REGISTRATION RIGHTS AGREEMENT
EXECUTION VERSION
This REGISTRATION RIGHTS AGREEMENT dated April 30, 2008 (the “Agreement”) is entered into by
and among Xx Xxxxxx Snapple Group, Inc., a Delaware corporation (the “Company”), X.X. Xxxxxx
Securities Inc. (“JPMorgan”), Banc of America Securities LLC (“BAS”), Xxxxxx Xxxxxxx & Co.
Incorporated (“Xxxxxx Xxxxxxx”), Xxxxxxx, Xxxxx & Co. (“GS”) and UBS Securities LLC (“UBS” and
together with JPMorgan, BAS, Xxxxxx Xxxxxxx and GS, the “Representatives”). Upon consummation of
the Separation Transaction (as defined below), each Guarantor (as defined below) will become party
to this Agreement by execution of a joinder agreement in the form attached hereto as Exhibit A
(“Registration Rights Joinder Agreement”).
The Company and the Representatives, on behalf of the initial purchasers thereunder (the
“Initial Purchasers”) are parties to the Purchase Agreement dated April 25, 2008 (the “Purchase
Agreement”), which provides for the sale by the Company to the Initial Purchasers of $250,000,000
principal amount of its 6.12% Senior Notes due 2013 (the “2013 Notes”), $1,200,000,000 principal
amount of its 6.82% Senior Notes due 2018 (the “2018 Notes”) and $250,000,000 principal amount of
its 7.45% Senior Notes due 2038 (the “2038 Notes” and together with the 2013 Notes and 2018 Notes,
the “Securities”). As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“2013 Notes” shall have the meaning set forth in the preamble.
“2018 Notes” shall have the meaning set forth in the preamble.
“2038 Notes” shall have the meaning set forth in the preamble.
“Agreement” shall have the meaning set forth in the preamble.
“BAS” shall have the meaning set forth in the preamble.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Cadbury” shall mean Cadbury Schweppes plc, a public limited company organized under the laws
of England and Wales.
“Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Escrow Agreement” shall mean the Escrow Deposit and Disbursement Agreement, dated April 30,
2008, by and between the Company and Xxxxx Fargo Bank, N.A., a national banking association, as
escrow agent and as trustee under the Indenture.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to
such registration statement, in each case including the Prospectus contained therein or deemed a
part thereof, all exhibits thereto and any document incorporated by reference therein.
“Exchange Securities” shall mean senior notes issued by the Company and guaranteed by the
Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities shall not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities
in exchange for Registrable Securities pursuant to the Exchange Offer.
“GS” shall have the meaning set forth in the preamble.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Company or
used or referred to by the Company in connection with the sale of the Securities or the
Exchange Securities.
“Guarantors” mean each Subsidiary that becomes a guarantor of the company’s payment
obligations on the Securities under the Indenture by execution of a supplemental indenture thereto.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes of Sections 4 and
6 of this Agreement, the term “Holders” shall include Participating Broker-Dealers.
“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture relating to the Securities dated April 30, 2008 among the
Company and Xxxxx Fargo Bank, N.A., as trustee and as the same may be amended and supplemented from
time to time in accordance with the terms thereof.
“Initial Purchasers” shall have the meaning assigned to it in the preamble.
“Inspector” shall have the meaning set forth in Section 3(a)(xiii) hereof.
“Issue Date” shall mean the date on which the Securities are originally issued.
“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.
“JPMorgan” shall have the meaning set forth in the preamble.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
the outstanding Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable
Securities owned directly or indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage or amount; and provided, further, that if the Company shall issue any additional
Securities under the Indenture prior to consummation of the Exchange Offer or, if applicable, the
effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable
Securities to which this
Agreement relates shall be treated together as one class for purposes of determining whether
the consent or approval of Holders of a specified percentage of Registrable Securities has been
obtained.
“Xxxxxx Xxxxxxx” shall have the meaning set forth in the preamble.
“Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations
of the Securities Act, deemed a part of, a Registration Statement, including any preliminary
prospectus, and any such prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and
supplements to such prospectus, and in each case including any document incorporated by reference
therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided that the Securities shall
cease to be Registrable Securities (i) when a Registration Statement with respect to such
Securities has become effective under the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement, (ii) on the date that is two years after the
later of the date hereof or the date of issuance of any securities of the same series as any of the
Securities, provided that any Security that is not eligible to be sold by the Holder
thereof on such date under Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act without being subject to any restrictions under such rule shall remain a
“Registrable Security” until such time as it is so eligible to be sold, or (iii) when such
Securities cease to be outstanding.
“Registration Actions” shall have the meaning set forth in Section 2(e) hereof.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including without limitation: (i)
all SEC, stock exchange or Financial Industry Regulatory Authority, Inc. registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any Exchange Securities
or Registrable Securities), (iii) all expenses of the Company and the Guarantors and their
respective subsidiaries in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or supplements thereto,
and any other documents relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees incurred by the Company (including with respect to maintaining ratings on the
Securities), (v) all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for the Company and the Guarantors and, in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Holders
(which counsel shall be selected by the Majority Holders and which counsel may also be counsel for
the Initial Purchasers), and (viii) the fees and disbursements of the independent public
accountants of the Company and the Guarantors, including the expenses of any special audits or
“comfort” letters required by or incident to the performance of and compliance with this Agreement,
but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set
forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
“Registration Default” shall have the meaning set forth in Section 2(e) hereof.
“Registration Rights Agreement Joinder” shall have the meaning set forth in the preamble.
“Registration Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the Prospectus contained therein or
deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Representatives” shall have the meaning set forth in the preamble.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” shall have the meaning set forth in the preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Separation Transaction” shall mean the distribution of all of the outstanding capital stock
of the Company to shareholders of Cadbury pursuant to a Separation and Distribution Agreement,
among the Company and Cadbury.
“Shelf Additional Interest Date” shall have the meaning set forth in Section 2(d) hereof.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and
the Guarantors that covers all or a portion of the Registrable Securities (but no other securities
unless approved by a majority of the Holders whose Registrable Securities are to be covered by such
Shelf Registration Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by
reference therein.
“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.
“Subsidiary Guarantees” shall mean the guarantees of the Securities and Exchange Securities by
the Guarantors under the Indenture.
“Staff” shall mean the staff of the SEC.
“Subsidiaries” means each subsidiary of the Company.
“Suspension Notice” shall have the meaning set forth in Section 2(e) hereof.
“Suspension Period” shall have the meaning set forth in Section 2(e) hereof.
“Target Registration Date” shall have the meaning set forth in Section 2(d) hereof.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited by any
applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall (i)
cause to be filed on or prior to 360 days after the Issue Date an Exchange Offer Registration
Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange
Securities and (ii) use commercially reasonable efforts to have such Registration Statement remain
effective until 180 days after the last Exchange Date for use by one or more Participating
Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after
the Exchange Offer Registration Statement is declared effective by the SEC and use commercially
reasonable efforts to issue on or prior to 390 days after the Issue Date, or longer if required by
the federal securities laws, Exchange Securities in exchange for all Registrable Securities
tendered prior thereto in the Exchange Offer.
The Company and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder
stating, in addition to such other disclosures as are required by applicable law, substantially the
following:
| (i) | that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn shall be accepted for exchange; | |
| (ii) | the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”); | |
| (iii) | that any Registrable Security not tendered shall remain outstanding and continue to accrue interest but shall not retain any rights under this Agreement, except as otherwise specified herein; | |
| (iv) | that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, |
| The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and | ||
| (v) | that any Holder shall be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. |
As a condition to participating in the Exchange Offer, a Holder shall be required to represent
to the Company and the Guarantors that (i) any Exchange Securities to be received by it shall be
acquired in the ordinary course of its business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of
the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule
405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other trading activities, then such
Holder shall deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus
to purchasers) in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
| (i) | accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and | |
| (ii) | deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. |
The Company and the Guarantors shall use commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does
not violate any applicable law or applicable interpretations of the Staff.
(b) In the event that (i) the Company and the Guarantors determine upon advice of counsel that
they are not permitted to consummate the Exchange Offer because the Exchange Offer is not permitted
by applicable law or SEC policy, (ii) the Exchange Offer is not consummated for any reason within
390 days from the Issue Date, (iii) prior to the 20th business day following the consummation of
the Exchange Offer (A) the Company receives a written request (a “Shelf Request”) from any Initial
Purchaser representing that it holds Registrable Securities that are or were ineligible to be
exchanged in the Exchange Offer, (B) any Holder (other than any Initial Purchaser) is not eligible
to participate in the Exchange Offer, or (C) any Initial Purchaser that participates in the
Exchange Offer or acquires Exchange Securities, such Initial Purchaser does not receive freely
tradable Exchange Securities in exchange for Securities constituting any portion of an unsold
allotment (clauses (i), (ii) and (iii) each constituting a “Shelf Registration Trigger Event”), the
Company and the Guarantors will use commercially reasonable efforts file a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the Holders thereof on or
prior to 90 days after such Shelf Registration Trigger Event and to cause such Shelf Registration
Statement to become effective on or prior to 90 days after filing such Shelf Registration
Statement, provided that the Company is under no obligation to file any such Shelf
Registration Statement before it is obligated to file an Exchange Offer Registration Statement
pursuant to paragraph 2(a) above.
In the event that the Company and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding paragraph, the Company and the Guarantors shall
also cause to be filed and have become effective both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the Exchange Offer Registration
Statement if so permitted by applicable law and SEC rules and policy at the time) with respect to
offers and sales of Registrable Securities held by the Initial Purchasers after completion of the
Exchange Offer.
The Company and the Guarantors agree to use their commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective until all the Securities registered thereunder
cease to be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the
Guarantors further agree to supplement or amend the Shelf Registration Statement and the related
Prospectus if required by the rules, regulations or instructions applicable to the registration
form used by the Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder or if reasonably requested by a Holder of Registrable
Securities with
respect to information relating to such Holder, and to use their reasonable best efforts to
cause any such amendment to become effective, if required, and such Shelf Registration Statement
and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors
agree to furnish to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement and, except as otherwise contemplated by this Agreement, any fees and
disbursements of counsel or experts retained by such Holder in connection with any registration
pursuant hereto (other than any such fees and disbursements included within the definition of
Registration Expenses).
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof shall not be
deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC or is automatically effective upon filing with the
SEC as provided by Rule 462 under the Securities Act.
(e) In the event that (i) there is a failure to file any Registration Statement on or before
the date specified for such filing pursuant to this Agreement, (ii) any Shelf Registration
Statement is not declared effective on or before the date specified for effectiveness thereof
pursuant to this Agreement, or (iii) the Exchange Offer is not consummated within 390 days from the
Issue Date (each such event referred to in clauses (i) through (iii) above, a “Registration
Default”) the Company shall pay additional interest on the Registrable Securities as described
below. With respect to the first 90-day period immediately following the occurrence of the first
Registration Default, additional interest shall be paid in an amount equal to a per annum rate of
0.25% on the principal amount of such Securities. The amount of the additional interest shall
increase by an additional per annum rate of 0.25% on the principal of such Securities with respect
to each subsequent 90-day period while a Registration Default is continuing until all Registration
Defaults have been cured, up to a maximum amount of additional interest for all Registration
Defaults of 1.00% per annum on the principal amount of such Securities. During the continuance of
any Registration Default, the additional interest accruing pursuant to the foregoing provisions
shall continue to accrue on any Securities that were Registrable Securities on the initial date of
the first Registration Default notwithstanding that such Securities may have thereafter ceased to
be Registrable Securities pursuant to clause (ii) of the proviso to the definition of Registrable
Securities. Following the cure of all Registration Defaults, the accrual of additional interest
will cease.
If the Exchange Offer Registration Statement, or any Shelf Registration Statement required to
be filed hereby, has become effective and thereafter either ceases to be effective or the
Prospectus contained therein ceases to be usable, in each case whether or not permitted by this
Agreement, at any time prior to 180 days after the last Exchange Date in the case of the Exchange
Offer Registration Statement, or during the Shelf Effectiveness Period in the case of the Shelf
Registration Statement, and such failure to remain effective or usable exists for more than 30 days
(whether or not consecutive) in any 12-month period, then the interest rate on the Registrable
Securities will be increased by 0.25% per annum for each 90-day period commencing on the
31st day in such 12-month period, up to a maximum of 1.00% per annum on the principal
amount of such Securities, and ending on such date that the Exchange Offer Registration Statement
or Shelf Registration Statement, as applicable, has again become effective or the Prospectus again
becomes usable. Any additional interest payable pursuant to the foregoing sentence shall continue
to accrue on all Securities that were Registrable Securities on the initial date that any such
additional interest began to accrue notwithstanding that such Securities may have thereafter ceased
to be Registrable Securities pursuant to clause (ii) of the proviso to the definition of
Registrable Securities.
Subject to the limitation set forth in the next succeeding paragraph and subject to the
provisions of Section 3 of this Agreement, the Company shall be entitled to delay the initial
filing of the Shelf Registration Statement, suspend its obligation to file any amendment to the
Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in the
Shelf Registration Statement, make any other filing with the SEC that would be incorporated by
reference into the Shelf Registration Statement, cause the Shelf Registration Statement to remain
effective or take any similar action (collectively, “Registration Actions”) if there is a
possible acquisition or business combination or other transaction, business development or event
involving the Company and its subsidiaries that may require disclosure in the Shelf Registration
Statement and the Company determines in the exercise of its reasonable judgment that such
disclosure is not in the best interest of the Company and its stockholders or obtaining any
financial statements relating to any such acquisition or business combination required to be
included in the Shelf Registration Statement would be impracticable. Upon the occurrence of any of
the conditions described in (the foregoing sentence, the Company shall give prompt notice (a
“Suspension Notice”) thereof to the Holders. Upon the termination of such condition, the
Company shall give prompt notice thereof to the Holders and shall promptly proceed with all
Registration Actions that were suspended pursuant to this paragraph.
The Company may suspend Registration Actions pursuant to the preceding paragraph for one or
more periods (each, a “Suspension Period”) not to exceed 90 days in the aggregate during
any twelve month period, during which
no additional interest shall be payable pursuant to this Section 2(e) as a result thereof. If one
or more Suspension Periods exceed 90 days in the aggregate during any twelve month period, then
additional interest shall begin to accrue on 91st day until such Registration Default is cured.
Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given
to the Holders and shall end on the date on which the Company gives the Holders a notice that the
Suspension Period has terminated. The Company shall extend the Shelf Effectiveness Period by the
total number of days during which a Suspension Period was in effect, so long as there are
Registrable Securities. Notwithstanding anything to the foregoing, the Company shall at all times
use its commercially reasonable efforts to end any Suspension Period at the earliest possible time.
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply
with their obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may
be required to specifically enforce the Company’s and the Guarantors’ obligations under Section
2(a) and Section 2(b) hereof.
(g) The Company represents, warrants and covenants that it (including its agents and
representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing
Prospectus in connection with any offering of Registrable Securities under a Registration
Statement.
3. Registration Procedures. (a) In connection with their obligations pursuant to
Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall as soon as practicable:
(i) prepare and file with the SEC a Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the Company and the Guarantors, (y) shall, in
the case of a Shelf Registration, be available for the sale of the Registrable Securities by the
Holders thereof and (z) shall comply as to form in all material respects with the requirements of
the applicable form and include or incorporate by reference all financial statements required by
the SEC to be filed therewith; and use their commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective for the applicable period in
accordance with Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective for the
applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented
by any
required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under
the Securities Act; and keep each Prospectus current during the period described in Section 4(3)
of, and Rule 174 under, the Securities Act that is applicable to transactions by brokers or dealers
with respect to the Registrable Securities or Exchange Securities;
(iii) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities,
to counsel for the Initial Purchasers, to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each
Prospectus or preliminary prospectus, and any amendment or supplement thereto, as such Holder,
counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition
of the Registrable Securities thereunder; and the Company and the Guarantors consent to the use of
such Prospectus, preliminary prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by and in the manner
described in such Prospectus, preliminary prospectus or any amendment or supplement thereto in
accordance with applicable law;
(iv) use their commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall reasonably request in
writing by the time the applicable Registration Statement becomes effective; cooperate with such
Holders in connection with any filings required to be made with the Financial Industry Regulatory,
Inc.; and do any and all other acts and things that may be reasonably necessary or advisable to
enable each Holder to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither the Company nor any Guarantor shall
be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general
consent to service of process in any such jurisdiction or (3) subject itself to taxation in any
such jurisdiction if it is not so subject;
(v) notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify
each Holder of Registrable Securities and counsel for such Holders promptly and, if requested by
any such Holder or counsel, confirm such advice in writing (1) when a Registration Statement has
become effective, when any post-effective amendment thereto has been filed and becomes effective
and when any amendment or supplement to the Prospectus has been filed, (2) of any request by the
SEC or any state securities authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has become effective, (3)
of the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, including the receipt by the Company of any notice of objection of the SEC to the
use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act, (4) if, between the applicable effective date of a Shelf
Registration Statement and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company or any Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any, relating to an offering
of such Registrable Securities cease to be true and correct in all material respects or if the
Company or any Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (5) of the happening of any event during the period a Registration
Statement is effective that makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or that requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not misleading and (6)
of any determination by the Company or any Guarantor that a post-effective amendment to a
Registration Statement or any amendment or supplement to the Prospectus would be appropriate;
(vi) use their commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration,
the resolution of any objection of the SEC pursuant to Rule 401(g)(2), including by filing an
amendment to such Shelf Registration Statement on the proper form, as soon as practicable and
provide immediate notice to each Holder of the withdrawal of any such order or such resolution;
(vii) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities,
without charge, upon request, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without any documents incorporated therein by reference or
exhibits thereto, unless requested);
(viii) in the case of a Shelf Registration, cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends (other than as required
by applicable law) and enable such Registrable Securities to be issued in such denominations and
registered in such names (consistent with the provisions of the Indenture) as such Holders may
reasonably request at least one Business Day prior to the closing of any sale of Registrable
Securities;
(ix) in the case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(a)(v)(5) hereof, use their commercially reasonable efforts to prepare and file with the
SEC a supplement or post-
effective amendment to such Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document so that, as
thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the
Registrable Securities, such Prospectus shall not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company and the Guarantors shall
notify the Holders of Registrable Securities to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and such Holders hereby agree to suspend use of
the Prospectus until the Company and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission;
(x) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a Prospectus, provide copies of
such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and make such of the
representatives of the Company and the Guarantors as shall be reasonably requested by the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders of
Registrable Securities or their counsel) available for discussion of such document; and the Company
and the Guarantors shall not, at any time after initial filing of a Registration Statement, use or
file any Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus, of
which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities or their counsel) shall object;
(xi) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the initial effective date of a Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture Act in connection with the
registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute,
and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may
be required to effect such changes and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner;
(xiii) in the case of a Shelf Registration, prior to the filing of the Shelf Registration
Statement and throughout the Shelf Effectiveness Period, make
available for inspection by a representative of the Holders of the Registrable Securities (an
“Inspector”), any Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, any attorneys and accountants designated by a majority of the Holders of Registrable
Securities to be included in such Shelf Registration and any attorneys and accountants designated
by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and
other records, documents and properties of the Company and its subsidiaries, and cause the
respective officers, directors and employees of the Company and the Guarantors to supply all
information reasonably requested by any such Inspector, Underwriter, attorney or accountant in
connection with a Shelf Registration Statement and due diligence related to the offering and sale
of Securities thereunder; provided that if any such information is identified by the
Company or any Guarantor as being confidential or proprietary, each Person receiving such
information shall take actions to maintain it in confidence and such information shall not be
disclosed to any other Person until such time as (1) the disclosure of such information is required
to be set forth in the Shelf Registration Statement or the Prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or supplement to such Prospectus in
order that such Shelf Registration Statement, Prospectus, amendment or supplement as the case may
be, does not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, (in which case the subject information may only be disclosed to
another Person following such time as the Shelf Registration Statement in which such information is
included is publicly filed by the Company with the SEC), (2) such Person shall be legally compelled
to disclose such information pursuant to a subpoena or other order from a court of competent
jurisdiction (but only after such Person shall have given the Company prior written notice of such
requirement, and provided that such Person uses reasonable efforts to allow the Company at the
Company’s expense to undertake to contest the compulsion to disclose such information), (3) the
information has been made generally available to the public. Notwithstanding the foregoing, any
Person receiving such information may disclose the information to any governmental or regulatory
authority having jurisdiction over such Person (other than pursuant to a subpoena or other order
from a court of competent jurisdiction, which disclosure shall be subject to clause (2) of the
proviso to the immediately preceding sentence) without notice to or consent from the Company if
such Person advises such authority of the confidential nature of the information.
(xiv) in the case of a Shelf Registration, use their commercially reasonable efforts to cause
all Registrable Securities to be listed on any securities exchange or any automated quotation
system on which similar securities issued by the Company or any Guarantor are then listed if
requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable
listing requirements;
(xv) if reasonably requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include or incorporate by eference in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such Holder reasonably
requests to be included therein and make all required filings of such Prospectus supplement or such
post-effective amendment as soon as reasonably practicable after the Company has received
notification of the matters to be so included in such filing;
(xvi) in the case of a Shelf Registration, enter into such customary agreements and take all
such other actions in connection therewith (including those requested by the Holders of a majority
in principal amount of the Registrable Securities covered by the Shelf Registration Statement) in
order to expedite or facilitate the disposition of such Registrable Securities including, but not
limited to, an Underwritten Offering and in such connection, (1) to the extent possible, make such
representations and warranties to the Holders and any Underwriters of such Registrable Securities
with respect to the business of the Company and its subsidiaries and the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (2) in connection with any
Underwritten Offering, obtain opinions of counsel to the Company and the Guarantors (which counsel
and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and
such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in opinions requested in
underwritten offerings, (3) obtain “comfort” letters from the independent certified public
accountants of the Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any business acquired by the
Company or any Guarantor for which financial statements and financial data are or are required to
be included in the Registration Statement) addressed to each selling Holder (to the extent
permitted by applicable professional standards) and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type customarily covered in “comfort”
letters in connection with underwritten offerings, including but not limited to financial
information contained in any preliminary prospectus or Prospectus and (4) in connection with an
Underwritten Offering, deliver such documents and certificates as may be reasonably requested by
the Holders of a majority in principal amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company and the Guarantors made
pursuant to clause (1) above and to evidence compliance with any customary conditions contained in
an underwriting agreement; and
(xvii) so long as any Registrable Securities remain outstanding, cause each Subsidiary that
becomes a Guarantor to execute a Registration Rights Agreement Joinder in the form attached hereto
as Annex A at the time such Subsidiary becomes a Guarantor and to deliver such counterpart to the
Initial Purchasers no later than two Business Days following the execution thereof.
(b) In the case of a Shelf Registration Statement, the Company may require, as a condition to
including such Holder’s Registrable Securities in such Shelf Registration Statements, each Holder
of Registrable Securities to furnish to the Company such information regarding such Holder and the
proposed disposition by such Holder of such Registrable Securities as the Company and the
Guarantors may from time to time reasonably request in writing.
(c) In the case of a Shelf Registration Statement, each Holder of Registrable Securities
covered in such Shelf Registration Statement agrees that, upon receipt of any notice from the
Company and the Guarantors of the happening of any event of the kind described in Section
3(a)(v)(2) through and including 3(a)(v)(6) hereof, such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration Statement until such
Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section
3(a)(ix) hereof and, if so directed by the Company and the Guarantors, such Holder shall deliver to
the Company and the Guarantors all copies in its possession, other than permanent file copies then
in such Holder’s possession, of the Prospectus covering such Registrable Securities that is current
at the time of receipt of such notice.
(d) If the Company and the Guarantors shall give any notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company and the Guarantors shall
extend the period during which such Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the date of the giving
of such notice to and including the date when the Holders of such Registrable Securities shall have
received copies of the supplemented or amended Prospectus necessary to resume such dispositions.
Additional interest on the Securities shall be payable as provided in Section 2(e) during any
period of such suspension (subject to the ability of the Company to suspend payment of additional
interest during the time periods specified in the final paragraph of such Section).
(e) The Holders of Registrable Securities covered by a Shelf Registration Statement who desire
to do so may sell such Registrable Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment bank or investment banks and manager or managers (each an
“Underwriter”) that shall administer the offering shall be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering, subject in
each case to the consent of the Company (which shall not be unreasonably withheld or delayed).
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has taken the
position that any broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed to be an
“underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their
prospectus delivery obligation under the Securities Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of
the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such
period may be extended pursuant to Section 3(d) of this Agreement), if requested by one or more
Participating Broker-Dealers, in order to expedite or facilitate the disposition of any Exchange
Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in
Section 4(a) above. The Company and the Guarantors further agree that Participating Broker-Dealers
shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available)
during such period (but not thereafter) in connection with the resales contemplated by this Section
4.
(c) The Initial Purchasers shall have no liability to the Company, any Guarantor or any Holder
with respect to any request that they may make pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and each Guarantor, jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or
alleged untrue statement of a material fact contained in any Registration Statement or any omission
or alleged omission to state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, any Free Writing Prospectus used in
violation of this Agreement or any “issuer information” (“Issuer Information”) filed or required to
be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser or information relating to any Holder furnished to
the Company in writing through any Initial Purchaser or any selling Holder, respectively, expressly
for use therein.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the Company
and the Guarantors, each officer of the Company and the Guarantors who signed the Registration
Statement and each Person, if any, who controls the Company, the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 5 except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have to an Indemnified Person otherwise than
under this Section 5. If any such proceeding shall be brought or asserted against an Indemnified
Person
and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 5 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay
the fees and expenses of such counsel related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to those available to
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Initial Purchaser, its affiliates, directors and officers and any control
Persons of such Initial Purchaser shall be designated in writing by JPMorgan, (y) for any Holder,
its directors and officers and any control Persons of such Holder shall be designated in writing by
the Majority Holders and (z) in all other cases shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on
claims that are the subject matter of such proceeding and (B) does not include any statement as to
or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by
the Holders from receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the
Holders on the other in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the Holders on the other shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or by the Holders and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company, the Guarantors and the Holders that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any reasonable legal fees or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 5 in no event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the
Guarantors or the officers or directors of or any Person controlling the Company or the Guarantors,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent, warrant and agree
that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Guarantor under any other agreement and (ii) neither the Company
nor any Guarantor has entered into, or on or after the date of this Agreement shall enter into, any
agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company and the Guarantors have obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or consent;
provided that no amendment, modification, supplement, waiver or consent to any departure
from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder. Any amendments, modifications,
supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by
each of the parties hereto.
(c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in
the Purchase Agreement; (ii) if to the Company and the Guarantors,
initially at the Company’s address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of this Section (7)(c);
and (iii) to such other persons at their respective addresses as provided in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance with the provisions of
this Section 6(c). All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged,
if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery. Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the address specified in
the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their
capacity as Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of,
any of the obligations of such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(j) Entire Agreement; Severability. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements and prior writings
with respect thereto. If any term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated. The
Company, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid provisions the economic effect of
which
comes as close as possible to that of the invalid, void or unenforceable provisions.
(k) Termination. Termination. This Agreement shall automatically terminate if the Company
completes the Special Mandatory Redemption (as defined in the Indenture) in accordance with the
terms of the Indenture and the Escrow Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| Xx Xxxxxx Snapple Group, Inc. | ||||||
| By: /s/ Xxxx X.Xxxxxxx | ||||||
| Name: Xxxx X. Xxxxxxx | ||||||
| Title: Executive Vice President & CFO | ||||||
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX, XXXXX & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
XXXXXXX, XXXXX & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
UBS SECURITIES LLC
For themselves and on behalf of the
several Initial Purchasers
several Initial Purchasers
| X.X. XXXXXX SECURITIES INC. | ||||
By
|
/s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Title: Executive Director | ||||
| BANC OF AMERICA SECURITIES LLC | ||||
By |
/s/ Xxxx Xxxxx | |||
| Authorized Signatory | ||||
| XXXXXXX, SACHS & CO. | ||||
By |
/s/ Xxxxxxx Xxxxx | |||
| Xxxxxxx, Sachs & Co. | ||||
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By |
/s/ Yurij Slyz | |||
| Authorized Signatory | ||||
| UBS SECURITIES LLC | ||||
By |
/s/ Xxxxxxxxx Xxxxxxx | |||
| Authorized Signatory | ||||
By |
/s/ Jordan Matusow | |||
| Authorized Signatory | ||||
Exhibit A
Form of Registration Rights Agreement Joinder
With respect to the Registration Rights Agreement, dated April 30, 2008 by and among the Xx
Xxxxxx Snapple Group, Inc., a Delaware corporation and X.X. Xxxxxx Securities Inc., Banc of America
Securities LLC, Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co. and UBS Securities LLC,
(the “Registration Rights Agreement”), each of the undersigned under the heading
“Guarantor” below agrees to be bound by such Registration Rights Agreement in the capacity as
“Guarantor” thereunder, in each case, as of the effective time of the expiration of the Escrow
Period (as defined in the Purchase Agreement), on May [___], 2008. Capitalized terms used but not
defined in this Registration Rights Agreement Joinder shall have the meanings given to such terms
in the Registration Rights Agreement.
| Guarantor: | ||||||
| [Guarantor] | ||||||
| By: | ||||||
| Title: | ||||||
