibility for investment under the laws of the various jurisdictions),
all word processing, duplicating and printing expenses, all messenger and
delivery expenses, the fees and disbursements of counsel for the Company
and of its independent public accountants including the expenses of "cold
comfort" letters required by or incident to such registration, all fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, all transfer taxes, and the fees and expenses of one counsel to
the Participating Holders (to be selected by the Trustee on behalf of, and
upon notice from, the Requisite Percentage of Participating Holders);
provided, however, that Registration Expenses shall exclude and the
Participating Holders shall agree to pay underwriters' fees and
underwriting discounts and commissions in respect of the Registrable
Securities being registered in connection with their inclusion in any
registration under Sections 3.1 or 3.2 hereunder.
"Registrable Securities" means the Exchange Notes. As to any
particular Registrable Securities, such securities shall cease to be
Registrable Securities (a) when a registration statement with respect to
the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (b) when such securities shall
have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer under the Securities Act shall have
been delivered by the Company and subsequent public distribution of them
shall not require registration of them under the Securities Act, (c) when
such securities are sold pursuant to Rule 144 (or similar rule adopted by
the Commission) under the Securities Act, or (d) when such securities cease
to be outstanding.
"Requested Registration" is defined in Section 3.1(a).
"Requisite Percentage of Outstanding Holders" means the holders
of Registrable Securities who hold 25% or more of the aggregate principal
amount of the Exchange Notes that are then outstanding.
"Requisite Percentage of Participating Holders" means
Participating Holders of Registrable Securities who hold a majority of the
Exchange Notes that are then being held by all Participating Holders.
3. Registration Under Securities Act, etc.
3.1 Requested Registrations.
(a) Request for Registration. Subject to the limitations
imposed by Sections 3.1(c), at any time and from time to time, the Trustee,
on behalf of, and upon notice from, one or more holders of Registrable
Securities representing the Requisite Percentage of Outstanding Holders,
shall have the right to require the Company to file a registration
statement under the Securities Act covering all or any part of the
Registrable Securities of such Holders, by delivering a written request
therefor to the Company specifying the number and amount of Registrable
Securities and the intended method of distribution thereof. Any such
request pursuant to this Section 3.1(a) is referred to herein as a
"Requested Registration." The Company shall give prompt written notice of
each Requested Registration to all other holders of record of Registrable
Securities, and thereupon the Company shall use its best efforts to effect
the registration under the Securities Act so as to permit promptly the
sale, in accordance with the intended method of distribution, of the
Registrable Securities which the Company has been so requested to register
in the Requested Registration and all other Registrable Securities which
the Company has been requested to register by the Trustee, on behalf of,
and upon notice from, the holders thereof, by written request given to the
Company within 30 days after the giving of such written notice by the
Company.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 3.1 in connection with
an underwritten offering by one or more Participating Holders of
Registrable Securities, securities other than Registrable Securities shall
not be included among the securities covered by such registration to the
extent that the managing underwriter of such underwritten offering shall
inform the Company by letter of its belief that the inclusion of such other
securities would materially adversely affect such offering (including,
without limitation, on the pricing of the offering).
(c) Limitations on Requested Registrations; Expenses. The
rights of the Trustee, on behalf of the holders of Registrable Securities,
to request Requested Registrations pursuant to Section 3.1(a) are subject
to the following limitations: (i) the Company shall not be obligated to
effect a Requested Registration having an aggregate anticipated offering
price of less than U.S. $1,000,000 unless such offering shall cover all
remaining Registrable Securities; (ii) the Company shall not be obligated
to effect a Requested Registration within six months after the effective
date of any other registration of securities (other than pursuant to a
registration on Form S-8 or any successor or similar form which is then in
effect); and (iii) the Company will pay all Registration Expenses only in
connection with the first three Requested Registrations of Registrable
Securities pursuant to this Section 3.1 that have become effective under
the Securities Act.
(d) Registration Statement Form. Registrations under this
Section 3.1 shall be on Form S-1, Form S-3 or any successor forms, if
permitted, or such appropriate registration form of the Commission as shall
be selected by the Company and as shall be reasonably acceptable to the
Trustee, on behalf of, and upon notice from, the Requisite Percentage of
Participating Holders. The Company agrees to include in any such
registration statement all information which, in the opinion of counsel to
the Participating Holders and counsel to the Company, is required to be
included.
(e) Effective Registration Statement. A registration
requested pursuant to this Section 3.1 shall not be deemed to have been
effected (including for purposes of paragraph (c) of this Section 3.1) (i)
unless a registration statement with respect thereto has become effective
and has been kept continuously effective for a period of at least 90 days
(or such shorter period which shall terminate when all the Registrable
Securities covered by such registration statement have been sold pursuant
thereto), (ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other Governmental Authority or court for any reason
not attributable to the Participating Holders and has not thereafter become
effective, or (iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure
on the part of the Participating Holders.
(f) Selection of Underwriters. The managing underwriter or
underwriters of each underwritten offering of the Registrable Securities
registered under this Section 3.1 shall be selected by the Trustee, on
behalf of, and upon notice from, the Requisite Percentage of Participating
Holders (and shall be reasonably acceptable to the Company).
(g) Cutbacks in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the Company in
writing (with a copy to the Trustee and each Participating Holder) that, in
its opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering within a
price range acceptable to the Requisite Percentage of Participating
Holders, the Company will include in such registration, to the extent of
the number which the Company is so advised can be sold in such offering,
Registrable Securities requested to be included in such registration, pro
rata among the Participating Holders requesting such registration in
accordance with the principal amount of Exchange Notes held by each such
Participating Holder so requested to be registered, and any securities of
the Company included in such registration pursuant to Section 3.1(b) shall
be reduced proportionately.
(h) Postponement. The Company shall be entitled once in any
six-month period to postpone for a reasonable period of time (but not
exceeding 90 days) the filing of any registration statement required to be
prepared and filed by it pursuant to this Section 3.1 if the Company
determines, in its reasonable judgment, that such registration and offering
would interfere with any financing, corporate reorganization or other
material transaction or development involving the Company or any subsidiary
or would require premature disclosure thereof, and promptly gives the
holders of Registrable Securities requesting registration thereof pursuant
to this Section 3.1 written notice of such determination, containing a
statement of the reasons for such postponement and an approximation of the
anticipated delay. If the Company shall so postpone the filing of a
registration statement, the Trustee, on behalf of, and upon notice from,
the Participating Holders representing the Requisite Percentage of
Participating Holders, shall have the right to withdraw the request for
registration by giving written notice to the Company within 20 days after
receipt of the notice of postponement and, in the event of such withdrawal,
such request shall not be counted toward the number of Requested
Registrations (including for purposes of paragraph (c) of this Section
3.1).
(i) Holder's Right to Withdraw. The Trustee, on behalf of,
and upon notice from, the Requisite Percentage of Participating Holders,
shall have the right to withdraw the request for registration pursuant to
Section 3.1 at any time by giving written notice to the Company of its
request to withdraw and such request (if made before the filing of the
registration statement with the Securities and Exchange Commission) shall
not be counted toward the number of Requested Registrations (including for
purposes of paragraph (c) of this Section 3.1).
3.2 Incidental Registration.
(a) Incidental Registration. If, at any time, the Company
proposes or is required to register any of its securities under the
Securities Act (other than pursuant to registrations on such form or
similar form(s) solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan) (an "Incidental
Registration"), the Company will give prompt written notice to the Trustee
and all holders of record of Registrable Securities of its intention to so
register its securities and of such holders' rights under this Section 3.2.
Upon the written request of the Trustee, on behalf of, and upon notice
from, any holder of Registrable Securities, made within 20 days following
the receipt of any such written notice (which request shall specify the
maximum number of Registrable Securities intended to be disposed of by such
holder and the intended method of distribution thereof), the Company will
use its best efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to
register by the Trustee, on behalf of, and upon notice from, the holders
thereof, together with any other securities the Company is obligated to
register pursuant to incidental registration rights of other security
holders of the Company. No registration effected under this Section 3.2
shall relieve the Company of its obligation to effect any Requested
Registration under Section 3.1.
(b) Abandonment or Delay. If, at any time after the Company
has giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine not to
register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination and its reasons
therefor to the Trustee and all holders of record of Registrable Securities
and (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with
such registration (but not from any obligation of the Company to pay the
Registration Expenses in connection therewith), without prejudice, however,
to the rights of the Trustee, on behalf of, and upon notice from, any
holder or holders of Registrable Securities entitled to do so, to request
that such registration be effected as a registration under Section 3.1, and
(ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities for the same
period as the delay in registering such other securities.
(c) Holder's Right to Withdraw. The Trustee, on behalf of,
and upon notice from, any holder of Registrable Securities, shall have the
right to withdraw its request for inclusion of the Registrable Securities
of such holder in any registration statement pursuant to this Section 3.2
at any time by giving written notice to the Company of its request to
withdraw.
(d) Unlimited Number of Registrations; Expenses. There is no
limitation on the number of Incidental Registrations which the Company is
obligated to effect pursuant to this Section 3.2. The Company will pay all
Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 3.2.
(e) Underwriters' Cutback in Incidental Registrations. If
the managing underwriter of any underwritten offering shall inform the
Company by letter of its belief that the number of Registrable Securities
requested to be included in such registration would materially adversely
affect such offering, then the Company will include in such registration,
first, the securities proposed by the Company to be sold for its own
account, second, if applicable, the securities proposed by the Company to
be sold for the account of a holder of securities who has made a demand for
registration pursuant to a section of a registration rights agreement
between such holder and the Company analogous to Section 3.1 hereof, and
third, the Registrable Securities and all other securities of the Company
to be included in such registration to the extent of the number and type
which the Company is so advised can be sold in (or during the time of) such
offering, pro rata among the Participating Holders and such other holders
requesting such registration in accordance with the principal amount of
Exchange Notes held by each Participating Holder and each such other holder
so requested to be registered.
3.3 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 3.1
or 3.2 hereof, the Company will as expeditiously as possible:
(a) prepare and file with the Commission as soon as
practicable the requisite registration statement to effect such
registration (and shall include all financial statements required
by the Commission to be filed therewith) and thereafter use its
best efforts to cause such registration statement to become
effective; provided, however, that before filing such
registration statement (including all exhibits) or any amendment
or supplement thereto or comparable statements under securities
or blue sky laws of any jurisdiction, the Company shall furnish
such documents to the Trustee, the Participating Holders and
their counsel, and each underwriter, if any, participating in the
offering of the Registrable Securities and its counsel; and
provided, further, however, that the Company may discontinue any
registration of its securities which are not Registrable
Securities at any time prior to the effective date of the
registration statement relating thereto;
(b) notify the Trustee and each Participating Holder of the
Commission's requests for amending or supplementing the
registration statement and the prospectus, and 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 Registrable Securities
covered by such registration statement for such period as shall
be required for the disposition of all of such Registrable
Securities, provided, that such period need not exceed 90 days;
(c) furnish, without charge, to the Trustee and each
Participating Holder 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 contained in such registration statement
(including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as the Trustee may
reasonably request on behalf of and upon notice from such
Participating Holders;
(d) use its best efforts (i) to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such securities or blue sky laws of
such States of the United States of America where an exemption is
not available and as the Trustee shall reasonably request on
behalf of, and upon notice from, the Participating Holders, (ii)
to keep such registration or qualification in effect for so long
as such registration statement remains in effect, and (iii) to
take any other action which may be reasonably necessary or
advisable to enable such Participating Holders to consummate the
disposition in such jurisdictions of the securities to be sold by
such Participating Holders, 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 would not
but for the requirements of this subsection (d) be obligated to
be so qualified or to consent to general service of process in
any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other federal or state or foreign governmental
agencies or authorities as may be necessary in the opinion of
counsel to the Company and counsel to the Participating Holders
to consummate the disposition of such Registrable Securities;
(f) furnish to the Trustee, each Participating Holder and
each underwriter, if any, participating in the offering of the
securities covered by such registration statement, a signed
counterpart of
(i) an opinion of outside counsel (or inside counsel if
satisfactory to each underwriter) for the Company, and
(ii) a "comfort" letter signed by the independent
public accountants who have certified the Company's
financial statements included or incorporated by reference
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
the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' comfort letters delivered to the underwriters
in underwritten public offerings of securities (and dated
the dates such opinions and comfort letters are customarily
dated) and, in the case of the legal opinion, such other
legal matters, and, in the case of the accountants' comfort
letter, such other financial matters, as the Trustee, on
behalf of, and upon notice from, the Requisite Percentage of
Participating Holders, or the underwriters, may reasonably
request;
(g) promptly notify the Trustee, each Participating Holder
and each managing underwriter, if any, participating in the
offering of the securities covered by such registration statement
(i) when such registration statement, any pre-effective
amendment, the prospectus or any prospectus supplement related
thereto or post-effective amendment to such registration
statement has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission for
amendments or supplements to such registration statement or the
prospectus related thereto or for additional information; (iii)
of the issuance by the Commission of any stop order suspending
the effectiveness of such registration statement or the
initiation of any proceedings for that purpose; (iv) 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 under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such
purpose; (v) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery
that, or upon 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 under which they were made, and in the
case of this clause (v), at the request of the Trustee, on behalf
of, and upon notice from, any Participating Holder, promptly
prepare and furnish to it and each managing underwriter, if any,
participating in the offering of the Registrable Securities 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 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 under which they were made; and (vi)
at any time when the representations and warranties of the
Company contemplated by Section 3.4(a) hereof cease to be true
and correct;
(h) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the
first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule
158 promulgated thereunder, and promptly furnish to the Trustee
and each such Participating Holder a copy of any amendment or
supplement to such registration statement or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all
Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such
registration;
(j) use its best efforts to cause all Registrable Securities
covered by such registration statement to be listed on a national
securities exchange or to secure designation of all such
Registrable Securities as a National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") "national
market system security" within the meaning of Rule 11Aa2-1 of the
Commission;
(k) deliver promptly to the Trustee, counsel to the
Participating Holders and each underwriter, if any, participating
in the offering of the Registrable Securities, copies of all
correspondence between the Commission and the Company, its
counsel or auditors and all memoranda relating to discussions
with the Commission or its staff with respect to such
registration statement;
(l) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the registration
statement;
(m) provide a CUSIP number for all Registrable Securities,
no later than the effective date of the registration statement;
and
(n) make available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into
account the needs of the Company's businesses) in their marketing
of Registrable Securities.
Prior to their inclusion in any registration under Sections 3.1 or 3.2
hereunder, the Company may require each Participating Holder as to the
Registrable Securities of whom any registration is being effected to
furnish the Company such information regarding such holder and the
distribution of such securities as the Company may from time to time
reasonably request in writing.
Prior to their inclusion in any registration under Sections 3.1
or 3.2 hereunder, each holder of Registrable Securities shall agree that
upon receipt of any notice from the Company of the happening of any event
of the kind described in subsection (g) (iii) or (v) of this Section 3.3,
the Participating Holder will forthwith discontinue such holder's
disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until, in the case of
subsection (g)(iii) of this Section 3.3, such stop order is removed or
proceedings therefor terminated, and, in the case of subsection (g)(v) of
this Section 3.3, such holder's receipt of the copies of the supplemented
or amended prospectus contemplated by subsection (g)(v) of this Section 3.3
and, if so 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 current at the time of receipt of such notice.
3.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by Participating Holders
pursuant to a registration requested under Section 3.1, the Company will
use its best efforts to enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Company, each such holder and the
underwriters and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of
that type, including, without limitation, indemnities to the effect and to
the extent provided in Section 3.6 hereof. Prior to their participation in
such underwritten offering, the Participating Holders will cooperate with
the Company in the negotiation of the underwriting agreement and will give
consideration to the reasonable suggestions of the Company regarding the
form thereof and the Participating Holders shall be parties to such
underwriting agreement and may, at their option, require that any or all of
the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of the Participating Holders and that any or
all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the
obligations of the Participating Holders. No Participating Holder shall 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 ownership of and title to
the Registrable Securities, such holder's intended method of distribution
and any other representations required by law, and any liability of the
Participating Holder to any underwriter or other person under such
underwriting agreement shall be limited to liability arising from
misstatements in or omissions from its representations and warranties and
shall be limited to an amount equal to the net proceeds that the
Participating Holder derives from such registration.
(b) Incidental Underwritten Offerings. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 3.2 hereof and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by the Trustee, on behalf of, and upon notice from, any
Participating Holder, use its best efforts to arrange for such underwriters
to include all the Registrable Securities to be offered and sold by such
Participating Holder among the securities of the Company to be distributed
by such underwriters. Prior to their participation in such underwritten
offering, the Participating Holders shall be parties to the underwriting
agreement between the Company and such underwriters and may, at their
option, require that any or all of the representations and warranties by,
and the other agreements 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
Participating Holders and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Participating Holders. No
Participating Holder shall 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 ownership of and title to the Registrable Securities, such
holder's intended method of distribution and any other representations
required by law, and any liability of the Participating Holder to any
underwriter or other person under such underwriting agreement shall be
limited to liability arising from misstatements in or omissions from its
representations and warranties and shall be limited to an amount equal to
the net proceeds that the Participating Holder derives from such
registration.
3.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the Trustee, the
Participating Holders 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, to the extent practicable, each amendment thereof
or supplement thereto, and give each of them such access to its books and
records and such opportunities to discuss the business of the Company with
its officers and employees and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of
such holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
3.6 Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless, to the fullest
extent permitting by law, each Participating Holder, its directors,
officers, partners, attorneys, agents and affiliates or general and limited
partners (and the directors, officers, employees, stockholders and
affiliates thereof), and 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 Participating Holder or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages, or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened) to which such Participating
Holder or any such director, officer, partner, agent or affiliate or
underwriter or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities,
joint or several (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto,
together with the documents incorporated by reference therein, or any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein in light of
the circumstances in which they were made not misleading, and the Company
will reimburse such Participating Holder and each such director, officer,
partner, agent or affiliate, or general or limited partner, underwriter and
controlling Person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, that the Company shall not be
liable 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 in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on
behalf of such Participating Holder or underwriter, as the case may be,
specifically stating that it is for use in the preparation thereof; and
provided, further, that the Company shall not be liable to any Person who
participates as an underwriter in the offering or sale of Registrable
Securities or any other 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 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 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 such final prospectus. Such
indemnity shall remain in full force regardless of any investigation made
by or on behalf of such Participating Holder or any such director, officer,
partner, attorney, agent or affiliate or controlling Person and shall
survive the transfer of such securities by such Participating Holder.
(b) Indemnification by the Participating Holders. As a
condition to including any Registrable Securities in any registration
statement, the Company shall have received an undertaking satisfactory to
it from the Participating Holders to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subsection (a) of this
Section 3.6) the Company, each director and officer 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 or alleged statement in
or omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, but only if such statement
or alleged statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company
through an instrument duly executed by such Participating Holder
specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement; provided, however, that the liability
of such indemnifying party under this Section 3.6(b) shall be limited to
the amount of net proceeds received by such indemnifying party in the
offering giving rise to such liability. 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 securities by the Participating Holder.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections of this Section
3.6, 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 or proceeding; provided, however, 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 3.6, except to the extent that the indemnifying
party is materially prejudiced by such failure to give notice, and shall
not relieve the indemnifying party from any liability which it may have to
the indemnified party otherwise than under this Section 3.6. In case any
such action or proceeding is brought against an indemnified party, the
indemnifying party shall be entitled to participate therein and, unless in
the opinion of outside counsel to the indemnified party a conflict of
interest between such indemnified and indemnifying parties may exist in
respect of such claim, 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; provided,
however, that if the defendants in any such action or proceeding include
both the indemnified party and the indemnifying party and if in the opinion
of outside counsel to the indemnified party there may be legal defenses
available to such indemnified party and/or other indemnified parties which
are different from or in addition to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to defend such action or proceeding on behalf of such
indemnified party or parties, provided, further, that the indemnifying
party shall be obligated to pay for only one counsel for all indemnified
parties. After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and approval by the
indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation (unless the first proviso in the
preceding sentence shall be applicable). No indemnifying party shall be
liable for any settlement of any action or proceeding effected without its
written consent. No indemnifying party shall, 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 to such claim or litigation.
(d) Contribution. If the indemnification provided for in
this Section 3.6 shall for any reason be held by a court to be unavailable
to an indemnified party under subsection (a) or (b) hereof in respect of
any loss, claim, damage or liability, or any action in respect thereof,
then, in lieu of the amount paid or payable under subsection (a) or (b)
hereof, the indemnified party and the indemnifying party under subsection
(a) or (b) hereof shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the
Participating Holders which resulted in such loss, claim, damage or
liability, or action in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as shall be appropriate
to reflect not only the relative fault but also the relative benefits
received by the Company and the Participating Holders from the offering of
the securities covered by such registration statement as well as any other
relevant equitable considerations. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 3.6(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above. 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 Participating Holders' obligations to contribute as
provided in this subsection (d) are several and not joint in proportion to
the relative value of their respective Registrable Securities covered by
such registration statement. In addition, no Person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any
action or claim effected without such Person's consent, which consent shall
not be unreasonably withheld. Notwithstanding anything in this subsection
(d) to the contrary, no indemnifying party (other than the Company) shall
be required to contribute any amount in excess of the net proceeds received
by such party from the sale of the Registrable Securities in the offering
to which the losses, claims, damages or liabilities of the indemnified
parties relate.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subsections of this Section 3.6
(with appropriate modifications) shall be given by the Company and each
Participating Holder with respect to any required registration or other
qualification of securities under any federal or state law or regulation of
any governmental authority other than the Securities Act. The
indemnification agreements contained in this Section 3.6 shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
by or on behalf of any indemnified party and shall survive the transfer of
any of the Registrable Securities by any of the Participating Holders.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 3.6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
3.7 Certain Rights of the Holders If Named in a Registration
Statement. If any statement contained in a registration statement under the
Securities Act or in any filing under the state securities laws of any
jurisdiction refers to any Holder by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory
to such Holder, to the effect that the holding by such Holder of such
securities does not necessarily make such Holder a "controlling person" of
the Company within the meaning of the Securities Act and is not to be
construed as a recommendation by such Holder of the investment quality of
the Company's debt or equity securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company or (ii) in the event that such
reference to such Holder by name or otherwise is not, in the reasonable
judgment of such Holder as advised by its counsel, required by the
Securities Act or any of the rules and regulations promulgated thereunder,
or any state securities laws of any jurisdiction, the deletion of the
reference to such Holder.
3.8 Unlegended Exchange Notes. In connection with the offering of
any Registrable Securities registered pursuant to this Article 3, the
Company shall (i) facilitate the timely preparation and delivery to
Participating Holders and the underwriters, if any, participating in such
offering, of unlegended Exchange Notes representing ownership of such
Registrable Securities being sold in such denominations and registered in
such names as requested by such Participating Holders or such underwriters
and (ii) instruct any transfer agent and registrar of such Registrable
Securities to release any stop transfer orders with respect to any such
Registrable Securities.
3.9 Limitation on Sale or Distribution of Other Securities. The
Company hereby agrees that, if it shall previously have received a request
for registration pursuant to Section 3.1 or 3.2 hereof, and if such
previous registration shall not have been withdrawn or abandoned, (i) the
Company shall not effect any public or private offer, sale or other
distribution of its securities or effect any registration of any of its
equity securities under the Securities Act (subject to the provisions of
Section 3.2 hereof) (other than a registration on Form S-8 or any successor
or similar form which is then in effect), whether or not for sale for its
own account, until a period of 90 days (or such shorter period as the
Trustee shall agree, on behalf of, and upon notice from, the Requisite
Majority of Participating Holders) shall have elapsed after the effective
date of such previous registration (and the Company shall so provide in any
registration rights agreements hereafter entered into with respect to any
of its securities); and (ii) the Company shall use its best efforts to
cause each holder of its equity securities purchased from the Company at
any time after the date of this Agreement other than in a public offering
to agree not to effect any public sale or distribution of any such
securities during such period, including a sale pursuant to Rule 144 under
the Securities Act.
3.10 No Required Sale. Nothing in this Agreement shall be deemed
to create an independent obligation on the part of any Participating Holder
to sell any Registrable Securities pursuant to any effective registration
statement.
4. Rule 144. The Company shall take all actions reasonably necessary
to enable holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144, or (b) any similar rule or regulation
hereafter adopted by the Commission including, without limiting the
generality of the foregoing, filing on a timely basis all reports required
to be filed by the Exchange Act. Upon the request of the Trustee, on behalf
of and upon notice from any holder of Registrable Securities, the Company
will deliver to the Trustee and to such holder a written statement as to
whether it has complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended with the
consent of (i) the Company and (ii) the Trustee, on behalf of, and upon
notice from, the holders of at least 51% in aggregate principal amount of
the outstanding Exchange Notes. The Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by
it, in each case only if the Company shall have obtained the written
consent to such action or omission to act, of the Trustee, on behalf of,
and upon notice from, the holders of at least 51% in aggregate principal
amount of the outstanding Exchange Notes. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
consent authorized by this Section 5, whether or not such Registrable
Securities shall have been marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company (accompanied by a written acknowledgment of, and consent to, such
election by such nominee), be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or
holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable
Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects to be treated as the holder of such Registrable
Securities, the Company may require assurances reasonably satisfactory to
it of such owner's beneficial ownership of such Registrable Securities.
7. Notices. All communications provided for hereunder shall be
personally delivered or sent by telecopier (and confirmed by telephone) or
by a reputable overnight courier, and shall be addressed as follows:
(a) if to the Trustee, addressed to it in the manner set forth in
the Exchange Agreement, or at such other address as it shall have furnished
to the Company in writing;
(b) if to any Holder, addressed to it in the manner set forth in
the Exchange Agreement, or at such other address as it shall have furnished
to the Company in writing;
(c) if to any other holder of Registrable Securities, at the
address that such holder shall have furnished to the Company in writing,
or, until any such other holder so furnishes to the Company an address,
then to and at the address of the last holder of such Registrable
Securities who has furnished an address to the Company; or
(d) if to the Company, addressed to it in the manner set forth in
the Exchange Agreement, or at such other address as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding.
8. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by the
Company. This Agreement and/or the registration and other rights contained
herein (including these assignment rights) may be assigned by the Trustee,
on behalf of, and upon notice from, any Holder, to any one or more
transferees or distributees of all or part of such Holder's Registrable
Securities. A holder of Registrable Securities shall be permitted, in
connection with a transfer or disposition of Registrable Securities, to
impose conditions or constraints on the ability of the transferee, as a
holder of Registrable Securities, to request a registration pursuant to
Section 3.1 and shall provide the Company with copies of such conditions or
constraints and the identity of such transferees.
9. Remedies. The Trustee, on behalf of each holder of Registrable
Securities, in addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate. In any action or
proceeding brought to enforce any provision of this Agreement (including
the indemnification provisions thereof), the successful party shall be
entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
10. No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Trustee on
behalf of the holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. Except as set forth on
Exhibit A hereto and except for the registration rights granted in
connection with the Note Purchase Agreement pursuant to the Registration
Rights Agreement dated as of September 30, 1998 by and between the
purchasers listed on Exhibit A thereto and the Company, the Company has not
previously entered into any agreement with respect to its securities
granting any registration rights to any Person other than the registration
rights granted pursuant to this Agreement. Except as set forth on Exhibit B
hereto, the rights granted to the Trustee on behalf of the holders of
Registrable Securities hereunder do not in any way conflict with and are
not inconsistent with any other agreements to which the Company is a party
or by which it is bound. The Company further agrees that if any other
registration rights agreement entered into after the date of this Agreement
with respect to any of its securities contains terms which are more
favorable to, or less restrictive on, the other party thereto than the
terms and conditions contained in this Agreement are (insofar as they are
applicable) to the holders of the Exchange Notes, then the terms and
conditions of this Agreement shall immediately be deemed to have been
amended without further action by the Company or any of the holders of
Registrable Securities so that such holders shall be entitled to the
benefit of any such more favorable or less restrictive terms or conditions.
11. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only
and shall not limit or otherwise affect the meaning hereof.
12. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of New
York, without regard to the conflicts of laws principles thereof. Each of
the parties hereto hereby irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the courts of the State of New York
and the United States of America located in New York, New York for any
action or proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any action or
proceeding relating thereto except in such courts). Each of the parties
hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action or proceeding arising out of this Agreement
or the transactions contemplated hereby in the courts of the State of New
York or the United States of America located in New York, New York, and
hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action or proceeding brought
in any such court has been brought in an inconvenient forum. The Company
hereby waives any right it may have to a trial by jury in respect of any
action, proceeding or litigation directly or indirectly arising out of,
under or in connection with, this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
INAMED CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman & CEO
SANTA XXXXXXX BANK & TRUST
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Senior Vice President
Exhibit A
Other Registration Rights Agreements
1. Registration Rights for Holders of New Notes
2. Registration Rights for Holders of Exchange Notes
3. Registration Rights for Holders of Old Notes
4. Registration Rights for Holders of New Warrants
5. Registration Rights for Holders of Additional Warrants
6. Registration Rights for Holders of Exchange Warrants
7. Registration Rights under the terms of the Employment Agreement of
Xxxx X. Xxxxx
8. Registration Rights under the terms of the Employment Agreement of
Xxxxxxx X. Xxxxxxx
9. Registration Rights Agreement in connection with 4% Convertible
Debentures
Exhibit B
Conflicts
1. Registration Rights Agreement, dated as of ____________, 19__ between
the Company and the holders of the Company's 4.00% Convertible
Debentures due January 16, 2000.
