Exhibit 4.1
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 25, 1999
among
TRIARC CONSUMER PRODUCTS GROUP, LLC
TRIARC BEVERAGE HOLDINGS CORP.,
the GUARANTORS party hereto
and
XXXXXX XXXXX and XXXXX X. MAY
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
February 25, 1999, among TRIARC CONSUMER PRODUCTS GROUP LLC, a Delaware limited
liability company ("Triarc"), TRIARC BEVERAGE HOLDINGS CORP., a Delaware
corporation (the "Co-Issuer" and, together with Triarc, the "Issuers"), each of
the GUARANTORS party hereto (the "Guarantors") and XXXXXX XXXXX and XXXXX X.
MAY.
Pursuant to the Placement Agreement dated February 18, 1999, (the
"Placement Agreement"), among the Issuers, the Guarantors party thereto and
Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxx Lufkin & Xxxxxxxx Securities
Corporation and Xxxxxxxxxxx Xxxxxxx Securities, Inc. (the "Placement Agents"),
on February 25, 1999 the Issuers sold an aggregate of $300,000,000 principal
amount of 10 1/4% Senior Subordinated Notes Due 2009 (the "Notes") to the
Placement Agents. The Issuers are jointly and severally liable for all payments
on the Notes. The Notes are unconditionally and irrevocably guaranteed on a
senior subordinated basis (the "Guarantees") as to payment of principal,
premium, if any, and interest by the Guarantors.
On February 25, 1999, Messrs. Xxxxx and May each purchased from the
Co-Issuers $10,000,000 aggregate principal amount of Notes (together with any
other Notes hereafter acquired by them, the "Affiliate Notes").
Pursuant to a Registration Rights Agreement, dated February 18,
1999, the Issuers contemplate effecting an exchange of the Notes for notes
registered under the Securities Act of 1933, as amended (the "1933 Act").
Because Messrs. Xxxxx and May are affiliates of the Issuers, they are unable to
participate in the exchange offer registration contemplated by such Registration
Rights Agreement. Accordingly, to induce Messrs. Xxxxx and May to purchase the
Affiliate Notes acquired by them, the Issuers and the Guarantors have agreed to
provide to Messrs. Xxxxx and May the registration rights set forth in this
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall have the meaning set forth in the preamble.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Affiliate Notes" shall have the meaning set forth in the preamble.
"Blockage Notice" shall have the meaning set forth in Section 3 hereof.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"Co-Issuer" shall have the meaning set forth in the preamble.
"Demand Registration" shall have the meaning set forth in Section 2
hereof.
"Guarantees" shall have the meaning set forth in the preamble.
"Guarantors" shall mean the Guarantors listed on the signature pages
hereof, and shall also include any successor to a Guarantor.
"Holder" shall mean Xxxxxx Xxxxx and Xxxxx X. May and each of their
successors, assigns and direct and indirect transferees who becomes an owner of
the Registrable Notes.
"indemnified party" shall have the meaning set forth in Section 4 hereof.
"indemnifying party" shall have the meaning set forth in Section 4
hereof.
"Indenture" shall mean the Indenture relating to the Notes (including the
Affiliate Notes), dated as of February 25, 1999 among the Issuers, the
Guarantors and The Bank of New York, as Trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Issuers" shall have the meaning set forth in the preamble and shall also
include any successor to an Issuer.
"Losses" shall have the meaning set forth in Section 4 hereof.
"Majority Holders" shall mean the Holders of 50% or more of the aggregate
principal amount of outstanding Registrable Notes; provided that whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or the Guarantors
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"Notes" shall have the meaning set forth in the preamble.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the preamble.
"Placement Agreement" shall have the meaning set forth in the preamble.
"Prospectus" shall mean the prospectus included in 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 Notes covered by a Registration Statement, and by all other
amendments and supplements to such prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Registrable Notes" shall mean the Affiliate Notes (including the
Guarantees); provided, however, that such Affiliate Notes shall cease to be
Registrable Notes upon the earliest of (i) when a Registration Statement with
respect to such Affiliate Notes shall have been declared effective under the
1933 Act and such Affiliate Notes shall have been disposed of pursuant to such
Registration Statement, (ii) when such Affiliate Notes are eligible for sale to
the public pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the 1933 Act or (iii) when such Affiliate Notes shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuers and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, 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 of
Registrable Notes), (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (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 Issuers and the Guarantors and the reasonable fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders) and (viii) the fees and disbursements of the independent
public accountants of the Issuers and the Guarantors, including the expenses of
any special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees and expenses of counsel to the
underwriters (other than fees and expenses set forth in clause (ii) above) or
the Holders (other than fees and expenses set forth in clause (vii) above) and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Issuers and the Guarantors that covers any of the Registrable Notes 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, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"TIA" shall have the meaning set forth in Section 3 hereof.
"Triarc" shall have the meaning set forth in the preamble.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"Underwriters" shall have the meaning set forth in Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Notes are sold to an Underwriter for
reoffering to the public.
2. Demand Registration.
(a) Subject to Section 2(e) below, the Majority Holders may at
any time request in writing the registration of Registrable Notes under the Act,
and under the securities or blue sky laws of any jurisdiction designated by such
holder or holders (each such registration under this Section 2(a) that satisfies
the requirements set forth in Section 2(b) is referred to herein as a
"Demand Registration"). Notwithstanding the foregoing, in no event shall
the Issuers and the Guarantors be required to effect more than two Demand
Registrations. Two or more Registration Statements filed in response to one
Demand Registration request shall be counted as one Demand Registration.
Each request for a Demand Registration by the Holders in respect thereof shall
specify the amount of the Registrable Notes proposed to be sold, the intended
method of disposition thereof and the jurisdictions in which registration is
desired. Upon a request for a Demand Registration, the Issuers shall promptly
take such steps as are necessary or appropriate to prepare a Registration
Statement providing for the registration of the Registrable Notes to be sold.
The Issuers shall be entitled to include in any registration statement and
offering made pursuant to a Demand Registration Notes held by Persons other than
the Holders.
Subject to their ability to issue a Blockage Notice, the Issuers and
the Guarantors agree to use their best efforts to keep the Registration
Statement continuously effective until 24 months from the date such Registration
Statement is declared effective by SEC or such shorter period that will
terminate when all of the Registrable Notes covered by the Registration
Statement have been sold pursuant to the Registration Statement or otherwise
cease to be Registrable Notes. The Issuers and the Guarantors further agree to
supplement or amend the Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by them for
such Registration Statement or by the 1933 Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and to use their
best efforts to cause any such amendment to become effective and such
Registration Statement to become usable as soon as thereafter practicable. The
Issuers and the Guarantors agree to furnish to the Holders participating in such
Demand Registration copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(b) The Issuers and the Guarantors shall use their best
efforts to cause any such Registration Statement to become effective not later
than ninety (90) days after it receives a request under Section 2(a). A
registration requested pursuant to Section 2(a) hereof shall not count as one of
the [two] demands to which the Holders are entitled thereunder unless such
registration statement is declared effective and remains effective for the
period required under Section 2(a) hereof.
(c) The Issuers and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a). Each
Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's
Registrable Notes pursuant to the Registration Statement.
(d) Without limiting the remedies available to the Holders,
each of the Issuers and the Guarantors acknowledges that any failure by it to
comply with its obligations under Section 2(a) hereof may result in material
irreparable injury to 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, any Holder may obtain such relief as may
be required to specifically enforce such Issuer's or Guarantor's obligations
under Section 2(a) hereof.
(e) Each registration in respect of a Demand Registration must
include Registrable Notes having an aggregate principal amount of at least
$1,000,000 (provided that the limitation set forth in this clause [(i)] shall
not be in effect at any time the Holders' Registrable Notes are not able to be
sold under Rule 144 under the Act solely because of the Issuers' or the
Guarantors' failure to comply with the information requirements thereunder).
3. Registration Procedures. In connection with the obligations of
the Issuers and the Guarantors with respect to the Registration Statements
pursuant to Section 2(a) and hereof, the Issuers and the Guarantors shall as
expeditiously as practicable:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the 1933 Act, which form (x) shall be selected by the
Issuers and the Guarantors and (y) shall be available for the sale of the
Registrable Notes by the Holders and (z) shall comply as to form in all material
respects with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and use their best efforts
to cause such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) subject to their ability to issue a Blockage 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 effective for the applicable period required under 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
1933 Act; and to keep each Prospectus current during the period described under
Section 4(3) and Rule 174 under the 1933 Act that is applicable to transactions
by brokers or dealers with respect to the Registrable Notes;
(c) furnish to each Holder with Registrable Notes included in
such registration and to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Registrable Notes, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
Underwriter may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Notes; and, subject to the penultimate
paragraph of this Section 3, the Issuers and the Guarantors consent to the use
of such Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the Holders and any such Underwriters in connection
with the offering and sale of the Registrable Notes covered by and in the manner
described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use their best efforts to register or qualify the
Registrable Notes under all applicable state securities or "blue sky" laws of
such jurisdictions in the United States as any Holder of Registrable Notes
covered by a Registration Statement shall reasonably request in writing, to
cooperate with such Holders in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of such
Registrable Notes owned by such Holder; provided, however, that no Issuer or
Guarantor shall 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 Section 3(d), (ii) file any general consent to
service of process or (iii) subject itself to taxation in any such jurisdiction
if it is not so subject;
(e) notify each Holder with Registrable Notes included in such
registration and counsel for such Holders promptly and, if requested by any such
Holder or counsel, confirm such advice in writing (i) when a Registration
Statement has been filed becomes effective and when any post-effective amendment
thereto has been filed and becomes effective, (ii) of any request by the SEC or
any state securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the Registration
Statement has become effective, (iii) 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,
(iv) if, between the effective date of a Registration Statement and the closing
of any sale of Registrable Notes covered thereby, the representations and
warranties of any Issuer or Guarantor contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to the
offering cease to be true and correct in all material respects or if any Issuer
or Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Notes for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (v) of the happening of
any event during the period a Registration Statement is effective
which makes any statement of material fact made in such Registration Statement
or the related Prospectus untrue in any material respect or which requires the
making of any changes in such Registration Statement or Prospectus in order to
make the statements therein not misleading and (vi) of any determination by an
Issuer or Guarantor that a post-effective amendment to a Registration Statement
would be appropriate;
(f) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) furnish to each Holder with Registrable Notes included in
such registration, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with the Holders of Registrable Notes to
facilitate the timely preparation and delivery of certificates representing
Registrable Notes to be sold and not bearing any restrictive legends and enable
such Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the Holders may
reasonably request at least one Business Day prior to the closing of any sale of
Registrable Notes;
(i) upon the occurrence of any event contemplated by Section
3(e)(v) hereof, subject to the ability of the Issuers and the Guarantors to
issue a Blockage Notice, use their best efforts to prepare and file with the SEC
a supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Issuers and the Guarantors agree to notify the Holders with
Registrable Notes included in such registation to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and the
Holders hereby agree to suspend use of the Prospectus until the Issuers and the
Guarantors have amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) 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 or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Holders and their counsel and make such of the representatives of the
Issuers and the Guarantors as shall be reasonably requested by the Holders or
their counsel available for discussion of such document, and shall not at any
time file or make any amendment to the Registration Statement, any Prospectus or
any amendment of or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Holders and their counsel shall not have
previously been advised and furnished a copy or to which the Majority Holders or
their counsel shall reasonably object;
(k) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Registrable Notes, 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 TIA and execute, and use their best 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;
(l) make available for inspection by a representative of the
Holders of the Registrable Notes, any Underwriter participating in any
disposition pursuant to a Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of the Issuers
and the Guarantors, and cause the respective officers, directors and employees
of the Issuers and the Guarantors to supply all information reasonably requested
by any such representative, Underwriter, attorney or accountant in connection
with a Registration Statement; provided that such persons shall first agree in
writing with the Issuers that any information that is reasonably and in good
faith designated by the Issuers in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons unless
(i) disclosure of such information is required by court or administrative order
is necessary to respond to inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of the
Registration Statement or the use of any Prospectus) (iii) such information
becomes generally available to the public other than as a result of 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 Issuers and such
source is not bound by a confidentiality agreement or other obligation not to
disclose such information;
(m) use their best efforts to cause the Registrable Notes to
be rated by two nationally recognized statistical rating organizations (as such
term is defined in Rule 436(g)(2) under the 0000 Xxx);
(n) if reasonably requested by any Holder of Registrable Notes
covered by a Registration Statement, (i) promptly incorporate 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 (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as any Issuer or Guarantor has received notification of the
matters to be incorporated in such filing; provided that they shall not required
to take any such action that is not, in the opinion of counsel for the Issuers
and the Guarantors, in compliance with applicable law; and
(o) enter into such customary agreements and take all such
other customary and appropriate actions in connection therewith (including those
requested by the Holders of a majority in principal amount of Registrable Notes
included in such registration) in order to expedite or facilitate the
disposition of such Registrable Notes including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Notes with respect to the business of the Issuers, the Guarantors
and their respective subsidiaries, 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, (ii) obtain opinions of counsel to the Issuers 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 Holder and Underwriter, if any, of Registrable Notes, covering
the matters customarily covered in opinions requested in underwritten offerings,
(iii) obtain "cold comfort" letters from the independent certified public
accountants of the Issuers and the Guarantors (and, if necessary, any other
certified public accountant of any subsidiary of any Issuer or Guarantor, or of
any business acquired by any Issuer or Guarantor for which financial statements
and financial data are or are required to be included in the Registration
Statement) addressed to each Holder and Underwriter of Registrable Notes, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority of the Registrable Notes
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 Issuers and the Guarantors made pursuant
to clause (i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement.
The Issuers and the Guarantors (as a condition to such Holder's
participation in a Registration Statement) may require each Holder to furnish to
them such information regarding the Holder and the proposed distribution by such
Holder of Registrable Notes as they may from time to time reasonably request in
writing.
Each Holder agrees that, upon receipt of any notice from an Issuer
or Guarantor of the happening of any event of the kind described in Section
3(e)(v) hereof (a "Blockage Notice"), such Holder will forthwith discontinue
disposition of Registrable Notes pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, and, if so directed by such Issuer or
Guarantor, such Holder will deliver to such Issuer or Guarantor (at its expense)
all copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Notes current
at the time of receipt of such notice. Each Holder agrees to keep confidential
the cause of any such notice of suspension or other information provided to them
by an Issuer or Guarantor with respect thereto. If an Issuer or Guarantor shall
give any such notice to suspend the disposition of Registrable Notes pursuant to
a Registration Statement, the Issuers and the Guarantors shall extend the period
during which the 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
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions. Such notice may be given only twice during any 365
day period and any such suspensions may not exceed 30 days for each suspension
and there may not be more than two suspensions in effect during any 365 day
period.
The Holders who desire to do so may sell Registrable Notes in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Holders of a majority principal
amount of the Registrable Notes included in such offering with the prior written
consent of the Issuers, which consent shall not be unreasonably with-
held. No Holder may participate in any Underwritten Offering hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Notes on the
basis provided in any underwriting agreements approved by the Holders of a
majority principal amount of the Registrable Notes included in such offering and
(b) completes and executes all customary and appropriate questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting agreements.
4. Indemnification and Contribution.
(a) The Issuers and the Guarantors, jointly and severally,
agree to indemnify and hold harmless each Holder and each Person, if any, who
controls any Holder within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act, or is under common control with, or is controlled
by, any Holder, from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
by any Holder or any such controlling or affiliated Person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Registrable
Notes were registered under the 1933 Act, including all documents incorporated
therein by reference, 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, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended or
supplemented if an Issuer or Guarantor shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Holder furnished to the Issuers in writing through any selling
Holder expressly for use therein; provided that the Issuers and the Guarantors
shall not be liable to any Holder or any such controlling or affiliated Person
to the extent that any such losses, claims, damages or liabilities (the
"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 (A)(i) such
Holder was required by law to send or deliver, and failed to send or deliver, a
copy of the Prospectus with or prior to delivery of written confirmation of the
sale by such Holder to the person asserting the claims from which such Losses
arise and (ii) the Prospectus would have corrected such untrue statement or
alleged untrue statement or omission or alleged omission, (B)(x) such untrue
statement or alleged untrue statement or omission or alleged omission is
corrected in an amendment to the Prospectus and (y) having been
previously furnished by or on behalf of the Issuers and the
Guarantors with copies of the Prospectus as so amended or supplemented, such
Holder failed to send or deliver a copy of such amendment to the Prospectus with
or prior to the delivery of written confirmation of the sale of a Registrable
Note to the person asserting the claim from which such Losses arise or (C)(i)
such Holder disposed of Registrable Notes 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 deliver, a Prospectus to such
person in connection with such disposition, (ii) such Holder received a Blockage
Notice in writing at least four Business Days prior to the date of such
disposition and (iii) such untrue statement or alleged untrue statement or
omission or alleged omission was the reason for the Blockage Notice. In
connection with any Underwritten Offering permitted by Section 3, the Issuers
and the Guarantors will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls such
Persons (within the meaning of the 1933 Act and the 0000 Xxx) to the same extent
as provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
(b) (i) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers and the Guarantors, and each of their
respective directors, officers who sign the Registration Statement and each
Person, if any, who controls any Issuer or Guarantor, within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Issuers and the Guarantors to the
Holders, but only (i) with reference to information relating to such Holder
furnished to the Issuers in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) and (ii) with respect to any Losses that may
arise as a result of the disposition by such Holder of Registrable Notes to the
person asserting the claim from which such Losses arise pursuant to a
Registration Statement 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 Blockage Notice with respect to such Prospectus in writing at
least four Business Days 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 Blockage Notice.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to either paragraph (a) or paragraph
(b) above, such Person or Persons (the "indemnified party") shall promptly
notify the Person or Persons 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 and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Issuers and the Guarantors, its
directors, its officers who sign the Registration Statement and each Person, if
any, who controls any Issuer or Guarantor within the meaning of either such
Section and (b) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all Persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other cases, such firm
shall be designated by the Issuers. 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 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 such 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) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 4 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, 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, claims, damages or
liabilities in such proportion as is appropriate to reflect 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 omis-
sions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Issuers and the Guarantors, on the one hand, and the Holders, 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 an Issuer
or Guarantor or by the Holders 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
Section 4(d) are several in proportion to the respective principal amount of
Registrable Notes of such Holder that were registered pursuant to a Registration
Statement.
(e) Each Issuer, Guarantor and Holder agrees that it would not
be just or equitable if contribution pursuant to this Section 4 were determined
by pro rata allocation 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 party 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 legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Notes were 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 0000
Xxx) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 4
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.
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
any Holder or any Person controlling any Holder, or by or on behalf of the
Issuers and the Guarantors, their officers or directors or any Person
controlling an Issuer or Guarantor and (iii) any sale of Registrable Notes
pursuant to a Registration Statement.
5. Miscellaneous.
(a) No Inconsistent Agreements. None of the Issuers or the
Guarantors has entered into, and on or after the date of this Agreement will not
enter into, any agreement which is inconsistent with the rights granted to the
Holders of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. 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
other issued and outstanding securities of any Issuer or Guarantor under any
such agreements.
(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 Issuers and the Guarantors have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consent to any departure from the provisions
of Section 4 hereof shall be effective as against any Holder of Registrable
Notes unless consented to in writing by such Holder.
(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 Issuers by means of a notice given in accordance with the provisions of this
Section 5(c), and (ii) if to the Issuers and the Guarantors, initially at the
address of the Issuers set forth in the Placement Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 5(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. If any transferee of any Holder shall
acquire Registrable Notes, in any manner, whether by operation of law or
otherwise, such Registrable Notes shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Notes 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.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by the
laws of the State of New York.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIARC CONSUMER PRODUCTS
GROUP, LLC
By XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
TRIARC BEVERAGE HOLDINGS
CORP.
By XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
MISTIC BRANDS, INC., as a Subsidiary
Guarantor
By: XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
SNAPPLE BEVERAGE CORP., as a
Subsidiary Guarantor
By: XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
SNAPPLE INTERNATIONAL CORP., as
a Subsidiary Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
SNAPPLE WORLDWIDE CORP., as a
Subsidiary Guarantor
By: STUART I, XXXXX
Name: Stuart I, Xxxxx
Title: Vice President
SNAPPLE FINANCE CORP., as a
Subsidiary Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
PACIFIC SNAPPLE DISTRIBUTORS,
INC., as a Subsidiary Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
MR. NATURAL, INC., as a Subsidiary
Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
SNAPPLE CARIBBEAN CORP., as a
Subsidiary Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
KELRAE, INC., as a Subsidiary
Guarantor
By: XXXX X. XXXXXX, XX.
Name: Xxxx X. Xxxxxx, Xx.
Title: President
RC/ARBY'S CORPORATION, as a
Subsidiary Guarantor
By: XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
RCAC ASSET MANAGEMENT, INC., as
a Subsidiary Guarantor
By: XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. XxXxxxxx
Title: Senior Vice President
ARBY'S INC., as a Subsidiary Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
ARBY'S BUILDING AND
CONSTRUCTION CO., as a Subsidiary
Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
TJ HOLDINGS COMPANY, INC., as a
Subsidiary Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
ARBY'S RESTAURANT
CONSTRUCTION COMPANY, as a
Subsidiary Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
ARBY'S RESTAURANTS, INC., as a
Subsidiary Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
ARHC, LLC, as a Subsidiary Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
RC-11, INC., as a Subsidiary Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
RC LEASING, INC., as a Subsidiary
Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
ROYAL CROWN BOTTLING
COMPANY OF TEXAS, as a Subsidiary
Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
ROYAL CROWN COMPANY, INC., as a
Subsidiary Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
RETAILER CONCENTRATE
PRODUCTS, INC., as a Subsidiary
Guarantor
By: XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. XxXxxxxx
Title: Senior Vice President
TRIBEV CORPORATION, as a Subsidiary
Guarantor
By: XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. XxXxxxxx
Title: Senior Vice President
CABLE CAR BEVERAGE
CORPORATION, as a Subsidiary
Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
OLD SAN XXXXXXXXX XXXXXXX, INC.,
as a Subsidiary Guarantor
By: STUART I, XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
FOUNTAIN CLASSICS, INC., as a
Subsidiary Guarantor
By: XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXX
XXXXX X. MAY
