Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
Dated as of December 21, 2001
Among
COTT BEVERAGES INC.
COTT CORPORATION
COTT HOLDINGS INC.
COTT USA CORP.
COTT VENDING INC.
INTERIM BCB, LLC
CONCORD HOLDING GP INC.
CONCORD HOLDING LP INC.
CONCORD BEVERAGE LP
and
XXXXXX BROTHERS INC.
BMO XXXXXXX XXXXX CORP.
CIBC WORLD MARKETS CORP.
as Initial Purchasers
TABLE OF CONTENTS
PAGE
----
1. Definitions........................................................ 1
2. Securities Subject to This Agreement............................... 3
3. Registered Exchange Offer.......................................... 4
4. Shelf Registration................................................. 5
5. Liquidated Damages................................................. 6
6. Registration Procedures............................................ 8
7. Registration Expenses.............................................. 16
8. Indemnification and Contribution................................... 17
9. Rule 144A.......................................................... 20
10. Participation in Underwritten Registrations........................ 20
11. Selection of Underwriters.......................................... 20
12. Miscellaneous...................................................... 20
-i-
This Registration Rights Agreement (this "Agreement") is made
and entered into as of December 21, 2001 by and among Cott Beverages Inc., a
Georgia corporation (the "Company"), Cott Corporation, a Canada corporation,
Cott Holdings Inc., a Delaware corporation and a Nova Scotia corporation
("CHI"), Cott USA Corp., a Georgia corporation ("CUC"), Cott Vending Inc., a
Delaware corporation ("CVI"), Interim BCB, LLC, a Delaware limited liability
company ("Interim"), Concord Holding GP Inc., a Delaware corporation ("CHG"),
Concord Holding LP Inc., a Delaware corporation ("CHL"), and Concord Beverage
LP, a Delaware limited partnership ("CB" and, together with Cott, CHI, CUC, CVI,
Interim, CHG, CHL and CB, the "Guarantors," and each, a "Guarantor"), and Xxxxxx
Brothers Inc., BMO Xxxxxxx Xxxxx Corp. and CIBC World Markets Corp. (the
"Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated December 18, 2001, by and among the Company, the Guarantors and
the Initial Purchasers (the "Purchase Agreement"), which provides for the sale
by the Company to the Initial Purchasers of $275,000,000 aggregate principal
amount of the Company's 8% Senior Subordinated Notes due 2011 (the "Notes"). The
Notes will be guaranteed on a senior subordinated basis by guarantees (the
"Guarantees") issued by the Guarantors. The Notes and the Guarantees are
collectively referred to herein as the "Securities." In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company and the
Guarantors have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the Initial Purchasers' obligations to purchase the Securities
under the Purchase Agreement. Capitalized terms used but not specifically
defined herein have the respective meanings ascribed thereto in the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Blackout Period: As defined in Section 5(a) hereof.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date on which the Securities were
sold.
Commission: The United States Securities and Exchange
Commission.
Consummate: A registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon the occurrence
of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the New Securities to
be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (iii) the delivery by the
Company of the New Securities in the same aggregate principal amount as
the aggregate principal amount of Transfer Restricted Securities that
were validly tendered by Holders thereof pursuant to the Exchange
Offer.
2
Effectiveness Target Date: As defined in Section 5(a)
hereof.
Exchange Act: The United States Securities Exchange
Act of 1934, as amended.
Exchange Offer: The registration by the Company under
the Securities Act of the New Securities pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such
Holders for New Securities in an aggregate principal amount equal to
the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the
Prospectus which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act and to certain non-U.S. persons.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of December 21,
2001, among the Company, the Guarantors and HSBC Bank USA, as trustee
(the "Trustee"), pursuant to which the Securities are to be issued, as
such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: Xxxxxx Brothers Inc., BMO Xxxxxxx
Xxxxx Corp. and CIBC World Markets Corp.
Liquidated Damages: As defined in Section 5(a)
hereof.
NASD: National Association of Securities Dealers,
Inc.
New Securities: The Securities to be issued pursuant
to the Indenture in the Exchange Offer.
Participant: As defined in Section 8(a) hereof.
Person: An individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
3
Registration Default: As defined in Section 5(a)
hereof.
Registration Statement: Any registration statement of
the Company relating to (a) an offering of New Securities pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in either
case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities Act: The Unites States Securities Act of
1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a)
hereof.
Shelf Registration Statement: As defined in Section
4(a) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb), as amended.
Transfer Restricted Securities: Each Security, until
the earliest to occur of (a) the date on which such Security has been
exchanged by a person other than a Broker-Dealer for a New Security in
the Exchange Offer, (b) following the exchange by a Broker-Dealer in
the Exchange Offer of a Security for a New Security, the date on which
such New Security is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (c)
the date on which such Security has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (d) the date on which such Security would be
eligible to be distributed to the public by a non-affiliate pursuant to
Rule 144(k) under the Securities Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities (each
such Person, a "Holder") whenever such Person owns Transfer Restricted
Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be
permissible under applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied with) or
one of the events set forth in Section 4(a)(ii) has occurred,
4
the Company and the Guarantors shall (i) cause to be filed with the
Commission promptly after the Closing Date, but in no event later than
90 days after the Closing Date, a Registration Statement under the
Securities Act relating to the New Securities and the Exchange Offer,
(ii) use their respective best efforts to cause such Registration
Statement to become effective no later than 150 days after the Closing
Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities Act
and (C) cause all necessary filings in connection with the registration
and qualification of the New Securities to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) unless the Exchange Offer would not be
permitted by applicable law or Commission policy, the Company will
commence the Exchange Offer and use their best efforts to issue on or
prior to 30 business days after the date on which such Registration
Statement was declared effective by the Commission, New Securities in
exchange for all Securities tendered prior thereto in the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the New Securities to be offered in exchange for the
Transfer Restricted Securities and to permit resales of New Securities
held by Broker-Dealers as contemplated by Section 3(c) below. The 90,
150 and 30 business day periods referred to in (i), (ii) and (iv) of
this Section 3(a) shall not include any period during which the Company
is pursuing a Commission ruling pursuant to Section 6(a)(i) below.
(b) The Company and the Guarantors shall use their
best efforts to cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a
period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20
business days. The Company shall and the Guarantors shall cause the
Exchange Offer to comply in all material respects with all applicable
federal and state securities laws. No securities other than the New
Securities shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their best efforts
to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 business days
thereafter.
(c) The Company and the Guarantors shall indicate in
a "Plan of Distribution" section contained in the Prospectus contained
in the Exchange Offer Registration Statement that any Broker-Dealer who
holds Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making activities or
other trading activities (other than Transfer Restricted Securities
acquired directly from the Company), may exchange such Securities
pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of
the Securities Act in connection with any resales of the New Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of
5
Distribution" section shall also contain all other information with
respect to such resales by Broker-Dealers that the Commission may
require in order to permit such resales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or
disclose the amount of New Securities held by any such Broker-Dealer
except to the extent required by the Commission.
Subject to the last paragraph of Section 6(c) below, the
Company and the Guarantors shall use their best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of New Securities acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period of 90 days from the
date on which the Exchange Offer Registration Statement is declared effective.
The Company and the Guarantors shall provide sufficient copies
of the latest version of such Prospectus to Broker-Dealers promptly upon request
at any time during such 90-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the
Guarantors are not required to file an Exchange Offer Registration
Statement or to Consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy (after
the procedures set forth in Section 6(a) below have been complied with)
or (ii) any Holder of Transfer Restricted Securities that is a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) shall notify the Company prior to the 20th day
following the Consummation of the Exchange Offer (A) that such Holder
is prohibited by applicable law or Commission policy from participating
in the Exchange Offer or (B) that such Holder may not resell the New
Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder or (C) that such Holder is a
Broker-Dealer and holds Securities acquired directly from the Company
or one of its affiliates, then the Company and the Guarantors shall in
lieu of, or in the event of (ii) above, in addition to, effecting the
registration of the New Securities pursuant to the Exchange Offer
Registration Statement use their respective best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which
may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earlier to occur of (1) the
30th day after the date on which the Company determines that
it is not required to file the Exchange Offer Registration
Statement or (2) the 30th day after the date on which the
Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above (such earlier
date being the "Shelf Filing Deadline"), which Shelf
6
Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement
to be declared effective by the Commission on or before the
90th day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their best efforts to keep
such Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available for
resales of Securities by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a) and to ensure that it
conforms with the requirements of this Agreement, the Securities Act
and the policies, rules and regulations of the Commission as announced
from time to time, for a period ending on the second anniversary of the
Closing Date; provided that to the extent any Blackout Period occurs
during such two-year period, the Company and the Guarantors shall be
required to keep the Shelf Registration Statement effective after such
second anniversary for a period of time equal to the total number of
days in all Blackout Periods.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section
5 hereof unless and until such Holder shall have used its best efforts
to provide all such reasonably requested information. Each Holder as to
which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
5. Liquidated Damages.
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (except as permitted
in paragraph (b), such period of time during which any such Registration
Statement is
7
not effective or any such Registration Statement or the related prospectus is
not usable being referred to as a "Blackout Period") (each such event referred
to in clauses (a) through (d), a "Registration Default"), additional cash
interest ("Liquidated Damages") shall accrue to each Holder of the Securities
with respect to the first 90-day period commencing upon the occurrence of such
Registration Default in an amount equal to $.05 per week per $1,000 principal
amount of Securities held by such Holder. The amount of Liquidated Damages will
increase by an additional $.05 per week per $1,000 principal amount of
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of Liquidated Damages for all
Registration Defaults of $.50 per week per $1,000 principal amount of
Securities. All accrued Liquidated Damages shall be paid to Holders by the
Company and the Guarantors in the same manner as interest is paid pursuant to
the Indenture. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of Liquidated Damages
with respect to such Transfer Restricted Securities will cease.
(b) A Registration Default referred to in Section 5(a)(d)
shall be deemed not to have occurred and be continuing in relation to a
Registration Statement or the related Prospectus if (i) the Blackout Period has
occurred solely as a result of (x) the filing of a post-effective amendment to
such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) the occurrence of other material events with
respect to the Company that would need to be described in such Registration
Statement or the related Prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement
(including by way of filing documents under the Exchange Act which are
incorporated by reference into the Registration Statement) such Registration
Statement and the related Prospectus to describe such events; provided, however,
that in any case if such Blackout Periods occur for more than 60 days in the
aggregate in any 12-month period, a Registration Default shall be deemed to have
occurred on the 61st day and Liquidate Damages shall be payable in accordance
with the above paragraph from the day such Registration Default occurs until
such Registration Default is cured or until the Company is no longer required
pursuant to this Agreement to keep such Registration Statement effective or such
Registration Statement or the related Prospectus usable; provided, further, that
in no event shall the Company be able to invoke more than three Blackout Periods
in any 12-month period and in no event shall the total of all Blackout Periods
exceed 60 days in the aggregate of any 12-month period.
All payment obligations of the Company and the Guarantors set
forth in the preceding paragraph that have accrued and are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall have been
satisfied in full.
(c) The Company and the Guarantors shall notify the Trustee
within one business day after each and every date on which an event occurs in
respect of which Liquidated Damages are required to be paid. Liquidated Damages
shall be paid by depositing Liquidated Damages with the Trustee, in trust, for
the benefit of the Holders of the Securities, on or before the applicable
Interest Payment Date (as defined in the Indenture) (whether or not any payment
8
other than Liquidated Damages is payable on such Securities), in immediately
available funds in sums sufficient to pay the Liquidated Damages then due to
such Holders. Each obligation to pay Liquidated Damages shall be deemed to
accrue from the applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Company and the Guarantors
shall comply with all of the provisions of Section 6(c) below, shall
use their best efforts to effect such exchange to permit the sale of
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and shall comply
with all of the following provisions:
(i) If in the reasonable opinion of counsel
to the Company and the Guarantors there is a question as to
whether the Exchange Offer is permitted by applicable law, the
Company and the Guarantors hereby agree to seek a no-action
letter or other favorable decision from the Commission
allowing the Company to Consummate an Exchange Offer for such
Securities. The Company and the Guarantors hereby agree to
pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.
The Company and the Guarantors hereby agree, however, to (A)
participate in telephonic conferences with the Commission, (B)
deliver to the Commission staff an analysis prepared by
counsel to the Company and the Guarantors setting forth the
legal bases, if any, upon which such counsel has concluded
that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution (which need not be favorable)
by the Commission staff of such submission.
(ii) As a condition to its participation in
the Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation
thereof, a written representation to the Company and the
Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of
the Company, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the New Securities
to be issued in the Exchange Offer and (C) it is acquiring the
New Securities in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities
shall otherwise cooperate in the Company's and the Guarantors'
preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange
Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-
9
action letters (including Xxxxx & Xxxx LLP (available February
7, 1997), and any no-action letter obtained pursuant to clause
(i) above) and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of New Securities obtained
by such Holder in exchange for Securities acquired by such
Holder directly from the Company.
(iii) Prior to the effectiveness of the
Exchange Offer Registration Statement, the Company and the
Guarantors shall provide a supplemental letter to the
Commission (A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position of
the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991), Xxxxx & Wood LLP (available
February 7, 1997) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including a
representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person
to distribute the New Securities to be received in the
Exchange Offer and that, to the best of the Company's and each
Guarantor's information and belief, each Holder participating
in the Exchange Offer is acquiring the New Securities in its
ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the New Securities received in the Exchange
Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company and the Guarantors will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof within the time periods and otherwise
in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Securities by Broker-Dealers), the Company and the Guarantors shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to
10
be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company and the
Guarantors shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B),
use their reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Securities Act in
a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) in the case of a Shelf Registration Statement,
advise the underwriter(s), if any, and selling Holders as promptly as
practicable and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes, or (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made
in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and the Guarantors
shall use their best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
11
(iv) in the case of a Shelf Registration Statement,
furnish to each of the selling or exchanging Holders that are Initial
Purchasers and each of the underwriter(s), if any, before filing with
the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement, if any), which documents will be subject to the review of
such Holders and underwriter(s), if any, for a period of at least five
business days, and neither the Company nor any Guarantor will file any
such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which selling Holders
shall reasonably object within five business days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) in the case of a Shelf Registration Statement,
make available at reasonable times for inspection at the Company's
headquarters by the selling Holders, any underwriter participating in
any disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantors and cause
the Company's and the Guarantors' officers, directors, managers and
employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to
its effectiveness;
(vi) in the case of a Shelf Registration Statement,
if requested by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted 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 the
Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment but in any event
within 5 business days after such notification;
(vii) cause the Transfer Restricted Securities
covered by the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Securities covered thereby or the
underwriter(s), if any;
12
(viii) in the case of a Shelf Registration Statement,
furnish to each selling Holder and each of the underwriter(s), if any,
without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein, if any, and
all exhibits (other than exhibits incorporated therein by reference
unless requested in writing by such Holder) ;
(ix) in the case of a Shelf Registration Statement,
deliver to each selling Holder and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company and the Guarantors hereby
consent to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s),
if any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(x) in the case of a Shelf Registration Statement,
enter into such agreements (including an underwriting agreement) and
make such representations and warranties, and take all such other
actions in connection therewith, in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such
extent as may be requested by any purchaser or by any Holder of
Transfer Restricted Securities or underwriter, if any, in connection
with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement; and in connection with an Underwritten
Registration, the Company and the Guarantors shall:
(A) upon request, furnish (or in the case of
paragraphs (2) and (3), use its reasonable best efforts to
furnish) to each selling Holder and each underwriter, if any,
in such substance and scope as they may request and as are
customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the effectiveness of
the Shelf Registration Statement:
(1) a certificate, dated the date
of the effectiveness of the Shelf Registration
Statement, signed by (y) the Chairman of the Board,
its President or a Vice President and (z) the Chief
Financial Officer of the Company and each of the
Guarantors, confirming, as of the date thereof, such
matters as such parties may reasonably request;
(2) an opinion, dated the date of
the effectiveness of the Shelf Registration
Statement, of counsel for the Company and the
Guarantors, covering such matters as such parties may
reasonably request, and in any event including a
statement to the effect that such counsel has
participated in
13
conferences with officers and other representatives
of the Company and the Guarantors, representatives of
the independent public accountants for the Company,
the Initial Purchasers' representatives and the
Initial Purchasers' counsel in connection with the
preparation of such Registration Statement and the
related Prospectus and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements, and that such counsel
advises that, on the basis of the foregoing (relying
as to materiality to a large extent upon facts
provided to such counsel by officers and other
representatives of the Company and the Guarantors and
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became
effective, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or that the
Prospectus contained in such Registration Statement
as of its date, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial and statistical data
included in any Registration Statement contemplated
by this Agreement or the related Prospectus; and
(3) a customary comfort letter,
dated the date of the effectiveness of the Shelf
Registration Statement, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings.
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said
Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company and the
Guarantors pursuant to this clause (xi), if any.
14
If at any time the representations and warranties of
the Company or the Guarantors contemplated in clause (A)(1) above cease
to be true and correct, the Company or the Guarantors shall so advise
the Initial Purchasers and the underwriter(s), if any, and each selling
Holder promptly and, if requested by such Persons, shall confirm such
advice in writing.
(xi) in the case of a Shelf Registration Statement,
prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s) may reasonably request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the Shelf Registration Statement; provided, however, that the Company
and the Guarantors shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any
action that would subject it to service of process in suits or to
taxation in any jurisdiction where it is not now so subject;
(xii) in the case of a Shelf Registration Statement,
shall issue, upon the request of any Holder of Securities covered by
the Shelf Registration Statement, New Securities in the same amount as
the Securities surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder, such New Securities to be
registered in the name of such Holder or in the name of the
purchaser(s) of such Securities, as the case may be; in return, the
Securities held by such Holder shall be surrendered to the Company for
cancellation;
(xiii) in the case of sales made pursuant to a Shelf
Registration Statement, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xiv) use their best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xv) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred as soon as is reasonably
practicable, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other
15
required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(xvi) obtain CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide certificates for the Transfer
Restricted Securities;
(xvii) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use their best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities; provided, however,
that the Company and the Guarantors shall not be required to register
or qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to service of process in suits
or to taxation, other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where it is not now so
subject;
(xviii) otherwise use their best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earning statement meeting the requirements of Rule 158
under the Securities Act (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a firm
or best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of
the Registration Statement;
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first Registration
Statement required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the Holders of Securities to effect such
changes to the Indenture as may be required for such 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 that
may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
16
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company each Holder
will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Securities that was
current at the time of receipt of such notice. In the event the Company
shall give any such notice, the time period regarding the effectiveness
of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof or shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will be
borne by the Company and the Guarantors, regardless of whether a
Registration Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including filings
made by any purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the
NASD)); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing certificates for the New Securities to be
issued in the Exchange Offer and printing of Prospectuses), and
associated messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company and the Guarantors and, in
the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders in an amount not to exceed
$50,000; (v) all application and filing fees in connection with listing
Securities on a national securities exchange or automated quotation
system, and the obtaining of a rating of the Securities, if applicable;
and (vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company and the Guarantors will, in any event,
bear their internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Company or any Guarantor. Except as provided in this Section 7, the
Holders will pay all of their costs and expenses, including fees and
disbursements of their counsel.
17
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or any Initial
Purchaser, as applicable, who seeks to sell New Securities, the Company and each
Guarantor shall indemnify and hold harmless each Holder of Transfer Restricted
Securities included within any such Shelf Registration Statement and each
participating Broker-Dealer or Initial Purchaser selling New Securities, and
each person, if any, who controls any such person within the meaning of Section
15 of the Securities Act (each, a "Participant") from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Securities) to which such Participant or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Participant promptly upon demand for any legal or other expenses reasonably
incurred by such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) the Company and the
Guarantors shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any such Registration Statement or any prospectus forming part thereof
or in any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Participant
specifically for inclusion therein; and provided further that as to any
preliminary Prospectus, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of any such Participant or any controlling person
of such Participant on account of any loss, claim, damage, liability or action
arising from the sale of the New Securities to any person by that Participant if
(i) that Participant failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time required by
the Securities Act and (ii) the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact in such
preliminary Prospectus was corrected in the Prospectus, unless, in each case,
such failure resulted from non-compliance by the Company or any Guarantor with
Section 6(c) hereof. The foregoing indemnity agreement is in addition to any
liability which the Company and the Guarantors may otherwise have to any
Participant or to any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company, each Guarantor, each of their
respective directors, officers, employees or agents and each person, if any, who
controls the Company or any Guarantor within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company, such Guarantor
or any such director, officer, employees or agents or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
18
in any preliminary Prospectus, Registration Statement or Prospectus or in any
amendment or supplement thereto or (ii) the 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 in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of that Participant specifically for inclusion
therein, and shall reimburse the Company, such Guarantor and any such director,
officer, employee or agent or controlling person for any legal or other expenses
reasonably incurred by the Company, such Guarantor or any such director,
officer, employee or agent or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Participant may
otherwise have to the Company, the Guarantors or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall have notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ separate counsel to
represent jointly the indemnified party and those other Participants and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Participants against the indemnifying party under this Section 8 if, in
the reasonable judgment of the indemnified party it is advisable for the
indemnified party and those Participants, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the indemnifying
party. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to local counsel). Each
indemnified party, as a condition of the indemnity agreements contained in
Section 8, shall use its best efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each
19
indemnified party from all liability arising out of such claim, action, suit or
proceeding or (ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably withheld),
but if settled with its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the Company
and the Guarantors on the one hand and the Participants on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Guarantors or the Participants, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Guarantors and the
Participants agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Participants were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), 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 8(d), no
Participant shall be required to contribute any amount in excess of the amount
by which proceeds received by such Participant from an offering of the
Securities exceeds the amount of any damages which such Participant has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Participants' obligations to contribute as
provided in this Section 8(d) are several and not joint.
9. Rule 144A.
The Company and each Guarantor hereby agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
20
10. Participation in Underwritten Registrations.
The Holders shall be entitled to request only one Underwritten
Registration hereunder (unless such requested Underwritten Registration is not
consummated). No Holder may participate in such Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company and the Guarantors agree
that monetary damages (including Liquidated Damages) would not be
adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. Neither the Company
nor any Guarantor will on or after the date of this Agreement enter
into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. There are no agreements granting
to any Person any registration rights with respect to the securities of
the Company or any Guarantor. 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 the Company's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. Neither the
Company nor any Guarantor will take any action, or permit any change to
occur, with respect to Securities that would materially and adversely
affect the ability of the Holders to Consummate any Exchange Offer
unless such action or change is required by applicable law.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer
21
Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being
tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address of such
Holder maintained by the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
Cott Corporation
000 Xxxxx'x Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Facsimile: 000-000-0000
With a copy to:
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Drinker Xxxxxx & Xxxxx LLP
Facsimile: 000-000-0000
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 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.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns
of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall not
inure to
22
the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer
Restricted Securities from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
COTT HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL
AND STATE COURTS IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY IN ANY
SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(j) 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.
(k) Entire Agreement. This Agreement together with
the other transaction documents is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Required Consents. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held
by the Company, any Guarantor or any of their respective affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by
the Holders of such required percentage.
[This page intentionally left blank]
23
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
COTT BEVERAGES INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
COTT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
COTT HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
COTT USA CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
COTT VENDING INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
24
INTERIM BCB, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
CONCORD HOLDING GP INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
CONCORD HOLDING LP INC.
By: /s/ Xxxxxxx X.Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
CONCORD BEVERAGE LP
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP
25
Accepted:
XXXXXX BROTHERS INC.
BMO XXXXXXX XXXXX CORP.
CIBC WORLD MARKETS CORP.
By: XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Managing Director
