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