Exhibit 4.24


 


Execution copy


 


SUBSIDIARY GUARANTEE


 


THIS SUBSIDIARY GUARANTEE, dated as of January 29,
2010  (the “Subsidiary
Guarantee”) and granted by the companies listed on Annex A hereto,
together with each other Person which from time to time executes and delivers
an instrument of accession substantially in the form attached hereto as Annex B
(each a “Subsidiary Guarantor” and collectively, the “Subsidiary  Guarantors”),
to each of the purchasers set forth on Schedule A to the Note Purchase
Agreement (as defined below), as purchasers (herein, each, including its
respective successors and assigns duly registered in accordance with Section 14.1
of the Note Purchase Agreement referred to below, a “Noteholder”
and, together, the “Noteholders”)
of the U.S.$50,000,000 aggregate principal amount of 5.19% Series D Senior
Guaranteed Notes due 2017 (the “Series D
Notes”), U.S.$50,000,000 aggregate principal amount of 5.75% Series E
Senior Guaranteed Notes due 2020 (the “Series E
Notes”) and U.S.$75,000,000 aggregate principal amount of 5.39% Series F
Senior Guaranteed Notes due 2019 (the “Series F
Notes” and, together with the Series D Notes and the Series E
Notes, the “Notes”) of Luxottica
U.S. Holdings Corp., a corporation incorporated in Delaware (the “Company”), issued pursuant to the Note Purchase Agreement,
dated January 29, 2010 (herein, as the same may be supplemented or amended
from time to time, called the “Note Purchase Agreement”)
between the Company, the Parent and the Noteholders.  Capitalized terms used herein but not
otherwise defined herein shall have the meaning assigned thereto in the Note
Purchase Agreement.


 


W I T N E S S E T H :


 


WHEREAS, it is a condition precedent to the
Noteholders entering into the Note Purchase Agreement and purchasing the Notes
that each Subsidiary Guarantor executes this Subsidiary Guarantee; and


 


WHEREAS, each Subsidiary Guarantor will be receiving a
direct or indirect corporate benefit as a result of the issuance of the Notes
and the application of the proceeds thereof by the Company;


 


NOW, THEREFORE, in consideration of the premises, and
in order to induce the Noteholders to enter into the Note Purchase Agreement
and to purchase the Notes from the Company, each Subsidiary Guarantor agrees as
follows:


 


1.     GUARANTEE


 


1.1.   Obligations Guaranteed.


 


Each
Subsidiary Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to the Noteholders: (a) the full and prompt payment of
the principal of all of the Notes and of the interest thereon at the rate
therein stipulated (including interest
accruing or becoming owing both prior to and subsequent to the commencement of
any bankruptcy, reorganization or similar proceeding involving the Company or
such Subsidiary Guarantor) and the Make-Whole Amount, the Modified
Make-Whole Amount, Additional Amounts and all other amounts owing to the
Noteholders from time to time under the Notes and the Note Purchase Agreement
when and as the same 


 

















 


shall become due and payable, whether by lapse of
time, upon redemption or prepayment, by extension or by acceleration or
declaration, or otherwise, (b) the full and prompt performance and
observance by the Company of each and all of the covenants and agreements
required to be performed or observed by it under the terms of the Note Purchase
Agreement, and (c) payment, upon demand by any Noteholder, of all
costs and expenses, legal or otherwise (including reasonable attorneys’ fees)
and such expenses, if any, as shall have been expended or incurred in the
protection or enforcement of any right or privilege under the Note Purchase
Agreement or any of the other Financing Documents or in any consultation or
action in connection therewith, and in each and every case irrespective of the
validity, regularity or enforcement of any of the Notes, the Note Purchase
Agreement or any of the other Financing Documents or any of the terms thereof
or of any other like circumstance or circumstances (all of the obligations
described in the foregoing clause (a), clause (b) and clause (c) being
referred to herein as the “Guaranteed Obligations”).  The guaranty of the Notes herein provided for
is a guaranty of the immediate and timely payment of the principal, interest,
Make-Whole Amount or Modified Make-Whole Amount, if any, Additional Amounts and
all other amounts owing to the Noteholders from time to time under the Notes
and the Note Purchase Agreement when and as the same are due and payable and
shall not be deemed to be a guaranty only of the collectibility of such
payments and that in consequence thereof each Noteholder may sue any Subsidiary
Guarantor directly upon such principal, interest and other amounts becoming so
due and payable.


 


1.2.   Obligations Unconditional; Waivers.


 


(a)           The Guaranteed Obligations shall be absolute and
unconditional and shall remain in full force and effect until the entire
principal, interest and Make-Whole Amount or Modified Make-Whole Amount (if
any) on the Notes and all other sums due pursuant to the Note Purchase
Agreement and the Notes shall have been fully, finally and indefeasibly paid,
and such Guaranteed Obligations shall not be affected, modified or impaired
upon the happening from time to time of any event or condition, including,
without limitation, any of the following, whether or not with notice to or the
consent of any Subsidiary Guarantor:


 


(i)            the power or authority or the lack of power or
authority of the Company to issue the Notes or to execute and deliver the Note
Purchase Agreement, and irrespective of the validity of the Notes, the Note
Purchase Agreement or of any defense whatsoever that the Company may or might
have to the payment of the Notes (including, without limitation, principal,
interest and the Make-Whole Amount or Modified Make-Whole Amount, if any) or to
the performance or observance of any of the provisions or conditions of the
Note Purchase Agreement, or the existence or continuance of the Company as a
legal entity;


 


(ii)           any failure to present the Notes for payment or to
demand payment thereof, or to give any Subsidiary Guarantor or the Company
notice of dishonor for non-payment of the Notes, when and as the same may
become due and payable, or notice of any failure on the part of the Company to
do any act or thing or to perform or to keep


 

















 


any covenant or agreement to be done, kept or
performed under the terms of the Notes or the Note Purchase Agreement;


 


(iii)          the acceptance of any security or any guaranty, the
advance of additional money to the Company, any extension of the obligation of
the Notes, either indefinitely or for any period of time, or any other
modification in the obligation of the Notes or of the Note Purchase Agreement
or the Company thereon, or in connection therewith, or any sale, release,
substitution or exchange of any security;


 


(iv)          any act or failure to act with regard to the Notes or
the Note Purchase Agreement or anything which might vary the risk of any
Subsidiary Guarantor (including, without limitation, any release or
substitution of any one or more of the endorsers or guarantors of the
Guaranteed Obligations);


 


(v)           any action taken under the Note Purchase Agreement in
the exercise of any right or power thereby conferred or any failure or omission
on the part of any Noteholder to first enforce any right or security given
under the Note Purchase Agreement or any failure or omission on the part of any
Noteholder to first enforce any right against the Company, provided that
nothing in this Section shall entitle any Noteholder to recover twice any
sums claimed pursuant to this Subsidiary Guarantee;


 


(vi)          the waiver, compromise, settlement, release or
termination of any or all of the obligations, covenants or agreements of the
Company contained in the Note Purchase Agreement, or of the payment,
performance or observance thereof, provided that nothing in this Section shall
entitle any Noteholder to recover twice any sums claimed pursuant to this
Subsidiary Guarantee;


 


(vii)         the failure to give notice to the Company or any
Subsidiary Guarantor of the occurrence of any Default or Event of Default under
the terms and provisions of the Note Purchase Agreement;


 


(viii)        the extension of the time for payment of any principal
of, or interest (or Make-Whole Amount or Modified Make-Whole Amount or any
other amount, if any) on, any Note owing or payable on such Note or of the time
of or for performance of any obligations, covenants or agreements under or
arising out of the Note Purchase Agreement or the extension or the renewal of
any thereof;


 


(ix)           the modification or amendment (whether Material or
otherwise) of any obligation, covenant or agreement set forth in any Financing
Document;


 


(x)            any failure, omission, delay or lack on the part of
any Noteholder to enforce, assert or exercise any right, power or remedy 


 

















 


conferred on such Noteholder in the Note Purchase
Agreement, or any other act or acts on the part of the Noteholders;


 


(xi)           the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization or arrangement under bankruptcy or
similar laws, composition with creditors or readjustment of, or other similar
procedures affecting, any Subsidiary Guarantor or the Company or any of the
assets of any of them, or any allegation or contest of the validity of the Note
Purchase Agreement or the disaffirmance of the Note Purchase Agreement in any
such proceeding (it being understood that the obligations of each Subsidiary
Guarantor under this Subsidiary Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment made with respect to
the Notes is rescinded or must otherwise be restored or returned by any
Noteholder upon the insolvency, bankruptcy or reorganization of the Company or
such Subsidiary Guarantor, all as though such payment had not been made);


 


(xii)          any event or action that would, in the absence of this
clause, result in the release or discharge by operation of law of any
Subsidiary Guarantor from the performance or observance of any obligation,
covenant or agreement contained in this Subsidiary Guarantee;


 


(xiii)         the invalidity or unenforceability of any Financing
Document;


 


(xiv)        the invalidity or unenforceability of the obligations
of any Subsidiary Guarantor under this Subsidiary Guarantee, the absence of any
action to enforce such obligations of such Subsidiary Guarantor, any waiver or
consent by any Subsidiary Guarantor with respect to any of the provisions
hereof or any other circumstances which might otherwise constitute a discharge
or defense by such Subsidiary Guarantor, including, without limitation, any
failure or delay in the enforcement of the obligations of such Subsidiary
Guarantor with respect to this Subsidiary Guarantee or of notice thereof, or any
suit or other action brought by any shareholder or creditor of, or by, such
Subsidiary Guarantor or any other Person, for any reason, including, without
limitation, any suit or action in any way attacking or involving any issue,
matter or thing in respect of the Note Purchase Agreement, any other Financing
Document or any other agreement;


 


(xv)         the impossibility or illegality of performance on the
part of the Company or any other Person of its obligations under any Financing
Document or any other instruments;


 


(xvi)        in respect of the Company or any other Person, any
change of circumstances, whether or not foreseen or foreseeable, whether or not
imputable to the Company or any other Person, or other 


 

















 


impossibility of performance through fire, explosion, accident,
labor disturbance, floods, droughts, embargoes, wars (whether or not declared),
civil commotions, acts of God or the public enemy, delays or failure of
suppliers or carriers, inability to obtain materials, action of any regulatory
body or agency, change of law or any other causes affecting performance, or
other force majeure, whether or not beyond the control of the Company or any
other Person and whether or not of the kind hereinbefore specified;


 


(xvii)       any attachment, claim, demand, charge, lien, order,
process, encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the source, by
reason of any taxes, assessments, expenses, indebtedness, obligations or
liabilities of any character, foreseen or unforeseen, and whether or not valid,
incurred by or against any Person, or any claims, demands, charges or liens of
any nature, foreseen or unforeseen, incurred by any Person, or against any sums  payable under the Note Purchase Agreement, so that such
sums would be rendered inadequate or would be unavailable to make the payments
herein provided;


 


(xviii)      the failure of any Subsidiary Guarantor to receive any
benefit or consideration from or as a result of its execution, delivery and
performance of this Agreement;


 


(xix)         any sale, exchange, release or surrender of any
property at any time pledged or granted as security in respect of the
Guaranteed Obligations, whether so pledged or granted by any Subsidiary
Guarantor under any Financing Document; or


 


(xx)          any other circumstance which might otherwise
constitute a defense available to, or a discharge of, a Subsidiary Guarantor in
respect of the obligations of such Subsidiary Guarantor under this Subsidiary
Guarantee;


 


provided  that the specific enumeration of the above-mentioned
acts, failures or omissions shall not be deemed to exclude any other acts,
failures or omissions, though not specifically mentioned above, it being the
purpose and intent of this Subsidiary Guarantee that the obligations of any
Subsidiary Guarantor hereunder shall be absolute and unconditional to the
extent herein specified and shall not be discharged, impaired or varied except
by the full, final and indefeasible payment to the Noteholders of the principal
of, interest on and Make-Whole Amount, Modified Make-Whole Amount and
Additional Amounts owing under the Note Purchase Agreement and any other
amounts due in respect of the Notes, and then only to the extent of such
payments.  Without limiting any of the
other terms or provisions hereof, it is understood and agreed that in order to
hold any Subsidiary Guarantor liable hereunder, there shall be no obligation on
the part of any Noteholder to resort, in any manner or form, for payment, to
the Company, to any other Person or to the properties or estates of any of the
foregoing.  All rights of any Noteholder
pursuant to such Note and to this Subsidiary Guarantee shall be considered to
be transferred or assigned upon the transfer of such Note whether with or
without the consent of or 


 

















 


notice to any Subsidiary Guarantor or the
Company.  Without limiting the foregoing,
it is understood that repeated and successive demands may be made and
recoveries may be had hereunder as and when, from time to time, the Company
shall default under the terms of the Notes or the Note Purchase Agreement and
that notwithstanding recovery hereunder for or in respect of any given Default
or Event of Default, this Subsidiary Guarantee shall remain in full force and
effect and shall apply to each and every subsequent Default and Event of
Default.


 


(b)           Except as otherwise provided in this Subsidiary
Guarantee, to the fullest extent permitted by law, each Subsidiary Guarantor
does hereby expressly waive:


 


(i)            all of the matters specified in clause (a) of
this Section 1.2 and any notices in respect thereof;


 


(ii)           notice of acceptance of the Note Purchase Agreement;


 


(iii)          notice of any purchase or acceptance of the Notes
under the Note Purchase Agreement, or the creation, existence or acquisition of
any of the Guaranteed Obligations, subject to such Subsidiary Guarantor’s right
to make inquiry of each Noteholder to ascertain the amount of the Guaranteed
Obligations at any reasonable time;


 


(iv)          notice of the amount of the Guaranteed Obligations,
subject to such Subsidiary Guarantor’s right to make inquiry of each Noteholder
to ascertain the amount of the Guaranteed Obligations at any reasonable time;
and


 


(v)           any stay (except in connection with a pending appeal),
valuation, appraisal, redemption or extension law now or at any time hereafter
in force that, but for this waiver, might be applicable to any sale of property
of such Subsidiary Guarantor made under any judgment, order or decree based on
this Subsidiary Guarantee, and such Subsidiary Guarantor covenants that it will
not at any time insist upon or plead, or in any manner claim or take the
benefit or advantage of, any such law.


 


(c)           Each of the rights and remedies granted under this
Subsidiary Guarantee to each Noteholder in respect of the Notes held by such
Noteholder may be exercised by such Noteholder without notice to, or the
consent of or any other action by, any other Noteholder.  Each Noteholder may proceed to protect and
enforce this Subsidiary Guarantee by suit or suits or proceedings
in equity, at law or in bankruptcy, and whether for the specific performance of
any covenant or agreement contained herein or in execution or aid of any power
herein granted, or for the recovery of judgment for the obligations hereby
guaranteed or for the enforcement of any other proper legal or equitable remedy
available under applicable law.


 


(d)           If any Noteholder shall have instituted any proceeding
to enforce any right or remedy under this Subsidiary Guarantee or under any
Note held by such Noteholder and such proceeding shall have been 


 

















 


discontinued or abandoned for any reason, or shall
have been determined adversely to such Noteholder, then and in every such case
each such Noteholder and the Company shall, except as may be limited or
affected by any determination in such proceeding, be restored severally and
respectively to its respective former position hereunder and thereunder, and
thereafter the rights and remedies of each such Noteholder shall continue as
though no such proceeding had been instituted.


 


(e)           The obligations of any Subsidiary Guarantor under this
Subsidiary Guarantee shall not be discharged nor shall such Subsidiary
Guarantor’s liability be affected by any reduction occurring in, or any
arrangement being made relating to any of the Company’s liabilities to one or
more Noteholders as a result of any arrangement or composition made pursuant to
any provisions of any applicable bankruptcy or insolvency laws or any analogous
provision or made pursuant to any proceedings or actions whatsoever and whether
or not following the appointment of any administrator, administrative receiver,
trustee, liquidator, receiver or examiner or any similar officer to the Company
or over all or a substantial part of the Company, and such Subsidiary Guarantor
hereby agrees that the amount recoverable by any of the Noteholders from such
Subsidiary Guarantor hereunder will be and will continue to be the full amount
which would have been recoverable by such Noteholders from the Company in
respect of the Company’s liabilities hereunder and under the other Financing
Documents had no such arrangement or composition as aforesaid been entered
into.


 


2.     COLLECTION EXPENSES.


 


In the
event that a Subsidiary Guarantor shall be required to make any payment to any
Noteholder pursuant to the provisions of this Subsidiary Guarantee, it shall,
in addition to such payment, pay to such Noteholder such further amount as
shall be sufficient to cover the costs and expenses of collection, including,
without limitation, the reasonable costs and expenses of attorneys or financial
advisors incurred in connection with the evaluation and enforcement of any
rights hereunder or under the other provisions of the Note Purchase Agreement,
and any reasonable expenses or liabilities incurred by such Noteholder
hereunder and thereunder shall survive the payment of the Notes, provided that
such Subsidiary Guarantor shall not be required to pay any further amounts,
costs, expenses or liabilities than have otherwise been paid pursuant to the
terms of the Note Purchase Agreement or this Subsidiary Guarantee.


 


3.     SUBROGATION.


 


To the
extent of any payments made under this Subsidiary Guarantee, each Subsidiary
Guarantor shall be subrogated to the rights of any Noteholder receiving such
payments, but each Subsidiary Guarantor covenants and agrees that such right of
subrogation shall be subordinate in right of payment to the rights of any
Noteholders for which full payment has not been made or provided for and, to
that end, each Subsidiary Guarantor agrees not to claim or enforce any such
right of subrogation or any right of setoff or any other right which may arise
on account of any payment made by such Subsidiary Guarantor in accordance with
the provisions of this Subsidiary Guarantee unless and until all of the Notes
owned by Persons other than 


 

















 


the Subsidiary Guarantor and all other sums due or
payable under this Subsidiary Guarantee have been fully paid and discharged.


 


4.     REPRESENTATIONS AND WARRANTIES.


 


Each
Subsidiary Guarantor jointly and severally represents and warrants to each
Noteholder as of the date hereof as follows:


 


4.1.   Organization; Power and Authority.


 


It is
a company or corporation duly organized and validly existing under the laws of
its jurisdiction of formation, and is duly qualified as a foreign company or
corporation and is in good standing in each jurisdiction in which such
qualification is required by applicable law, other than those jurisdictions as
to which the failure to be so qualified or validly existing would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  It has the corporate
power and authority to own or hold under lease the properties it purports to
own or hold under lease, to transact the business it transacts, to execute and deliver
this Subsidiary Guarantee and to perform the provisions hereof.


 


4.2.   Authorization, etc.


 


This
Subsidiary Guarantee has been duly authorized by all necessary corporate
action, and constitutes a legal, valid and binding obligation of it enforceable
against it in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).


 


4.3.   Compliance with Laws, Other Instruments, etc.


 


The
execution, delivery and performance by such Subsidiary Guarantor of this
Subsidiary Guarantee will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of such Subsidiary Guarantor under, any indenture, mortgage, deed
of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which it is bound or by which
it or any of its properties may be bound or affected, (ii) conflict with
or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to such Subsidiary Guarantor or (iii) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to such Subsidiary Guarantor; except, in each case, any
such breach, default, conflict, violation or Lien that would not reasonably be
expected to have a Material Adverse Effect.


 


4.4.   Governmental Authorizations, etc.


 


No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by such Subsidiary Guarantor of this Subsidiary
Guarantee.


 

















 


4.5.   Solvency.


 


Each
Subsidiary Guarantor is, and upon execution and delivery of the Subsidiary
Guarantee or an Instrument of Accession, as the case may be, will be, a “solvent
institution”, as said term is used in section 1405(c) of the New York
State Insurance Law, whose “obligations are not in default as to principal or
interest”, as said terms are used in said section 1405(c).


 


5.     PREFERENCE; MARSHALING.


 


(a)           Each Subsidiary Guarantor agrees that, to the extent
the Company makes any payment on the Notes, which payment or any part thereof
is subsequently invalidated, voided, declared to be fraudulent or preferential,
set aside or is required to be repaid to a trustee, receiver or any other
Person under any bankruptcy code, common law or equitable cause, the obligation
or the part thereof intended to be satisfied shall be revived and continued in
full force and effect with respect to such Subsidiary Guarantor’s obligations
hereunder, as if said payment had not been made.  The liability of such Subsidiary Guarantor
hereunder shall not be reduced or discharged, in whole or in part, by any
payment to any Noteholder from any source that is thereafter paid, returned or
refunded in whole or in part by reason of the assertion of a claim of any kind
relating thereto, including, but not limited to, any claim for breach of
contract, breach of warranty, preference, illegality, invalidity or fraud
asserted by any account debtor or by any other Person.


 


(b)           None of the Noteholders shall be under any obligation (i) to
marshal any assets in favor of such Subsidiary Guarantor or in payment of any
or all of the liabilities of the Company under or in respect of the Notes or
the obligation of such Subsidiary Guarantor hereunder or (ii) to pursue
any other remedy that such Subsidiary Guarantor may or may not be able to
pursue itself and that may lighten such Subsidiary Guarantor’s burden, any
right to which such Subsidiary Guarantor hereby expressly waives.  The obligations of such Subsidiary Guarantor
under this Subsidiary Guarantee rank pari
passu in right of payment with all other Indebtedness for borrowed
money (actual or contingent) of such Subsidiary Guarantor which is not secured
or the subject of any statutory trust or preference or which is not expressly
subordinated in right of payment to any other debt.


 


6.     MAXIMUM GUARANTEED LIABILITY OF ITALIAN SUBSIDIARY GUARANTORS.


 


No
Subsidiary Guarantor that is organized under the laws of the Republic of Italy
shall be liable for any amounts in respect of any of the obligations guaranteed
under this Subsidiary Guarantee in excess of the aggregate of an amount equal
to the sum of 200% of the aggregate principal amount of the Notes, plus
interest (other than default interest, Make-Whole Amount, Modified Make-Whole
Amount or Additional Amount) accruing thereon.


 
















 


7.     ENTIRE AGREEMENT; WAIVERS.


 


Each
Subsidiary Guarantor hereby agrees that this instrument contains the entire
agreement between the parties and that there is and can be no other oral or
written agreement or understanding whereby the provisions of this instrument
have been or can be terminated, affected, varied, waived, amended or modified
in any manner, unless the same be set forth and consented to in writing by (i) all
of the registered Noteholders in the case of Sections 1, 7, 14 or 15 or (ii) Required
Holders in all other cases.


 


Any consent given pursuant to this Section 7 by a
Noteholder which has (i) transferred or agreed to transfer all or a
portion of its Notes to the Company, the Parent Guarantor, any Subsidiary
Guarantor or any Subsidiary and (ii) provided such consent as a condition
to such transfer, shall be valid and binding only upon such Noteholder.  Any amendment or waiver which becomes
effective only with such consent (and the consents of all other Noteholders
which were acquired under the same or similar conditions) shall be valid and
binding only upon such Noteholder.


 


8.     SUCCESSORS AND ASSIGNS.


 


In
respect of the obligations of the Company under the Notes, this Subsidiary
Guarantee shall be binding upon and inure to the benefit of the Noteholders
(and for this purpose each Subsidiary Guarantor may treat the Person in whose
name any Note is registered in the register maintained by the Company as the
owner and holder of such Note for all purposes whatsoever and the Subsidiary
Guarantor shall not be affected by notice to the contrary).  In respect of all other obligations of the
Company guaranteed by this Subsidiary Guarantee, this Subsidiary Guarantee
shall be binding upon and inure to the benefit of the respective successors and
assigns of any Subsidiary Guarantor and of any Noteholder.  This Subsidiary Guarantee shall, without
further consent of any Subsidiary Guarantor, pass to, and may be relied upon
and enforced by, any successor or assignee of any Noteholder and any transferee
or subsequent registered holder of any Note.


 


9.     JURISDICTION; SERVICE OF PROCESS.


 


Each
Subsidiary Guarantor represents and warrants that it is not entitled to
immunity from judicial proceedings and agrees that, if judicial proceedings are
brought by any Noteholder to enforce any right or remedy under this Subsidiary
Guarantee or under any Note, no immunity from such proceedings will be claimed
by or on behalf of such Subsidiary Guarantor or with respect to its
property.  With respect to any such suit,
action or proceeding which may be brought by any Noteholder, each Subsidiary
Guarantor hereby consents to submit to the non-exclusive jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Southern District of New York on the date of this Subsidiary
Guarantee and waives any objection which it may have to the venue of any such
suit, action or proceeding in any such court and any claim or defense of
inconvenient forum.  Each Subsidiary
Guarantor has delivered to you a true and correct copy of an instrument by
which each Subsidiary Guarantor has irrevocably appointed National Registered
Agents, Inc., with offices at 875 Avenue of the Americas, Suite 501,
New York, New York 10001, as its authorized agent upon which process may be
served in any such suit, action or proceeding and by which National 


 

















 


Registered Agents, Inc. has accepted such
appointment.  Each Subsidiary Guarantor
will take any and all action, including the execution and filing of all such
documents and instruments, as may be necessary to effect and continue the
appointment of such agent in full force and effect, or, if necessary, by reason
of any fact or condition relating to such agent, to replace such agent (but
only after having given notice thereof to each Noteholder).  Each Subsidiary Guarantor agrees that service
of process upon such agent and written notice of such service given to the
relevant Subsidiary Guarantor as provided in Section 10 shall be deemed in
every respect effective service of process upon such Subsidiary Guarantor, as
the case may be, in any such suit, action or proceeding in any such court.  In making the foregoing appointment and
submission to jurisdiction, each Subsidiary Guarantor expressly waives the
benefit of any contrary provisions of foreign law.  Nothing in this Section 9 shall affect
the right of any Noteholder to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against a Subsidiary
Guarantor in any court in which such Subsidiary Guarantor, as the case may be,
is subject to suit.


 


10.  NOTICES.


 


All
notices and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice
by a recognized overnight delivery service (charges prepaid), or (b) by a
recognized overnight delivery service (with charges prepaid).


 


Any
such notice must be sent:


 


(a)           if to a Noteholder or its nominee, to such Noteholder
or its nominee at the address specified for such communications in Schedule A
to the Note Purchase Agreement, or at such other address as such Noteholder or
its nominee shall have specified to the Company in writing, or


 


(b)           if to any Subsidiary Guarantor, to such Subsidiary
Guarantor at its address specified in Annex A, or at such other address as such
Subsidiary Guarantor shall have specified to each Noteholder in writing.


 


Notices
under this Section 10 will be deemed given only when actually received.


 


11.  GOVERNING LAW, ETC.


 


This
Subsidiary Guarantee shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of New
York excluding choice-of-law principles of the law of such State that would
permit the application of the laws of a jurisdiction other than such State.


 


12.  SUBROGATION.


 


Each
Subsidiary Guarantor, irrevocably, unconditionally, until the obligations
guaranteed hereunder shall have been indefeasibly paid in full or released,
hereby waives all rights any such Subsidiary Guarantor may have to be
subrogated to the rights of the Noteholders and all other remedies that any of
them may have against the Company, in respect of which any payment is made
hereunder.  If any amount shall 


 

















 


be paid to any Subsidiary Guarantor on account of any
such subrogation rights or other remedy, notwithstanding the waiver thereof,
such amount shall be received in trust for the benefit of the Noteholders and
shall forthwith be paid to such Noteholders to be credited and applied upon the
obligations guaranteed hereby, whether matured or unmatured, in accordance with
the terms hereof.  Each Subsidiary
Guarantor agrees that its respective obligations under this Section 12
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Company is rescinded or must be otherwise
restored by any Noteholder, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as though such amount had not
been paid.


 


13.  NO WAIVER.


 


No delay
on the part of any Noteholder in exercising any rights hereunder or failure to
exercise the same shall operate as a waiver of such rights; no notice to or
demand on any Subsidiary Guarantor shall be deemed to be a waiver of the
obligation of such Subsidiary Guarantor or of the rights of any Noteholder to
take further action without notice or demand as provided herein.


 


14.  WITHHOLDING TAXES.


 


All
payments by any Subsidiary Guarantor under this Subsidiary Guarantee will be
made by such Subsidiary Guarantor in the lawful currency of the United States
of America free and clear of, and without liability for withholding or
deduction for or on account of, any present or future Taxes of whatever nature
imposed or levied by or on behalf of any jurisdiction other than the United
States (or any political subdivision or taxing authority of or in such
jurisdiction) (hereinafter a “Taxing Jurisdiction”),
unless the withholding or deduction of such Tax is compelled by law.


 


If any
deduction or withholding for any Tax of a Taxing Jurisdiction shall at any time
be required in respect of any amounts to be paid by any Subsidiary Guarantor
under this Subsidiary Guarantee, such Subsidiary Guarantor will pay to the
relevant Taxing Jurisdiction the full amount required to be withheld, deducted
or otherwise paid before penalties attach thereto or interest accrues thereon
and pay to each Noteholder such additional amounts as may be necessary in order
that the net amounts paid to such Noteholder pursuant to the terms of this Subsidiary
Guarantee after such deduction, withholding or payment (including without
limitation any required deduction or withholding of Tax on or with respect to
such additional amount) (the “Additional Amounts”)
shall be not less than the amounts then due and payable to such Noteholder
under the terms of this Subsidiary Guarantee before the assessment of such Tax,
provided that no payment of any Additional Amounts shall be required to
be made for or on account of:


 


(a)           any Tax that would not have been imposed but for the
existence of any present or former connection between such Noteholder (or a
fiduciary, settler, beneficiary, member of, shareholder of, or possessor of a
power over, such Noteholder, if such Noteholder is an estate, trust,
partnership or corporation or any Person other than the Noteholder to whom the
Notes or any amount payable thereon is attributable for the purposes of such
Tax) and the Taxing Jurisdiction, other than the mere holding of the relevant
Note or the receipt of payments thereunder or in respect thereof, including
without 


 

















 


limitation such Noteholder (or such other Person
described in the above parenthetical) being or having been a citizen or
resident thereof, or being or having been present or engaged in trade or
business therein or having or having had an establishment, office, fixed base
or branch therein, provided that this exclusion shall not apply with respect to
a Tax that would not have been imposed but for a Subsidary Guarantor, after the
date of the Closing, opening an office in, moving an office to, reincorporating
in, or changing the Taxing Jurisdiction from or through which payments on
account of this Subsidiary Guarantee are made to, the Taxing Jurisdiction
imposing the relevant Tax;


 


(b)           any Tax that would not have been imposed but for the
delay or failure by such Noteholder (following a written request by a
Subsidiary Guarantor) in the filing with the relevant Taxing Jurisdiction of
Forms (as defined below) that are required to be filed by such Noteholder to
avoid or reduce such Taxes (including for such purpose any refilings or
renewals of filings that may from time to time be required by the relevant
Taxing Jurisdiction), provided that the filing of such Forms would not (in such
Noteholder’s reasonable judgment) impose any unreasonable burden (in time,
resources or otherwise) on such Noteholder or result in any confidential or
proprietary income tax return information being revealed, either directly or
indirectly, to any Person and such delay or failure could have been lawfully
avoided by such Noteholder, and provided further that such Noteholder shall be
deemed to have satisfied the requirements of this clause (b) upon the good
faith completion and submission of such Forms (including refilings or renewals
of filings) as may be specified in a written request of such Subsidiary
Guarantor no later than 60 days after receipt by such Noteholder of such
written request (accompanied by copies of such Forms and related instructions,
if any, all in the English language or with an English translation thereof); or


 


(c)           any combination of clauses (a) and (b) above;


 


and provided further that in no event shall a Subsidiary Guarantor be
obligated to pay any Additional Amounts to any Noteholder (i) not resident
in the United States of America or any other jurisdiction in which an original
Purchaser is resident for tax purposes on the date of the Closing in excess of
the amounts that such Subsidiary Guarantor would be obligated to pay if such
Noteholder had been a resident of the United States of America or such other
jurisdiction, as applicable, for purposes of, and eligible for the benefits of,
any double taxation treaty from time to time in effect between the United
States of America or such other jurisdiction and the relevant Taxing Jurisdiction
or (ii) to any Noteholder registered in the name of a nominee if under the
law of the relevant Taxing Jurisdiction (or the current regulatory
interpretation of such law) securities held in the name of a nominee do not
qualify for an exemption from the relevant Tax and such Subsidiary Guarantor
shall have given timely notice of such law or interpretation to such
Noteholder.


 


By
acceptance of any Note, the Noteholder agrees, subject to the limitations of
clause (b) above,  that it will from
time to time with reasonable promptness (x) duly complete and deliver to
or as reasonably directed by a Subsidiary Guarantor all such forms,
certificates, documents and returns provided to such Noteholder by such 


 

















 


Subsidiary Guarantor (collectively, together with
instructions for completing the same, “Forms”)
required to be filed by or on behalf of such Noteholder in order to avoid or
reduce any such Tax pursuant to the provisions of an applicable statute,
regulation or administrative practice of the relevant Taxing Jurisdiction or of
a tax treaty between the United States and such Taxing Jurisdiction and (y) provide
any Subsidiary Guarantor with such information with respect to such Noteholder
as such Subsidiary Guarantor may reasonably request in order to complete any
such Forms; provided, that nothing in this Section 14 shall require any
Noteholder to provide information with respect to any such Form or
otherwise if in the opinion of such Noteholder such Form or disclosure of
information would involve the disclosure of tax return or other information
that is confidential or proprietary to such Noteholder, and provided further
that each such Noteholder shall be deemed to have complied with its obligation
under this paragraph with respect to any Form if such Form shall have
been duly completed and delivered by such Noteholder to such Subsidiary
Guarantor or mailed to the appropriate taxing authority (which in the case of a
United Kingdom Inland Revenue Form US-Company 2002 or any similar Form shall
be deemed to occur when such Form is submitted to the United States
Internal Revenue Service in accordance with instructions contained in such
Form), whichever is applicable, within 60 days following a written request of
such Subsidiary Guarantor (which request shall be accompanied by copies of such
Form and English translations of any such Form not in the English
language) and, in the case of a transfer of any Note, at least 90 days prior to
the relevant interest payment date.


 


On or
before the date of the Closing, each Subsidiary Guarantor will furnish each
Purchaser with copies of the appropriate Form (and English translation if
required as aforesaid) currently required to be filed pursuant to clause (b) of
the first paragraph of this Section 14, if any, and in connection with the
transfer of any Note each Subsidiary Guarantor will furnish the transferee of
such Note with copies of any Form and English translation then
required.  Such Form shall be
completed by the Purchaser and filed with the relevant financial intermediary
within 60 days following receipt of such Form and, in the case of a
transfer of any Note, at least 90 days prior to the relevant interest payment
date.


 


If any
payment is made by any Subsidiary Guarantor to or for the account of any
Noteholder after deduction for or on account of any Taxes, and increased
payments are made by any Subsidiary Guarantor pursuant to this Section 14,
then, if such Noteholder at its sole discretion determines that it has received
or been granted a refund of such Taxes, such Noteholder shall, to the extent
that it can do so without prejudice to the retention of the amount of such
refund, reimburse to such Subsidiary Guarantor such amount as such Noteholder
shall, in its sole discretion, determine to be attributable to the relevant
Taxes or deduction or withholding. 
Nothing herein contained shall interfere with the right of the
Noteholder of any Note to arrange its tax affairs in whatever manner it thinks
fit and, in particular, no Noteholder shall be under any obligation to claim
relief from its corporate profits or similar tax liability in respect of such
Tax in priority to any other claims, reliefs, credits or deductions available
to it or (other than as set forth in clause (b) above) oblige any
Noteholder to disclose any information relating to its tax affairs or any
computations in respect thereof.


 

















 


Each
Subsidiary Guarantor will furnish the Noteholders, promptly and in any event
within 60 days after the date of any payment by such Subsidiary Guarantor of
any Tax in respect of any amounts paid under this Subsidiary Guarantee, the
original tax receipt issued by the relevant taxation or other authorities
involved for all amounts paid as aforesaid (or if such original tax receipt is
not available or must legally be kept in the possession of such Subsidiary
Guarantor, a duly certified copy of the original tax receipt or any other
reasonably satisfactory evidence of payment), together with such other
documentary evidence with respect to such payments as may be reasonably requested
from time to time by any Noteholder.


 


If any
Subsidiary Guarantor is required by any applicable law, as modified by the
practice of the taxation or other authority of any relevant Taxing
Jurisdiction, to make any deduction or withholding of any Tax in respect of
which such Subsidiary Guarantor would be required to pay any Additional Amount
under this Section 14, but for any reason does not make such deduction or
withholding with the result that a liability in respect of such Tax is assessed
directly against any Noteholder, and such Noteholder pays such liability, then
such Subsidiary Guarantor will promptly reimburse such Noteholder for such
payment (including any related interest or penalties to the extent such
interest or penalties arise by virtue of a default or delay by such Subsidiary
Guarantor) upon demand by such Noteholder accompanied by an official receipt
(or a duly certified copy thereof) issued by the taxation or other authority of
the relevant Taxing Jurisdiction.


 


If any
Subsidiary Guarantor makes payment to or for the account of any Noteholder and
such Noteholder is entitled to a refund of the Tax to which such payment is
attributable upon the making of a filing (other than a Form described
above), then such Noteholder shall, as soon as practicable after receiving
written request from such Subsidiary Guarantor (which shall specify in
reasonable detail and supply the refund forms to be filed) use reasonable
efforts to complete and deliver such refund forms to or as directed by such
Subsidiary Guarantor, subject, however, to the same limitations with respect to
Forms as are set forth above.


 


The
obligations of each Subsidiary Guarantor under this Section 14 shall
survive the payment or transfer of any Note and the provisions of this Section 14
shall also apply to successive transferees of the Notes.


 


15.  JUDGMENT CURRENCY INDEMNITY.


 


Any
payment on account of an amount that is payable hereunder in Dollars which is
made to or for the account of any Noteholder in lawful currency of any other
jurisdiction (the “Other Currency”)
whether as a result of any judgment or order or the enforcement thereof or the
realization of any security or the liquidation of any Subsidiary Guarantor
shall constitute a discharge of such Subsidiary Guarantor’s obligation under
this Subsidiary Guarantee only to the extent of the amount of Dollars which
such Noteholder could purchase in the New York foreign exchange markets with
the amount of the Other Currency in accordance with normal banking procedures
at the rate of exchange prevailing on the first day (other than a Saturday) on
which banks in New York are generally open for business following receipt of
the payment first referred to above.  If
the amount of Dollars that could be so purchased on such date is less than the
amount of Dollars originally due to such Noteholder, such Subsidiary Guarantor
shall indemnify and save harmless such Noteholder from and 


 

















 


against all loss or damage arising out of or as a
result of such deficiency.  This
indemnity shall constitute an obligation separate and independent from the
other obligations contained in this Subsidiary Guarantee, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by any Noteholder from time to time and shall continue in
full force and effect notwithstanding any judgment or order for a liquidated
sum in respect of an amount due hereunder or under any judgment or order.


 


16.  TERMINATION OR RELEASE.


 


This
Subsidiary Guarantee and the guarantee made herein by each Subsidiary Guarantor
with respect to the Guaranteed Obligations shall terminate and each Subsidiary
Guarantor shall be automatically released from all such Guaranteed Obligations
hereunder upon the indefeasible full payment in cash and discharge of all
amounts payable under the Notes and all other amounts payable under the Note
Purchase Agreement and this Subsidiary Guarantee.


 


17.  HEADINGS.


 


The
descriptive headings of the several Sections of this Subsidiary Guarantee are
inserted for convenience only and do not constitute a part of this Subsidiary
Guarantee.


 


18.  COUNTERPARTS.


 


This
Subsidiary Guarantee may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument.  Each counterpart may consist
of a number of copies hereof, each signed by less than all, but together signed
by all, of the parties hereto.


 


19.  SURVIVAL OF REPRESENTATIONS AND
WARRANTIES.


 


All
representations and warranties contained herein or made in writing by or on
behalf of the Subsidiary Guarantors in connection herewith shall survive the
execution and delivery of the Notes and this Subsidiary Guarantee.


 


20.  SEVERABILITY.


 


Any
provision of this Subsidiary Guarantee that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.


 


21.  DEFINITIONS.


 


Capitalized
terms not otherwise defined herein shall have the meaning provided in the Note
Purchase Agreement.


 


[signature page follows]


 

















 


IN
WITNESS WHEREOF each Subsidiary Guarantor has caused this Subsidiary Guarantee
to be executed the day and year first above written.


 


 


	
   

  	
  LUXOTTICA S.r.l.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vito Giannola

  
	
   

  	
   

  
	
   

  	
  Name: Vito Giannola

  
	
   

  	
  Title: Special Authorized Signatory

  



 
















 


ANNEX A


to Subsidiary Guarantee


 


NAME AND ADDRESS OF SUBSIDIARY GUARANTOR


 


	
  Subsidiary
  Guarantor

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
  Luxottica S.r.l.

  	
   

  	
  Luxottica S.r.l.

  Via C. Cantù 2

  Milan 20123, ITALY

  Attn: Enrico Cavatorta

  



 

















 


ANNEX B


to Subsidiary Guarantee


 


FORM OF INSTRUMENT OF ACCESSION

TO SUBSIDIARY GUARANTEE


 


INSTRUMENT OF ACCESSION dated
                ,
          , made by [name of
new Subsidiary Guarantor], a company organized under the laws of
                    
(the “Acceding Subsidiary Guarantor”) in
respect of the Subsidiary Guarantee dated January 29, 2010 (the “Subsidiary Guarantee”) made from the Subsidiary Guarantors
set forth therein to the Noteholders (as defined therein). Capitalized terms
used herein without definition shall have the meanings assigned to such terms
in the Subsidiary Guarantee.


 


1.             Assumption. 
The Acceding Subsidiary Guarantor hereby expressly assumes and agrees,
with effect from and after the date hereof, to perform and observe each and
every one of the covenants, conditions, obligations, duties and liabilities
applicable to a “Subsidiary Guarantor” under the Subsidiary Guarantee, jointly
and severally with all other Subsidiary Guarantors under the Subsidiary
Guarantee, as if the Acceding Subsidiary Guarantor had been an original party thereto.  All references to any Subsidiary Guarantor in
the Note Purchase Agreement, the Notes, the Subsidiary Guarantee or any
document, instrument or agreement executed and delivered or furnished in
connection therewith shall be deemed to be and include references to the
Acceding Subsidiary Guarantor.


 


2.             Representations and Warranties.  The Acceding Subsidiary Guarantor jointly and
severally represents and warrants to each Noteholder as of the date hereof as
follows:


 


2.1          Organization; Power and Authority. 
It is a company or corporation duly organized and validly existing under
the laws of its jurisdiction of formation, and is duly qualified as a foreign
company or corporation and is in good standing in each jurisdiction in which
such qualification is required by applicable law, other than those
jurisdictions as to which the failure to be so qualified or validly existing
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.  It has the
corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts, to
execute and deliver this Instrument of Accession and the Subsidiary Guarantee
and to perform the provisions hereof.


 


2.2          Authorization, etc. This Instrument of Accession and the
Subsidiary Guarantee has been duly authorized by all necessary corporate
action, and constitutes a legal, valid and binding obligation of it enforceable
against it in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the 


 

















 


enforcement of creditors’
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).


 


2.3          Compliance with Laws, Other
Instruments, etc.
The execution, delivery and performance by such Acceding Subsidiary Guarantor
of this Instrument of Accession and the Subsidiary Guarantee will not (i) contravene,
result in any breach of, or constitute a default under, or result in the
creation of any Lien in respect of any property of such Acceding Subsidiary
Guarantor under, any indenture, mortgage, deed of trust, loan, purchase or
credit agreement, lease, corporate charter or by-laws, or any other Material
agreement or instrument to which it is bound or by which it or any of its
properties may be bound or affected, (ii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to such Acceding Subsidiary Guarantor or (iii) violate any provision of
any statute or other rule or regulation of any Governmental Authority
applicable to such Acceding Subsidiary Guarantor; except, in each case, any
such breach, default, conflict, violation or Lien that would not reasonably be
expected to have a Material Adverse Effect.


 


2.4          Governmental Authorizations, etc. 
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by such Acceding Subsidiary Guarantor of
this Instrument of Accession or the Subsidiary Guarantee, except for
information filings made with the SEC pursuant to the Exchange Act.


 


2.5          Solvency. 
The Acceding Subsidiary Guarantor is, and upon execution and delivery of
this Instrument of Accession and the Subsidiary Guarantee will be (a) Solvent
and (b) a “solvent institution”, as said term is used in section 1405(c) of
the New York State Insurance Law, whose “obligations are not in default as to
principal or interest”, as said terms are used in said section 1405(c).  As used herein, the term “Solvent” means,
with respect to the any Acceding Subsidiary Guarantor on a particular date,
that on such date (i) the fair market value of the assets of such entity
is greater than the total amount of liabilities (including contingent
liabilities) of the entity, (ii) the present fair saleable value of the
assets of such entity is greater than the sum of stated liabilities and
identified contingent liabilities, (iii) such entity is able to realize
upon its assets and pay its debts and other liabilities, including contingent
obligations, as they mature, (iv) such entity does not have unreasonably
small capital and (v) such entity is not unable to or has not been deemed
to be unable to pay its debts as they fall due.


 


2.6          Corporate Benefit. Having taken into account the financial
interdependence and mutual reliance between such Acceding Subsidiary Guarantor,
the Company and the Parent and its Subsidiaries, the continuing financial and
other assistance from time to time given by such Acceding Subsidiary Guarantor
to the Company 


 

















 


and the Parent and its
Subsidiaries, and vice versa, such Acceding Subsidiary Guarantor will derive
material benefits, directly or indirectly from the financing obtained through
the Notes, both as a separate corporate entity and as a member of the Group.


 


3.             Information.


 


Address:


 


Telephone:


 


Facsimile:


 


4.             Governing Law. 
This Instrument of Accession shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York.


 


IN
WITNESS WHEREOF, the Acceding Subsidiary Guarantor has caused this Instrument
of Accession to be duly executed and delivered as of the day and year first
above written.


 


 


	
  [ACCEDING SUBSIDIARY
  GUARANTOR]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: