REGISTRATION RIGHTS AGREEMENT
EXHIBIT 10.1
This REGISTRATION RIGHTS AGREEMENT, dated as of April 11, 2011 (this “Agreement”), is
made between Primo Water Corporation, a Delaware corporation (the “Company”), and Omnifrio
Beverage Company, LLC, an Ohio limited liability company (“Omnifrio”). Certain capitalized
terms used in this Agreement are defined in Section 7. All other capitalized terms used in this
Agreement without definition shall have the meanings ascribed to such terms in the Purchase
Agreement (as defined below).
A. On March 8, 2011, Primo Products, LLC, a North Carolina limited liability company and a
wholly-owned subsidiary of Company (“Primo Products”), the Company, Omnifrio and certain
members of Omnifrio (“Members”) entered into an Asset Purchase Agreement (the “Purchase
Agreement”) pursuant to which Primo Products is acquiring certain assets in exchange for cash
and Registrable Securities, all as more fully described in the Purchase Agreement.
B. Simultaneously herewith, Omnifrio is entering into a Lock-Up Agreement, restricting the
resale of Registrable Securities as therein provided.
C. As a condition to the execution of the Purchase Agreement and the Closing thereunder,
Omnifrio requires that this Agreement be executed by the parties and delivered to Omnifrio.
Now, therefore, the parties hereto agree as follows:
1. Registration of Registrable Securities.
(a) Registration. The Company will use its commercially reasonable efforts to
register, in accordance with the provisions of this Agreement, all the Registrable Securities and
to have the Registration Statement declared effective within 181 days of the Closing Date. The
Company will pay all Registration Expenses incurred in connection with the Registration.
(b) Postponement of Registration or Use of Registration Statement. The Company may
postpone for a reasonable period of time, not to exceed 30 days each time it exercises its rights
under this clause (b), (i) the filing of a prospectus or the effectiveness of the Registration
Statement or (ii) Omnifrio’s use of and ability to make sales pursuant to the Registration
Statement, if, in either such case, the Company furnishes to Omnifrio a certificate signed by the
Chief Executive Officer of the Company stating that the Company believes that either the
Registration or Omnifrio’s use of or making sales pursuant to the Registration Statement would be
reasonably likely to have a material adverse effect on any proposal or plan by the Company to
engage in any acquisition of stock or assets (other than in the ordinary course of business) or any
merger, amalgamation, consolidation, tender offer or similar transaction, or otherwise would
require disclosure of material nonpublic information that would not be in the best interests of the
Company and its shareholders; provided that the Company may not effect such a postponement
more than two times in any 12-month period. If the Company so postpones the filing of a prospectus
or the effectiveness of the Registration Statement, the Company will pay all Registration Expenses
incurred in connection with any such postponement.
2. Registration Procedures. The Company will use its commercially reasonable efforts
to effect the registration and sale of the Registrable Securities in accordance with Omnifrio’s
intended method of disposition thereof. Without limiting the generality of the foregoing, the
Company will:
(a) prepare and file the Registration Statement with the Commission, make all required filings
with FINRA and thereafter use its commercially reasonable efforts to cause the Registration
Statement to become effective within 181 days after the Closing Date; provided that (i)
before filing the Registration Statement or any amendments or supplements thereto, the Company will
furnish to one firm of counsel selected by Omnifrio copies of all such documents proposed to be
filed; and (ii) at the Company’s election, the Registrable Securities may be included in any
Registration Statement filed by the Company to register shares owned by it or any other
stockholder;
(b) prepare and file with the Commission such amendments and supplements to the Registration
Statement and such free writing prospectuses under Rule 433 (each, a “Free Writing
Prospectus”) as may be necessary to keep the Registration Statement effective until the
earliest of (i) three years from the Closing Date, (ii) such time as all of the
Registrable Securities held by Omnifrio at such time could be sold without restriction in a single
transaction under Rule 144, and (iii) such time as all of the Registrable Securities have
been disposed of by Omnifrio in accordance with the intended methods of disposition set forth in
the Registration Statement (but in any event not before the expiration of any longer period
required under the Securities Act); provided that, at any time after the Company becomes
eligible to register its common stock on Form S-3, the Company may, if the Company so chooses,
convert the then effective Registration Statement into a shelf Registration Statement on Form S-3
so as to enable Omnifrio to sell its common stock pursuant thereto from time to time in accordance
with Rule 415;
(c) comply with the provisions of the Securities Act with respect to the disposition of the
Registrable Securities until such time as all of the Registrable Securities have been disposed of
by Omnifrio in accordance with the intended methods of disposition set forth in such Registration
Statement;
(d) furnish to Omnifrio such number of copies, without charge, of the Registration Statement,
each amendment and supplement thereto, including each preliminary prospectus, final prospectus, any
Free Writing Prospectus, all exhibits and other documents filed therewith and such other documents
as Omnifrio may reasonably request in order to facilitate the disposition of the Registrable
Securities;
(e) use its commercially reasonable efforts to register or qualify the Registrable Securities
under such other securities or blue sky laws of such United States jurisdictions as Omnifrio
reasonably requests and do any and all other acts and things that may be reasonably necessary or
reasonably advisable to enable Omnifrio to consummate the disposition in such jurisdictions of the
Registrable Securities; provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction
or (iii) consent to general service of process in any such jurisdiction;
(f) use its commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other United States governmental agencies, authorities or
self-regulatory bodies as may be necessary or reasonably advisable in light of the business and
operations of the Company to enable Omnifrio to consummate the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition thereof;
(g) promptly notify Omnifrio, at any time when a prospectus relating to the Registration
Statement is required to be delivered under the Securities Act, upon discovery that, or upon the
discovery of the happening of any event as a result of which, the prospectus contains an untrue
statement of a material fact or omits any fact necessary to make the statements therein not
misleading in the light of the circumstances under which they were made, and, as promptly as
practicable but subject to Section 1(b) hereof, prepare and furnish to Omnifrio a reasonable number
of copies of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
2
(h) promptly notify Omnifrio (i) when the prospectus or any prospectus supplement or
post-effective amendment or any Free Writing Prospectus has been filed and, with respect to the
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 the Registration
Statement or to amend or to supplement such prospectus or for additional information, and
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for any of such purposes;
(i) use its commercially reasonable efforts to cause the Registrable Securities to be listed,
within 181 days after the Closing Date, on each securities exchange or automated quotation system
on which shares of its common stock are then listed;
(j) provide a transfer agent and registrar for the Registrable Securities not later than the
effective date of, or date of the final receipt issued for, the Registration Statement;
(k) enter into such customary agreements on terms reasonably satisfactory to the Company and
take all such other actions as Omnifrio reasonably requests in order to facilitate the disposition
of the Registrable Securities;
(l) otherwise use its commercially reasonable efforts to 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 day of the Company’s first full calendar quarter after the effective date of the Registration
Statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder;
(m) in the event of the issuance of any stop order suspending the effectiveness of the
Registration Statement, or of any order suspending or preventing the use of any related prospectus
or ceasing trading of any securities included in the Registration Statement for sale in any
jurisdiction, subject to Section 1(b) hereof, use its commercially reasonable efforts promptly to
obtain the withdrawal of such order; and
(n) use its commercially reasonable efforts to take or cause to be taken all other actions,
and do and cause to be done all other things, necessary or reasonably advisable in the opinion of
Omnifrio to effect the registration of the Registrable Securities contemplated hereby.
The Company may require Omnifrio to furnish the Company with such information regarding Omnifrio
and pertinent to the disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request in writing.
3. Shelf Take-Downs. At any time after the Registration Statement is converted into a
shelf Registration Statement pursuant to the proviso in Section 2(b), if Omnifrio delivers a notice
to the Company (a “Take-Down Notice”) stating that it intends to effect a disposition of
all or part of the Registrable Securities (a “Shelf Disposition”) and stating the number of
the Registrable Securities to be included in the Shelf Disposition, then the Company shall amend or
supplement the shelf Registration Statement or related prospectus as may be necessary in order to
enable such Registrable Securities to be
disposed of pursuant to the Shelf Disposition, provided that Omnifrio shall not be
entitled to deliver (i) an aggregate of more than three Take-Down Notices in any twelve
month period, (ii) any Take-Down Notice within 30 days after the effective date of any
registration statement of the Company hereunder, or (iii) any Take-Down Notice unless it
relates to the anticipated sale of Registrable Securities with a market value of at least $5.0
million (based upon the market value of the Company’s common stock on the date of the delivery of
such Take-Down Notice).
3
4. Registration Expenses. All expenses incidental to the Company’s performance of or
compliance with this Agreement, including, without limitation, all registration and filing fees,
fees and expenses of compliance with United States securities or blue sky laws, word processing,
duplicating and printing expenses, messenger and delivery expenses, and fees and disbursements of
counsel for the Company and all independent certified public accountants and other Persons retained
by the Company in accordance with this Agreement, and all of the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit or quarterly review, the expenses of
any liability insurance and the expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the Company are then listed or on
the NASDAQ (all such expenses, “Registration Expenses”), will be borne by the Company;
provided that (i) all Selling Expenses and (ii) fees and disbursements of counsel for
Omnifrio will be borne by Omnifrio.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless, and hereby does indemnify and hold
harmless, Omnifrio, its affiliates and their respective officers, directors, members, managers and
partners and each Person who directly or indirectly controls Omnifrio (within the meaning of the
Securities Act) (each, a “Omnifrio Indemnitee”) against, and pay and reimburse such
Omnifrio Indemnitee for any losses, claims, damages, liabilities, joint or several, or actions or
proceedings, whether commenced or threatened, in respect thereof, (collectively, “Losses”)
to which such Omnifrio Indemnitee may become subject under the Securities Act or otherwise, insofar
as such Losses arise out of or are based upon (i) any untrue or alleged untrue statement of
material fact contained in any Registration Statement, prospectus, preliminary prospectus or Free
Writing Prospectus or any amendment thereof or supplement thereto, (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any violation by the Company of any rule or
regulation promulgated under the Securities Act or any state securities laws applicable to the
Company and relating to action or inaction required of the Company in connection with the
Registration, and the Company will pay and reimburse each such Omnifrio Indemnitee for any legal or
any other expenses actually and reasonably incurred by them in connection with investigating,
defending or settling any such Losses, provided that the Company will not be liable in any
such case to the extent that any such Losses or expenses arise out of (i) or are based upon an
untrue statement or alleged untrue statement, or omission or alleged omission, made in such
Registration Statement, any such prospectus, preliminary prospectus or Free Writing Prospectus or
any amendment or supplement thereto, or in any application, in reliance upon, and in conformity
with, written information prepared and furnished to the Company by Omnifrio expressly for use
therein or (ii) facts or circumstances that resulted in a breach of any representation or warranty
of Omnifrio or the Members in the Purchase Agreement or any document or certificate delivered
pursuant thereto (without regard to any baskets, caps, survival periods or other limitations on the
Company’s (or its subsidiaries’) ability to make an indemnification claim with respect to any such
breach under the Purchase Agreement.
4
(b) Omnifrio will furnish to the Company in writing such information with respect to itself
and the Members as the Company reasonably requests for use in connection with any such Registration
Statement or prospectus and will indemnify and hold harmless the Company, its directors
and officers, and each other Person who controls the Company (within the meaning of the
Securities Act but excluding any Omnifrio Indemnitee to the extent it may be deemed to control the
Company) (each, a “Company Indemnitee”) against any Losses to which any such Company
Indemnitee may become subject under the Securities Act or otherwise, insofar as such Losses arise
out of or are based upon (i) any untrue or alleged untrue statement of material fact
contained in the Registration Statement, prospectus, preliminary prospectus or Free Writing
Prospectus or any amendment thereof or supplement thereto or in any application or (ii) any
omission or alleged omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but, in each case, only to the extent that such untrue
statement or omission is made in such Registration Statement, any such prospectus, preliminary
prospectus or Free Writing Prospectus or any amendment or supplement thereto, or in any
application, in reliance upon and in conformity with written information prepared and furnished to
the Company by Omnifrio or any Member expressly for use therein, and Omnifrio will reimburse the
Company and each such Company Indemnitee for any legal or any other expenses actually and
reasonably incurred by it in connection with investigating, defending or settling any such Loss;
provided that the obligation to indemnify and hold harmless will be limited in the
aggregate to the net amount of proceeds received by Omnifrio from the sale of Registrable
Securities pursuant to the Registration Statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks indemnification and
(ii) unless in such indemnified party’s reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying party with respect to such claim (to
the extent such fees and expenses are otherwise indemnifiable hereunder), unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such indemnified party
and any other of such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the registration and sale
of any securities by any Person entitled to any indemnification hereunder and the expiration or
termination of this Agreement.
(e) If the indemnification provided for in this Section 5 is unavailable or insufficient for
any reason whatsoever to hold harmless an indemnified party with respect to any Losses or expenses
referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, will contribute to the amount paid or payable by such indemnified party as a result of
such Losses or expenses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such loss, liability, claim, damage or expense
as well as any other relevant equitable considerations. The relevant fault of the indemnifying
party and the indemnified party will be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the foregoing, the amount Omnifrio will be obligated to
contribute pursuant to this Section 5(e) will be limited to the net amount of proceeds received by
Omnifrio from the sale of Registrable Securities pursuant to the Registration
Statement (less the aggregate amount of any damages which Omnifrio has otherwise been required
to pay in respect of such Losses or any substantially similar Losses arising from the sale of such
Registrable Securities).
5
6. Term. This Agreement will be effective as of the Closing Date and will continue in
effect, subject to the terms of Section 5, thereafter until the earliest of (a) its
termination by the consent of the parties hereto or their respective successors in interest,
(b) the date on which the Company is no longer required to keep the Registration Statement
effective pursuant to Section 2(b) and (c) the dissolution, liquidation or winding up of
the Company.
7. Defined Terms. Capitalized terms when used in this Agreement have the following
meanings:
“Commission” means the Securities and Exchange Commission or any other federal
agency administering the Securities Act.
“Closing” has the meaning given to such term in the Purchase Agreement.
“Closing Date” has the meaning given to such term in the Purchase Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar
federal statute and the rules and regulations thereunder, as in effect from time to time.
“Lock-Up Agreement” has the meaning given to such term in the Purchase Agreement.
“Person” means an individual, a partnership, a joint venture, a corporation, a
limited liability company, a trust, an unincorporated organization or a government or
department or agency thereof.
“Registrable Securities” means (i) any equity securities of the Company
issued to Omnifrio as consideration under the Purchase Agreement, and (ii) any
equity securities issued or issuable directly or indirectly with respect to the securities
referred to in the foregoing clause (i) by way of conversion or exchange thereof or
share dividend or share split or in connection with a combination of shares,
recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or
other reorganization. As to any particular securities constituting Registrable Securities,
such securities will cease to be Registrable Securities when (x) they have been
effectively registered or qualified for sale by prospectus filed under the Securities Act
and disposed of in accordance with the Registration Statement, or (y) they are no
longer owned by Omnifrio.
“Register,” “registered” and “registration” refers to a registration
effected by preparing and filing a Registration Statement in compliance with the Securities
Act, and the declaration or ordering of the effectiveness of such Registration Statement,
and compliance with applicable state securities laws of such states in which Omnifrio
notifies the Company of its intention to offer Registrable Securities.
“Registration” means the registration of Registrable Securities required by Section
1.
“Registration Expenses” has the meaning set forth in Section 4(a).
“Registration Statement” means the prospectus and other documents filed with the
Commission to effect the Registration under the Securities Act.
6
“Rule 144” means Rule 144 under the Securities Act or any successor or similar rule
as may be enacted by the Commission from time to time, as in effect from time to time.
“Rule 415” means Rule 415 under the Securities Act or any successor or similar rule
as may be enacted by the Commission from time to time, as in effect from time to time.
“Securities Act” means the Securities Act of 1933, as amended, or any similar
federal statute and the rules and regulations thereunder, as in effect from time to time.
“Selling Expenses” means all underwriting discounts, selling commissions and
transfer taxes applicable to the sale of Registrable Securities hereunder.
“Shelf Disposition” has the meaning set forth in Section 3.
“Take-Down Notice” has the meaning set forth in Section 3.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to its securities which is inconsistent with or violates the rights granted
to Omnifrio in this Agreement.
(b) Remedies. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that any party hereto
will have the right to injunctive relief, in addition to all of its other rights and remedies at
law or in equity, to enforce the provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the provisions of
this Agreement may be amended or waived only upon the prior written consent of the parties hereto.
(d) Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, no transferee or assignee of Omnifrio shall be entitled to have
shares of Company common stock held by it included in the Registration Statement.
(e) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or the effectiveness or validity of any provision in any other
jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been contained herein.
(f) Counterparts. This Agreement may be executed simultaneously in two counterparts,
any one of which need not contain the signatures of more than one party, but all such counterparts
taken together will constitute one and the same Agreement.
7
(g) Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(h) Governing Law. This Agreement and the rights and duties of the parties hereto
hereunder shall be governed by and construed in accordance with laws of the State of New York,
without giving effect to its principles or rules of conflict of laws to the extent such principles
or rules are not mandatorily applicable by statute and would require or permit the application of
the laws of another jurisdiction.
(i) Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement will be in writing and will be deemed to
have been given when personally delivered or received by certified mail, return receipt requested,
or sent by guaranteed overnight courier service. Such notices, demands and other communications
will be sent to the Company and Omnifrio in the manner and at the addresses set forth in the
Purchase Agreement.
[the remainder of this page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| PRIMO WATER CORPORATION |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| OMNIFRIO BEVERAGE COMPANY, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxx | |||
| Title: | Manager | |||
