EXHIBIT 10.1
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REGISTRATION RIGHTS AGREEMENT
among
DEERFIELD TRIARC CAPITAL CORP.,
THE PARTIES IDENTIFIED
AS THE STOCKHOLDERS ON THE
SIGNATURE PAGES HERETO AND THE OTHER
PERSONS WHO MAY BECOME PARTIES TO THIS
AGREEMENT FROM TIME TO TIME,
as Stockholders
and
TRIARC COMPANIES, INC.,
as Sellers' Representative
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Dated as of April 19, 2007
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TABLE OF CONTENTS
PAGE
Section 1. Definitions................................................1
Section 2. Registration...............................................4
Section 3. Registration Procedures....................................7
Section 4. Holder's Obligations......................................11
Section 5. Registration Expenses.....................................11
Section 6. Indemnification...........................................12
Section 7. Information Requirements..................................15
Section 8. Miscellaneous.............................................15
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REGISTRATION RIGHTS AGREEMENT dated as of April 19, 2007 (this
"AGREEMENT"), between Deerfield Triarc Capital Corp., a Maryland corporation
(the "COMPANY"), the parties identified as the stockholders on the signature
pages hereto and the Persons who may become parties to this Agreement from time
to time in accordance with the terms of this Agreement (each, a "STOCKHOLDER"
and collectively, the "STOCKHOLDERS") and Triarc Companies, Inc., a Delaware
corporation, as the Sellers' Representative under the Merger Agreement referred
to below (the "SELLERS' REPRESENTATIVE").
WHEREAS, the Company, DFR Merger Company, LLC, an Illinois limited
liability company and an indirect wholly owned subsidiary of the Company
("MERGER SUB"), Deerfield & Company LLC, an Illinois limited liability company
("DEERFIELD") and the Sellers' Representative have entered into an Agreement
and Plan of Merger, dated as of the date hereof (as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms, the "MERGER AGREEMENT"), which provides, among other things, for the
merger of Merger Sub with and into Deerfield, with Deerfield surviving the
merger and becoming an indirect wholly owned subsidiary of the Company (the
"MERGER");
WHEREAS, pursuant to the transactions contemplated by the Merger
Agreement, the Stockholders shall receive, as consideration in the Merger, cash
and shares of common stock, par value $0.001 per share, of the Company (the
"COMMON STOCK");
WHEREAS, in order to induce Deerfield and the Sellers' Representative
to enter into the Merger Agreement, (i) the Company has agreed to grant
registration rights with respect to the Registrable Securities (as hereinafter
defined) as set forth in this Agreement and (ii) the effectiveness of the
Initial Shelf Registration is a condition to the obligations of Deerfield to
consummate the Merger; and
WHEREAS, certain of the members of Deerfield have become parties to
this Agreement on the date hereof and each other member of Deerfield will be
permitted to become a party to this Agreement at any time prior to the Closing
of the Merger.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
Section 1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by or is under common control
with, such first Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGREEMENT" has the meaning set forth in the preamble.
"AMENDMENT EFFECTIVENESS DEADLINE DATE" has the meaning set forth in
Section 2(d)(i).
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which banks in New York City are permitted or required by law to be
closed, and shall consist of the time period from 12:01 a.m. through 12:00
midnight Eastern time.
"CLOSING DATE" has the meaning set forth in the Merger Agreement.
"COMMON STOCK" has the meaning set forth in the recitals and shall
include any security into which the Common Stock is converted, exchanged,
reclassified, recapitalized or the like.
"COMPANY" has the meaning set forth in the preamble.
"DEERFIELD" has the meaning set forth in the recitals.
"DEFERRAL NOTICE" has the meaning set forth in Section 3(h)(ii).
"DEFERRAL PERIOD" has the meaning set forth in Section 3(h).
"DISCLOSURE PACKAGE" means (i) the preliminary prospectus, (ii) each
Free Writing Prospectus and (iii) all other information that is deemed, under
Rule 159 under the Securities Act, to have been conveyed to purchasers of
securities at the time of sale (including, without limitation, a contract of
sale).
"EFFECTIVENESS PERIOD" means (x) with respect to a registration
pursuant to Section 2(a), the period commencing on the Closing Date and ending
on the earlier of (i) the second anniversary of the Closing Date (subject to an
extension in the event that a Deferral Period is imposed by the Company in
accordance with Section 3(h) hereof; PROVIDED that such extension shall be
equal to the aggregate time periods of the Deferral Periods, if any) and (ii)
the date that all Registrable Securities have ceased to be Registrable
Securities and (y) with respect to a registration pursuant to EXHIBIT A, the
period commencing on the date such Registration Statement first becomes
effective and ending on the date that is 180 days thereafter (subject to an
extension in the event that a Deferral Period is imposed by the Company in
accordance with Section 3(h) hereof; PROVIDED that such extension shall be
equal to the aggregate time periods of the Deferral Periods, if any).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"FILING DEADLINE DATE" has the meaning set forth in Section 2(a).
"FREE WRITING PROSPECTUS" means any "free writing prospectus," as
defined in Rule 405 of the Securities Act.
"HOLDER" means any Stockholder holding Registrable Securities and each
Permitted Transferee of Registrable Securities from a Stockholder.
"HOLDER INDEMNIFIED PARTY" has the meaning set forth in Section 6(a).
"INDEMNIFIED PARTY" has the meaning set forth in Section 6(c).
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"INDEMNIFYING PARTY" has the meaning set forth in Section 6(c).
"INITIAL SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(a).
"INITIATING HOLDERS" has the meaning set forth in Section 1.1(a) of
EXHIBIT A.
"LOSSES" has the meaning set forth in Section 6(a).
"MATERIAL EVENT" has the meaning set forth in Section 3(h).
"MERGER" has the meaning set forth in the recitals.
"MERGER AGREEMENT" has the meaning set forth in the recitals.
"MERGER SUB" has the meaning set forth in the recitals.
"NOTICE AND QUESTIONNAIRE" means a written notice and questionnaire in
customary form delivered by a Holder to the Company.
"NOTICE HOLDER" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"PERMITTED TRANSFEREE" has the meaning set forth in Section 8(f).
"PERSON" has the meaning set forth in the Merger Agreement.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"PUBLIC SALE" means any sale of Registrable Securities to the public
pursuant to a public offering registered under the Securities Act or to the
public through a broker or market maker pursuant to the provisions of Rule 144
or any other public offering not required to be registered under the Securities
Act.
"REGISTRABLE SECURITIES" means any and all shares of Common Stock
received by the Stockholders pursuant to the Merger Agreement or Escrow
Agreement (including any and all shares of Common Stock held by Deerfield or
any of its subsidiaries and distributed or otherwise transferred directly or
indirectly to a Holder) and any shares of capital stock or other equity
interests issued or issuable to any of the Holders with respect to such shares
of Common Stock by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization; PROVIDED, HOWEVER, Registrable Securities shall not include
shares of Common Stock that (i) have been sold in a Public Sale (except that
shares of Common Stock received by a Person in the Spin Distribution or
otherwise received directly or indirectly from a Holder that may not be sold
without volume or manner of sale limitations under the provisions of Rule 144
shall nonetheless constitute Registrable Securities), (ii) may in the written
opinion of counsel to the Company be sold by such Holder (taking into account
any affiliate of such Holder or other person with whom such Holder must
aggregate sales under Rule 144) without restriction (including volume and
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manner of sale restrictions) on a single day without registration in compliance
with Rule 144 or (iii) cease to be outstanding.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e).
"REGISTRATION STATEMENT" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such registration
statement.
"RESTRICTED SECURITIES" means "restricted securities" as defined in
Rule 144.
"RULE 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such rule.
"RULE 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such rule.
"SEC" means the Securities and Exchange Commission or any successor
agency then having jurisdiction to enforce the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SELLERS' REPRESENTATIVE" has the meaning set forth in the preamble.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a).
"SPIN DISTRIBUTION" has the meaning set forth in Section 2(a).
"STOCKHOLDERS" has the meaning set forth in the preamble.
"SUBSEQUENT REGISTRATION STATEMENT" has the meaning set forth in
Section 2(b).
"SUCCESSOR ENTITY" means any limited liability company, limited
partnership, corporation or other entity into which the Company may have
converted or of which the Company may have become a direct or indirect
subsidiary (whether by merger, conversion, transfer of substantially all of its
assets or otherwise).
Section 2. REGISTRATION.
(a) The Company shall prepare and file or cause to be
prepared and filed with the SEC, as soon as practicable after the date hereof
but in any event not later than 30 days after the date hereof (the "FILING
DEADLINE DATE"), a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
"SHELF REGISTRATION STATEMENT") registering the resale from time to time by
Holders (including the distribution by the Sellers' Representative of
Registrable Securities as a dividend or other distribution to its stockholders)
(the "SPIN DISTRIBUTION")) of all of the Registrable Securities (the "INITIAL
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SHELF REGISTRATION STATEMENT"). The Initial Shelf Registration Statement shall
be on Form S-3 or another appropriate form permitting registration of such
Registrable Securities for resale by such Holders, including the Spin
Distribution, in accordance with the methods of distribution elected by the
Holders and set forth in the Initial Shelf Registration Statement. The Company
shall use its commercially reasonable efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act on or
prior to the date that all of the conditions to the parties obligation to
consummate the Merger shall have been satisfied or waived (other than the
condition to Deerfield's obligation to consummate the Merger that the Initial
Shelf Registration Statement shall have been declared effective) and, subject
to any Deferral Periods, to keep the Initial Shelf Registration Statement (or
any Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time
the Initial Shelf Registration Statement is declared effective, each Holder
that became a Notice Holder on or prior to the date seven (7) days prior to
such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of
Registrable Securities (including the recipients of the Spin Distribution) in
accordance with applicable law.
(b) If the Initial Shelf Registration Statement, any
Subsequent Registration Statement or any Registration Statement filed pursuant
to Section 1.1 or 1.3 of EXHIBIT A ceases to be effective for any reason at any
time during the applicable Effectiveness Period (other than because all
Registrable Securities registered thereunder shall have been resold pursuant
thereto or shall have otherwise ceased to be Registrable Securities), the
Company shall use its commercially reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within seven (7) days of such cessation of effectiveness amend the such
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional
Registration Statement covering all of the securities that as of the date of
such filing are Registrable Securities (a "SUBSEQUENT REGISTRATION STATEMENT").
If a Subsequent Registration Statement is filed, the Company shall use its
commercially reasonable efforts to cause the Subsequent Registration Statement
to become effective as promptly as is practicable after such filing and,
subject to any Deferral Periods, to keep such Registration Statement (or
subsequent Shelf Registration Statement) continuously effective until the end
of the applicable Effectiveness Period.
(c) The Company shall supplement and amend each Registration
Statement filed pursuant to this Agreement (including EXHIBIT A) if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Registration Statement, or if required by the
Securities Act.
(d) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
3(h). Each Holder wishing to sell Registrable Securities pursuant to a
Registration Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Company at least three Business Days prior to any intended
distribution by such Holder of Registrable Securities under such Registration
Statement. From and after the date the Registration Statement is declared
effective, the Company shall, as promptly as practicable after the date a
Notice and Questionnaire is delivered, and in any event upon the later of (x)
seven (7) days after such date or (y) seven (7) days after the expiration of
any Deferral Period in effect when the Notice and Questionnaire is delivered or
put into effect within seven (7) days of such delivery date:
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(i) if required by applicable law, file with the SEC
a post-effective amendment to the Registration Statement or prepare and, if
required by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference or
file any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Company shall file a post-effective
amendment to the Registration Statement, use its commercially reasonable
efforts to cause such post-effective amendment to be declared effective under
the Securities Act as promptly as is practicable, but in any event by the date
(the "AMENDMENT EFFECTIVENESS DEADLINE DATE") that is seven (7) days after the
date such post-effective amendment is required by this clause to be filed;
(ii) provide such Holder and the underwriters, if
any, copies of any documents filed pursuant to Section 2(d)(i); and
(iii) notify such Holder and the underwriters, if any,
as promptly as practicable after the effectiveness under the Securities Act of
any post-effective amendment filed pursuant to Section 2(d)(i);
PROVIDED, that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(h). Notwithstanding anything contained herein to the contrary, the Amendment
Effectiveness Deadline Date shall be extended by up to seven (7) days from the
expiration of a Deferral Period if such Deferral Period shall be in effect on
the Amendment Effectiveness Deadline Date.
(e) If the Holders intend to distribute the Registrable
Securities covered by a Registration Statement filed pursuant to Section 2(a)
or (b) or Section 1.1 or 1.3 of EXHIBIT A by means of an underwriting, they
shall so advise the Company. The underwriter or underwriters will be selected
by the Company, subject to the approval of a majority in interest of the
Holders participating in such registration. In such event, the right of any
Holder to include Registrable Securities in such underwritten offering shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Holders
participating in the registration and the Holder) to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this Agreement, if
the managing underwriter advises the Company and the Holders participating in
such underwriting in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the Company shall so advise all
Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders thereof, in
proportion (as nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder at the time of the filing of the
registration statement; provided, however, that the number of Registrable
Securities held by Holders to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting. Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
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(f) From and after the end of the Effectiveness Period
referred to in clause (x) of the defined term "Effectiveness Period," the
Holders shall have the additional registration rights set forth in EXHIBIT A
attached hereto.
Section 3. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company under Section 2 hereof or EXHIBIT A,
the Company shall:
(a) Prepare and file as soon as reasonably practicable with
the SEC a Registration Statement or Registration Statements on Form S-3 or
another appropriate form under the Securities Act available for the sale of the
Registrable Securities by the Holders in accordance with the intended method or
methods of distribution thereof (including the Spin Distribution), and use its
commercially reasonable efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; PROVIDED, that before
filing any Registration Statement, Prospectus or Disclosure Package or any
amendments or supplements thereto with the SEC, the Company shall furnish to
the Sellers' Representative, if prior to the Merger, or the Holders and the
underwriters, if any, if subsequent to the Merger, copies of all such documents
proposed to be filed and within seven (7) days of the delivery of such copies
in good faith consider reflecting in each such document when so filed with the
SEC all comments, if any, that the Sellers' Representative, if prior to the
Merger, or the Holders and the underwriters, if any, if subsequent to the
Merger, shall propose; PROVIDED, that the Company shall not be required to take
any actions under this Section 3(a) that are, in the opinion of counsel
experienced in such matters, in violation of applicable law. The Company shall
promptly provide copies of any written correspondence from the SEC with respect
to a Prospectus, prospectus supplement, Registration Statement or
post-effective amendment to the Sellers' Representative, if prior to the
Merger, or the Holders and the underwriters, if any, if subsequent to the
Merger.
(b) Subject to its ability to issue a Deferral Notice,
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 continuously effective for the applicable Effectiveness Period; cause
the related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and use its
commercially reasonable efforts to comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all securities covered
by such Registration Statement during the applicable Effectiveness Period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or such Prospectus as so
supplemented.
(c) As promptly as practicable give notice to the Sellers'
Representative, if prior to the Merger, or the Notice Holders and the
underwriters, if any, if subsequent to the Merger, (i) when any Prospectus,
prospectus supplement, Registration Statement, Disclosure Package or
post-effective amendment to a Registration Statement has been filed with the
SEC and, with respect to a Registration Statement or any post-effective
amendment, when the same has been declared effective, (ii) of any request,
following the effectiveness of the Initial Shelf Registration Statement under
the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or
related Prospectus or for additional information, (iii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
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Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of a Material Event and (vi) of the
determination by the Company that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of
the Company (or as required pursuant to Section 3(h)), state that it
constitutes a Deferral Notice, in which event the provisions of Section 3(h)
shall apply.
(d) Use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case at the
earliest possible moment, and provide prompt notice to the Sellers'
Representative, if prior to the Merger, or to the Notice Holders and the
underwriters, if any, if subsequent to the Merger, of the withdrawal of any
such order.
(e) As promptly as practicable, furnish to the Sellers'
Representative, if prior to the Merger, or each Notice Holder and the
underwriters, if any, if subsequent to the Merger, without charge, at least one
conformed copy of the Registration Statement and any amendment thereto,
excluding all schedules, exhibits and all documents incorporated or deemed to
be incorporated therein by reference (unless requested in writing by the
Sellers' Representative, if prior to the Merger, or such Notice Holder, if
subsequent to the Merger).
(f) During the Effectiveness Period, deliver to each Notice
Holder and the underwriters, if any, in connection with any sale of Registrable
Securities pursuant to such Registration Statement, without charge, as many
copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such Notice Holder may reasonably request; to provide a
"reasonable number" of copies thereof to the New York Stock Exchange as
contemplated by Rule 153 under the Securities Act; and the Company hereby
consents (except during such periods that a Deferral Notice is outstanding and
has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder and the underwriters, if any, in
connection with any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the manner set forth
therein.
(g) Prior to any public offering of the Registrable
Securities pursuant to such Registration Statement, use its commercially
reasonable efforts to register or qualify or cooperate with the Notice Holders
and the underwriters, if any, in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any underwriter or Notice
Holder reasonably requests in writing (which request may be included in the
Notice and Questionnaire); prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use its commercially
reasonable efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in connection
with the offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the
relevant Registration Statement and the related Prospectus; PROVIDED, that the
Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
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(h) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of the Registration Statement or the initiation of
proceedings with respect to such Registration Statement under Section 8(d) or
8(e) of the Securities Act, (B) the occurrence of any event or the existence of
any fact (a "MATERIAL EVENT") as a result of which the financial statements
included in such Registration Statement become ineligible for inclusion
therein, such Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or any related
Prospectus shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any pending
corporate development that, in the good faith judgment of the Company makes it
necessary or advisable to suspend the availability of the such Registration
Statement and the related Prospectus for a discrete period of time because not
to do so would be detrimental to the Company and its subsidiaries:
(i) Subject to the Deferral Period, as promptly as
practicable prepare and file, if necessary pursuant to applicable law, a
post-effective amendment to such Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration Statement does
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, use its commercially reasonable efforts to cause it to be declared
effective as promptly as is practicable, and
(ii) give notice to the Notice Holders and the
underwriters, if any, that the availability of the Registration Statement is
suspended (a "DEFERRAL NOTICE") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Registrable Securities pursuant to such
Registration Statement until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or until
it is advised in writing by the Company that the Prospectus may be used, and
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company shall use its commercially reasonable efforts to ensure
that the use of the Prospectus may be resumed (x) in the case of clause (A) or
(B) above, as promptly as is practicable, and (y) in the case of clause (C)
above, as soon as practicable after, in the good faith judgment of the Company,
public disclosure of such pending corporate development would no longer be
detrimental to the interests of the Company. The Company shall be entitled to
exercise its right under this Section 3(h) to suspend the availability of one
or more Registration Statements or any related Prospectuses for a period (the
"DEFERRAL PERIOD") that shall not exceed 30 days in any three-month period or
90 days in any 12-month period.
(i) If requested in writing in connection with a disposition
of Registrable Securities pursuant to a Registration Statement, make reasonably
available for inspection during normal business hours by a representative for
the Notice Holders of such Registrable Securities, any underwriter, and any
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broker-dealers, attorneys and accountants retained by such Notice Holders, and
any attorneys or other agents retained by an underwriter or a broker-dealer
engaged by such Notice Holders, all relevant financial and other records and
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate officers, directors and employees of
the Company and its subsidiaries to make reasonably available for inspection
during normal business hours on reasonable notice all relevant information
reasonably requested by such representative for the Notice Holders and the
underwriters, if any, or any such broker-dealers, attorneys or accountants in
connection with such disposition, in each case as is customary for similar "due
diligence" examinations; PROVIDED, that such Persons shall first hereby agree
with the Company that any information that is reasonably and in good faith
designated by the Company in writing as confidential at the time of delivery of
such information shall be kept confidential by such Persons and shall be used
solely for the purposes of exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities (in which case
the Company shall be provided notice prior to such disclosure so that it may
seek a protective order), (ii) disclosure of such information is required by
law (including any disclosure requirements pursuant to federal securities laws
in connection with the filing of any Registration Statement or the use of any
prospectus referred to in this Agreement), (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard by any such Person or (iv) such information becomes
available to any such Person from a source other than the Company and such
source is not bound by a confidentiality agreement.
(j) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning statements
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) for a 12-month period commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of such
Registration Statement, which statements shall be made available no later than
45 days after the end of the 12-month period or 90 days if the 12-month period
coincides with a fiscal year of the Company.
(k) Cooperate with each Notice Holder and the underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities sold or to be sold pursuant to a
Registration Statement, which certificates shall not bear any restrictive
legends, and cause such Registrable Securities to be in such names as such
Notice Holder may request in writing at least three Business Days prior to any
sale of such Registrable Securities.
(l) Use commercially reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange on which
securities of the same class and series issued by the Company are then listed,
PROVIDED that the applicable listing requirements are satisfied.
(m) Cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. or the New York Stock
Exchange, Inc.
(n) With respect to each Free Writing Prospectus or other
materials to be included in the Disclosure Package, ensure that no Registrable
Securities be sold "by means of" (as defined in Rule 159A(b) under the
Securities Act) such Free Writing Prospectus or other materials without the
prior written consent of the Holders of the Registrable Securities covered by
such registration statement, which Free Writing Prospectuses or other materials
shall be subject to the review of counsel to such Holders.
10
(o) Make all required filings of all Free Writing
Prospectuses with the SEC.
(p) Enter into and perform its obligations under such
customary agreements (including an underwriting agreement in customary form),
which may include indemnification provisions in favor of underwriters and other
persons in addition to, or in substitution for the provisions of Section 6 of
the Agreement, and take such other actions as sellers of a majority of shares
of such Registrable Securities, or the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities.
(q) Obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent, an opinion or
opinions from counsel for the Company in customary form and in form, substance
and scope reasonably satisfactory to such Holders, underwriters or agents and
their counsel.
(r) If requested by the managing underwriter of Registrable
Securities covered by the registration statement, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter reasonably requests to be included therein, including,
without limitation, with respect to the number of Registrable Securities being
sold by such Holder to such underwriter, the purchase price being paid therefor
by such underwriter and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering; and make
all required filings of such prospectus supplement or post-effective amendment
as soon as practicable after being notified of the matters incorporated in such
prospectus supplement or post-effective amendment.
Section 4. HOLDER'S OBLIGATIONS. Each Holder agrees, by acquisition
of the Registrable Securities, that it shall not be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 2(d) (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such
Notice Holder not misleading and any other information regarding such Notice
Holder and the distribution of such Registrable Securities as the Company may
from time to time reasonably request. The Company may exclude from such
registration the Registrable Securities of any Holder that does not furnish
such information provided above so long as such information is not so
furnished. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statements in such Prospectus, in
the light of the circumstances under which they were made, not misleading.
Section 5. REGISTRATION EXPENSES. The Company shall bear all fees
and expenses incurred by it in connection with the performance by the Company
of its obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to
11
be made with the National Association of Securities Dealers, Inc. or New York
Stock Exchange Inc. and (y) of compliance with federal and state securities or
Blue Sky laws (including, without limitation, reasonable fees and disbursements
of the counsel to the Company in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as Notice Holders
holding a majority of the Registrable Securities being sold pursuant to a
Registration Statement may designate), (ii) printing expenses, (iii)
duplication expenses relating to copies of any Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of
counsel for the Company and one half of the fees and disbursements of one
counsel representing all of the Holders in connection with the such
Registration Statement; PROVIDED, THAT, in the case of the Initial Shelf
Registration Statement, all of the fees and disbursements of counsel
representing all of the Holders in connection with such Initial Shelf
Registration Statement that are incurred prior to the effectiveness thereof
shall be borne by the Company, (v) reasonable fees and disbursements of the
registrar and transfer agent for the Common Stock and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In
addition, the Company shall pay the internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing by the
Company of the Registrable Securities on any securities exchange on which
similar securities of the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 5, each seller of Registrable Securities shall
pay all underwriting discounts and commissions and any stock transfer taxes in
connection with any underwritten offering.
Section 6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify and hold harmless each Notice Holder, each underwriter (as defined in
the Securities Act) for such Holder, each director, officer or Affiliate of any
of the foregoing Persons and each Person, if any, who controls (within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing Persons (collectively the "HOLDER
INDEMNIFIED PARTIES"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (collectively, "LOSSES") caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or the Disclosure Package, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
Losses are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to such Holder
Indemnified Party furnished to the Company in writing by such Holder
Indemnified Party expressly for use therein; PROVIDED, that the Company shall
not be liable to any Holder Indemnified Party to the extent that such Losses
arise out of or are based upon an untrue statement or alleged untrue statement
of material fact or omission or alleged omission if either (i) (A) such Holder
Indemnified Party was required by law to send or deliver, and failed to send or
deliver, a copy of the Prospectus with or prior to delivery written
confirmation of the sale by such Holder Indemnified Party to the Person
asserting the claims from which the Losses arise and (B) the Prospectus would
have corrected such untrue statement or omission or alleged omission or (ii)
(A) such Holder Indemnified Party disposed of Registrable Securities to the
Person asserting the claim from which such Losses arise pursuant to a
Registration Statement and sent or delivered, or was required by law to send or
12
deliver, a Prospectus to such Person in connection with the disposition, (B)
such Holder Indemnified Party received a Deferral Notice in writing prior to
the date of such disposition and (C) such untrue statement or omission or
alleged omission was the reason for the Deferral Notice.
(b) INDEMNIFICATION BY HOLDERS. Each Holder agrees, if
shares held by such Holder are included in the securities as to which such
registration is being effected, severally and not jointly to indemnify and hold
harmless the Company, the directors of the Company, the officers of the Company
who sign the Registration Statement, and each person, if any, who controls the
Company (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) each underwriter and each other Holder, from
and against all Losses caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or the Disclosure Package, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only (i) with
reference to information relating to such Holder furnished to the Company in
writing by such Holder expressly for use in such Registration Statement, any
preliminary prospectus, the Prospectus, the Disclosure Package or any
amendments or supplements thereto or (ii) with respect to any Losses that may
arise as a result of the disposition by such Holder of Registrable Securities
to the Person asserting the claim from which such Losses arise pursuant to a
Registration Statement, the Prospectus or any amendments or supplements thereto
if such Holder sent or delivered, or was required by law to send or deliver, a
Prospectus in connection with such disposition, such Holder received a Deferral
Notice with respect to such prospectus in writing prior to the date of such
disposition and the untrue statement or alleged untrue statement or omission or
alleged omission was the reason for the Deferral Notice. In no event shall the
liability of any Holder hereunder be greater in amount than the dollar amount
of the proceeds (if any) received by such Holder upon the sale of the
Registrable Securities pursuant to the Registration Statement giving rise to
such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 6(a) or 6(b), such Person (the "INDEMNIFIED PARTY") shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Party 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 Party unless (i)
the Indemnifying Party has agreed in writing to pay such fees and expenses or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and, in the
reasonable judgment of the Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that all such fees and expenses shall
be reimbursed as they are incurred upon presentation of a statement or
statements thereof in reasonable detail and subject to an undertaking to return
such amounts if it is determined that such party is not entitled to
indemnification under this Agreement in respect of such matter. The
Indemnifying Party 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 Party agrees to
13
indemnify the Indemnified Party from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Party is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the
subject matter of such proceeding.
(d) CONTRIBUTION. To the extent that the indemnification
provided for in Section 6(a) or 6(b) is unavailable to an Indemnified Party or
insufficient in respect of any Losses referred to therein, then each
Indemnifying Party under such paragraph, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the Indemnified Party or parties on the other
hand from the offering of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Indemnifying Party or
parties on the one hand and of the Indemnified Party or parties on the other
hand in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations. Benefits
received by the Company and the Holders shall be deemed to be equal to the
aggregate Specified Value Per Share (as defined in the Merger Agreement) as of
the Closing Date of the Registrable Securities to which such Losses relate. The
relative fault of the Holders on the one hand and the Company on the other hand
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 Holders or by
the Company, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this paragraph are several in
proportion to the respective number of Registrable Securities they have sold
pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) 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 the immediately preceding paragraph. The amount
paid or payable by an Indemnified Party as a result of the Losses referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. 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 remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
(e) The indemnity, contribution and expense reimbursement
obligations of the parties hereunder shall be in addition to any liability any
Indemnifying Party or Indemnified Party may otherwise have hereunder, under the
Merger Agreement or otherwise.
(f) The indemnity and contribution provisions contained in
this Section 6 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 any Holder or any person controlling any Holder, or the Company, or
14
the Company's officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Securities by any Holder.
Section 7. INFORMATION REQUIREMENTS. The Company covenants that,
for so long as it is subject to the reporting requirements of the Exchange Act,
it will file the reports required to be filed by it under the Exchange Act so
as to enable any Holder to sell Registrable Securities pursuant to Rule 144
under the Securities Act. The Company also covenants that, for so long as any
Stockholder holds any Registrable Securities, it will cooperate with any Holder
and take such further reasonable action as any Holder may reasonably request in
writing (including, without limitation, making such reasonable representations
as any such Holder may reasonably request), all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions. Upon the written
request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements, unless
such a statement has been included in the Company's most recent report filed
pursuant to Section 13 or Section 15(d) of the Exchange Act.
Section 8. MISCELLANEOUS.
(a) SUCCESSOR ENTITY; RECAPITALIZATIONS, EXCHANGES, ETC. The
Company shall cause any Successor Entity to deliver to the Holders a written
undertaking confirming its obligations under this agreement as a condition to
any transaction pursuant to which such Successor Entity is formed. In addition,
the Company shall cause any other successor or assign (whether by merger,
consolidation, sale of assets or otherwise) to enter into a new registration
rights agreement with the Holders with respect to the Registrable Securities on
terms substantially the same as this Agreement as a condition of any such
transaction.
(b) NO INCONSISTENT AGREEMENTS. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company that is
inconsistent with the rights granted to the Holders in this Agreement. The
Company shall not enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement.
(c) INTERPRETATION. Any reference in this Agreement to a
statute shall be to such statute, as amended from time to time prior to the
date hereof, and to the rules and regulations promulgated thereunder prior to
the date hereof. Any reference to any agreement, document or instrument means
such agreement, document or instrument as amended or otherwise modified from
time to time in accordance with its terms. Unless the context otherwise
requires, (1) all references made in this Agreement to an Article or Section
are to an Article or Section of this Agreement, (2) "or" is disjunctive but not
necessarily exclusive, (3) "will" shall be deemed to have the same meaning as
the word "shall" and (4) words in the singular include the plural and vice
versa. Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation," whether or not so followed. All references to "$" or dollar
amounts are to lawful currency of the United States of America, unless
otherwise expressly stated. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(d) AMENDMENTS AND WAIVERS. This Agreement may be amended or
modified, and any of the terms hereof may be waived, only by written instrument
15
duly executed by (i) the Company and (ii) Holders holding Registrable
Securities representing at least a majority of the aggregate number of
Registrable Securities owned by all of the Holders, if subsequent to the
Merger. No waiver by any party of any term or condition contained in this
Agreement, in any one or more instances, shall be deemed to be or construed as
a waiver of the same or any other term or condition contained in this Agreement
on any future occasion.
(e) NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be delivered by hand or overnight courier service or by facsimile:
If to any Holder, to the address for such Holder specified on the
signature pages hereto.
If to the Sellers' Representative, to:
Triarc Companies, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Company, to:
Deerfield Triarc Capital Corp.
c/o Xxxxx Xxxxxxxxxx
Daroth Capital Advisors LLC
000 Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold, Esq.
Fax: (000) 000-0000
or to such other Persons, addresses or facsimile numbers as may be designated
in writing by the Person entitled to receive such communication as provided
above. Each such communication shall be effective (i) if delivered by hand,
when such delivery is made at the address specified in this Section 8(e), (ii)
if delivered by overnight courier service, the next Business Day after such
communication is sent to the address specified in this Section 8 or (iii) if
16
delivered by facsimile, when such facsimile is transmitted to the facsimile
number specified in this Section 8 and appropriate confirmation is received.
(f) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their successors and permitted assigns; PROVIDED that rights granted to any
Holder hereunder may only be assigned in connection with a transfer of
Registrable Securities to the assignee in accordance with the following
sentence (the "PERMITTED TRANSFEREES") and may be further assigned as so
provided by a Permitted Transferee to a subsequent Permitted Transferee. In
connection with any transfer by a Holder of Registrable Securities, the
transferring Holder may assign to the transferee all of its rights and related
obligations under this Agreement with respect to any Registrable Securities so
transferred, and upon the Company's receipt from the assignee of a completed
and executed Joinder substantially in the form of EXHIBIT B hereto, such
assignee will be deemed to also be a Holder under this Agreement. The Company
shall not assign this Agreement, in whole or in part. Any purported assignment
not in accordance with this Agreement shall be null and void.
Except as provided in Section 6, this Agreement is not intended to confer any
rights or remedies upon any Person other than the parties to this Agreement.
(g) COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto.
(h) GOVERNING LAW. This Agreement and any claim or
controversy relating hereto shall be governed by and construed in accordance
with the law of the State of New York, without regard to the conflicts of law
rules of such state that would result in the application of the law of another
jurisdiction.
(i) JURISDICTION. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated hereby or
thereby shall be brought in the United States District Court for the Southern
District of New York or any New York State court sitting in New York City, so
long as one of such courts shall have subject matter jurisdiction over such
suit, action or proceeding, and that any cause of action arising out of this
Agreement shall be deemed to have arisen from a transaction of business in the
State of New York, and each of the parties hereby irrevocably consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as provided in Section
8 shall be deemed effective service of process on such party.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
17
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(k) SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions of this
Agreement. If any provision of this Agreement, or the application of that
provision to any Person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted for that provision in
order to carry out, so far as may be valid and enforceable, the intent and
purpose of the invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of that provision to other Persons or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of that provision, or the application of that provision, in any other
jurisdiction.
(l) ENTIRE AGREEMENT. This Agreement and the Merger
Agreement constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
(m) RULES OF CONSTRUCTION. The parties to this Agreement
have been represented by counsel during the negotiation and execution of this
Agreement and waive the application of any laws or rule of construction
providing that ambiguities in any agreement or other document shall be
construed against the party drafting such agreement or other document. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(n) REMEDIES. Except as otherwise provided in this
Agreement, any and all remedies expressly conferred upon a party to this
Agreement shall be cumulative with, and not exclusive of, any other remedy
contained in this Agreement, at law or in equity. The exercise by a party to
this Agreement of any one remedy shall not preclude the exercise by it of any
other remedy.
(o) SPECIFIC PERFORMANCE. The parties to this Agreement
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties to this Agreement shall be entitled to an injunction or injunctions
(without the payment or posting of any bond) to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state having jurisdiction,
this being in addition to any other remedy to which they are entitled at law or
in equity.
(p) TERMINATION. This Agreement and the obligations of the
parties hereunder shall terminate upon the earlier of (i) the date on which the
Merger Agreement is terminated in accordance with the terms thereof or (ii) the
date on which all Registrable Securities held by all Holders (and any affiliate
of a Holder or other person with whom such Holder must aggregate sales under
Rule 144) can be sold without restriction (including volume and manner of sale
restrictions) on a single day without registration in compliance with Rule 144
and such Holder has received an opinion of counsel to the Company to that
effect; PROVIDED, that any liabilities or obligations under Section 4, 5, 6 or
7, shall survive termination and remain in effect in accordance with their
terms.
18
(q) SELLERS' REPRESENTATIVE. The Holders acknowledge and
agree to the provisions of Article IX of the Merger Agreement, which hereby are
incorporated herein by reference.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DEERFIELD TRIARC CAPITAL CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman of the Special Committee
of the Board of Directors of
Deerfield Triarc Capital Corp.
TRIARC COMPANIES, INC., as Sellers'
Representative
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman and Chief Executive
Officer
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIARC DEERFIELD HOLDINGS, LLC
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman and Chief Executive
Officer
All notices, requests and other
communications to the party above should
be sent to:
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
EXHIBIT A
ADDITIONAL REGISTRATION RIGHTS
1.1. Request for Registration.
(a) If the Company shall receive a written request from
the Holders (the "INITIATING HOLDERS") of at least twenty percent (20%) of the
Registrable Securities then outstanding, excluding for purposes of determining
such 20% any Registrable Securities held at such time by the Escrow Agent (as
defined in the Merger Agreement) (the "Escrow Shares"), that the Company file a
registration statement under the Securities Act, then the Company shall:
(i) within seven (7) days of the receipt thereof,
give written notice of such request to all Holders; and
(ii) use commercially reasonable efforts to effect
promptly, the registration under the Securities Act of all Registrable
Securities which the Holders request to be registered, subject to any
Deferral Periods, in a written request received by the Company within
fifteen (15) days of the making of the notice pursuant to Section
1.1(a)(i) of this Exhibit A.
(b) The Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.1:
(i) After the Company has effected one (1)
registration pursuant to this Section 1.1 and such registration
statement has been declared or ordered effective and has remained
effective for the applicable Effectiveness Period; PROVIDED, that if
such request pursuant to this Section 1.1 is subsequently withdrawn by
the requester in writing, it shall not be counted against the
limitation of requests set forth in this Section 1.1(c)(i);
(ii) If the Initiating Holders propose to dispose
of shares of Registrable Securities that may be immediately registered
on Form S-3 pursuant to a request made pursuant to Section 1.4 below.
1.2. Company Registration.
(a) If (but without any obligation to do so) the Company
proposes to register any of its capital stock under the Securities Act for its
own account or the account of any of its stockholders with registration rights
(other than in connection with a registration effected solely to implement an
employee benefit plan or arrangement or a business combination transaction or
any other similar transaction for which a registration statement on Form S-4
under the Securities Act or any comparable successor form is applicable), the
Company will promptly give written notice thereof to the Holders of Registrable
Securities at least twenty (20) days prior to the filing of such registration
statement, or such lesser time that is reasonable taking into account the
Company's contractual obligation to file such registration statement. Upon the
written request of each Holder given within fifteen (15) days after the giving
of such notice by the Company, the Company shall, subject to the provisions of
this Section 1.2, cause to be registered under the Securities Act in such
registration statement all of the Registrable Securities that each such Holder
has requested to be registered.
(b) In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company shall not be
required under this Section 1.2 to include any of the Holders' securities in
such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it, and then only in
such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. Regardless of any other
provision of this Section 1.2, if the underwriter advises the Company that
marketing factors require a reduction in the number of shares to be
underwritten, then the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated first, to the Company and the
Person or Persons requesting such registration (if other than the Company)
shall be entitled to participate in accordance with the relative priorities, if
any, as shall exist among them; and then second, all other holders of
securities having the right to include such securities in such registration
(including the Holders of the Registrable Securities) shall be entitled to
participate pro rata based on the number of shares requested to be sold by such
Holders. The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 1.2 prior to the effectiveness
of such registration whether or not any Holder has elected to include
securities in such registration. The registration expenses of such withdrawn
registration shall be borne by the Company in accordance with Section 5 of the
Agreement.
1.3. Form S-3 Registration.
Notwithstanding anything in Section 1.1 or Section 1.2 of this
Exhibit A to the contrary, in case the Company shall receive from the Holders
of at least twenty percent (20%) of Registrable Securities then outstanding,
excluding the Escrow Shares for purposes of such determination, a written
request or requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, and the Company is then
eligible to use Form S-3 for the resale of Registrable Securities, the Company
will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) subject to any Deferral Periods, promptly effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities
of any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; PROVIDED, that the Company shall not be obligated to
effect any such registration, qualification or compliance, pursuant to this
Section 1.3:
(i) if Form S-3 is not available for such
offering by the Holders;
(ii) if the Holders, together with the holders of
any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities at an aggregate
2
price to the public (net of any underwriters' discounts or
commissions) of less than $2.5 million; or
(iii) if the Company has effected a total of three
(3) registrations pursuant to Section 1.1 and Section 1.3 of this
Exhibit A, PROVIDED, THAT any such registration shall be deemed to
have been "effected" if the registration statement relating thereto
(A) has become or been declared or ordered effective under the
Securities Act, and any of the Registrable Securities of the
Initiating Holder(s) included in such registration have actually been
sold thereunder and (B) has remained effective for the applicable
Effectiveness Period; or
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered promptly after receipt of the request or requests
of the Holders. Registrations effected pursuant to this Section 1.3 shall not
be counted as requests for registration effected pursuant to Section 1.1 or
Section 1.2 respectively of this Exhibit A.
1.4. Obligations of the Company.
Whenever required under Sections 1.1, 1.2 or 1.3 of this
Exhibit A to effect the registration of any Registrable Securities, the Company
shall comply with the applicable obligations of the Company under the
Agreement, including Sections 2, 3, 5 and 6 of the Agreement.
3
EXHIBIT B
[FORM OF] JOINDER
[DATE]
[COMPANY]
[ADDRESS]
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement, dated as of
[?], 2007 (the "AGREEMENT"), with [BUYER] (the "Company"). Capitalized terms
used and not otherwise defined herein are used herein as defined in the
Agreement.
The undersigned ("TRANSFEREE") hereby: (i) acknowledges receipt of a
copy of the Agreement; (ii) notifies the Company that, on [DATE], Transferee
acquired from [INSERT NAME OF ASSIGNING STOCKHOLDER] [DESCRIBE THE REGISTRABLE
SECURITIES THAT WERE transferred] (the "TRANSFERRED SECURITIES") and an
assignment of such transferor's rights under the Agreement with respect and to
the Transferred Securities, and the Transferee has assumed from such transferor
the liability for any and all obligations under the Agreement arising after the
date of transfer related to the Transferred Securities; (iii) advises the
Company that, immediately after such transfer the further disposition of the
Transferred Securities is restricted under the Securities Act or subject to
volume or manner of sale limitations under Rule 144; and (iv) agrees to be
bound by all terms of the Agreement with respect to the Transferred Securities
applicable to a Holder of such Transferred Securities as if the Transferee was
an original signatory to the Agreement.
Notices to the Transferee for purposes of the Agreement may be
addressed to: [___________], [___________], Attn: [_______], Fax: [________].
This document shall be governed by, and construed in accordance with,
the laws of the State of New York, applicable to contracts executed in and to
be performed entirely within that State.
[TRANSFEREE]
[By:] _______________________
Name:
[Title:]
cc: [Transferor]
