|
EXHIBIT
99.1
AGREEMENT
THIS AGREEMENT (
“AGREEMENT”), dated as of December 4, 2007, is
entered into by and between Advanced Medical Optics, Inc., a
Delaware corporation (the “Company”), ValueAct Capital
Master Fund, L.P. (“ValueAct Master Fund”), ValueAct
Capital Master Fund III, L.P. (“ValueAct Master Fund
III”), VA Partners I, LLC (“VA Partners”), VA
Partners III, LLC (“VA Partners III”), ValueAct Capital
Management, L.P. (“ValueAct Management L.P.”), ValueAct
Capital Management, LLC (“ValueAct Management LLC”),
ValueAct Holdings, L.P. (“VA Holdings”) and ValueAct
Holdings GP, LLC (“VA Holdings GP”) Jeffrey W. Ubben,
George F. Hamel, Jr., Peter H. Kamin, G. Mason Morfit, Todd
Bourell, Gregory P. Spivy, Kelly Barlow, Allison Bennington, Briana
Curran and Ronald Yee (collectively, the “ValueAct
Partners”) and together with ValueAct Master Fund, ValueAct
Master Fund III, VA Partners, VA Partners III, ValueAct Management
L.P., ValueAct Management LLC, VA Holdings and VA Holdings GP, and
the ValueAct Partners, the “Stockholders”).
W I T N E S S E T
H:
WHEREAS, one or more of the
Stockholders is the beneficial owner of 8,811,635 shares (the
“Shares”) of common stock of the Company (the
“Common Stock”), which represents approximately 14.7%
of the outstanding shares of Common Stock; and
WHEREAS, the Company and the
Stockholders desire to undertake the actions and agreements
contained herein.
NOW, THEREFORE, in
consideration of the foregoing and the mutual promises,
representations, warranties, respective covenants and agreements of
the parties contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto, the parties hereto,
intending to be legally bound hereby, agree as follows:
ARTICLE I
BOARD OF
DIRECTORS
Section 1.1 DIRECTOR
NOMINEE . Having completed the review process of the
Organization, Compensation and Corporate Governance Committee (the
“Committee”) of the Company’s board of directors
(the “Board”), the Board shall take action promptly to
increase the size of the Board and fill such vacancy with G. Mason
Morfit. Mr. Morfit shall be serve as a Class I Director (up
for re-election in 2009), shall be appointed as a member of the
Science and Technology Committee of the Board.
Section 1.2 ADDITIONAL
DIRECTOR . The parties hereto acknowledge that, as soon as
reasonably practicable, the Board intends to appoint one director
in addition to Mr. Morfit.
1
ARTICLE II
REPRESENTATIONS AND
WARRANTIES
Section 2.1
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS . The
Stockholders represent and warrant to the Company that (i) one
or more of the Stockholders is the record and direct or indirect
beneficial owner of the Shares, (ii) each of the Stockholders,
other than the ValueAct Partners, is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and has all requisite power and authority to execute
and deliver this Agreement, (iii) this Agreement has been duly
executed and delivered by the Stockholders, and (iv) this
Agreement constitutes the valid and binding agreement of the
Stockholders, enforceable against the Stockholders in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, and similar laws
relating to or affecting creditors’ rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law), in each case now or hereafter in
effect.
Section 2.2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY . The Company
represents and warrants to the Stockholders that (i) the
Company is duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to execute and deliver this
Agreement, (ii) this Agreement has been duly executed and
delivered by the Company, and (iii) this Agreement constitutes
the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and similar laws relating to or affecting
creditors’ rights generally and general equitable principles
(whether considered in a proceeding in equity or at law), in each
case now or hereafter in effect. The Company further represents and
warrants to the Stockholders that the actions contemplated by
Sections 1.1 of this Agreement have been duly and validly
authorized by all necessary corporate action and expressly approved
by the Board.
ARTICLE III
COVENANTS
Section 3.1 COVENANTS OF
THE STOCKHOLDERS .
(a) Each of the Stockholders
agrees with the Company that, during the period commencing on the
date hereof and ending on the termination of this Agreement
pursuant to Article IV, at all meetings of stockholders of the
Company, and with respect to any consent solicitation, the
Stockholders shall (or shall cause its “Affiliates” (as
defined in Rule 12b-2 promulgated under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)) to vote, or
provide its consent with respect to, all of the shares of Common
Stock beneficially owned by the Stockholders for each of the
Company’s nominees for election to the Board at the 2008
Annual Meeting, and in other matters proposed by stockholders at
the 2008 Annual Meeting, in accordance with the recommendation of
the Board. Notwithstanding the foregoing, the Stockholders shall
have no restriction on voting with respect to matters (other than
the election of directors) submitted by the Board at the Annual
Meeting.
2
(b) Each of the Stockholders
agrees with the Company that, during the period commencing on the
date hereof and ending on the termination of this Agreement
pursuant to Article IV, each of the Stockholders will not, and will
cause each of its Affiliates not to:
(i) Solicit (as such term is
used in the proxy rules of the Securities and Exchange Commission)
proxies or consents, or participate in any manner in the
solicitation of proxies or consents, from the Company’s
stockholders to elect persons to the Board or to approve
stockholder proposals; provided, however, that nothing in this
Section 3.1(b) shall prohibit Mr. Morfit from soliciting
proxies or consents in his capacity as a director of the Company
for proposals or actions made at the direction of the
Board;
(ii) Make or be the proponent
of any stockholder proposal, whether pursuant to Rule 14a-8 of the
Exchange Act or otherwise;
(iii) Seek, alone or in
concert with others, to (1) call a meeting of stockholders,
(2) seek representation on the Board, except as set forth
herein, or (3) the removal of any member of the
Board;
(iv) Make any publicly
disclosed proposal relating to or publicly disclosed request that
the Board consider any of the matters set forth in (b) through
(j) of Item 4 of Schedule 13D of the Exchange Act;
or
(v) Request the Company or
any of its representatives, directly or indirectly, to release any
of the Stockholders from, amend or waive, or otherwise take any
action that is inconsistent with any provision of this
Agreement
(c) Mr.&nbs
|
