EXHIBIT 4.2
THE PEPSI BOTTLING GROUP, INC.
7% Senior Notes due 2029
REGISTRATION RIGHTS AGREEMENT
March 8, 1999
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Salomon Smith Barney Inc.
Bear, Stearns & Co. Inc.
Chase Securities Inc.
Warburg Dillon Read LLC
Blaylock & Partners, L.P.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Ladies and Gentlemen:
The Pepsi Bottling Group, Inc., a Delaware corporation (the "Issuer"),
proposes to issue and sell to Credit Suisse First Boston Corporation, Lehman
Brothers Inc., Salomon Smith Barney Inc., Bear, Stearns & Co. Inc., Chase
Securities Inc., Warburg Dillon Read LLC and Blaylock & Partners, L.P.
(collectively, the "Initial Purchasers"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase Agreement"),
$1,000,000,000 aggregate principal amount of its 7% Senior Notes due 2029 (the
"Notes") to be unconditionally guaranteed (the "Guarantees") by Bottling Group,
LLC, a Delaware limited liability company ("the "Guarantor" and together with
the Issuer, the "Offerors"). The Notes and the Guarantees are together referred
to as the "Initial Securities." The Initial Securities will be issued pursuant
to an Indenture, dated as of March 8, 1999 (the "Indenture"), among the Issuer,
the Guarantor and The Chase Manhattan Bank, as trustee (the "Trustee"). As an
inducement to the Initial Purchasers to enter into the Purchase Agreement, the
Offerors agree with the Initial Purchasers, for the benefit of the holders of
the Initial Securities (including, without limitation, the Initial Purchasers),
the Exchange Securities (as defined below) and the Private Exchange Securities
(as defined below) (collectively the "Holders"), as follows:
1. Registered Exchange Offer. The Offerors shall, at their own cost,
prepare and, not
later than 120 days after (or if the 120th day is not a business day, the first
business day thereafter) the date of original issue of the Initial Securities
(the "Issue Date"), file with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to a proposed offer (the "Registered
Exchange Offer") to the Holders of Transfer Restricted Securities (as defined
in Section 6 hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a like
aggregate principal amount of debt securities (the "Exchange Securities") of
the Offerors issued under the Indenture and identical in all material respects
to the Initial Securities (except for the transfer restrictions relating to the
Initial Securities and the provisions relating to the matters described in
Section 6 hereof) that would be registered under the Securities Act. The
Offerors shall use their best efforts to cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 180 days (or if
the 180th day is not a business day, the first business day thereafter) after
the Issue Date of the Initial Securities and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Registered Exchange
Offer is mailed to the Holders (such period being called the "Exchange Offer
Registration Period"). The Exchange Securities will be issued under the
Indenture.
If the Offerors effect the Registered Exchange Offer, the Offerors will be
entitled to close the Registered Exchange Offer 30 days after the commencement
thereof provided that the Offerors have accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Offerors shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities (as defined in Section 6
hereof) electing to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Offerors within the
meaning of the Securities Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements or understandings with
any person to participate in the distribution of the Exchange Securities and is
not prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States.
The Offerors acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market-making activities or other
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trading activities, for the Exchange Securities (an "Exchanging Dealer"), is
required to deliver a prospectus containing the information set forth in (a)
Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, and (c)
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Securities (as defined below) acquired in
exchange for Initial Securities constituting any portion of an unsold allotment
is required to deliver a prospectus containing the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Offerors shall use their best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however,
that (i) in the case where such prospectus and any amendment or supplement
thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such
period shall end on the earlier of 180 days from the close of the Registered
Exchange Offer and the date on which all Exchanging Dealers and the Initial
Purchasers have sold all Exchange Securities held by them (unless such period
is extended pursuant to Section 3(j) below) and (ii) the Offerors shall make
such prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 180 days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Offerors, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver
to such Initial Purchaser upon the written request of such Initial Purchaser,
in exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Issuer
issued under the Indenture, guaranteed by the Guarantor and identical in all
material respects (including the existence of restrictions on transfer under
the Securities Act and the securities laws of the several states of the United
States, but excluding provisions relating to the matters described in Section 6
hereof) to the Initial Securities (the "Private Exchange Securities"). The
Initial Securities, the Exchange Securities and the Private Exchange Securities
are herein collectively called the "Securities".
In connection with the Registered Exchange Offer, the Offerors shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
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(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date on which notice
of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Offerors shall:
(x) accept for exchange all the Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder, the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all
the Securities will vote and consent together on all matters as one class and
that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Offerors that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in
the distribution of the Securities or the Exchange Securities within
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the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Offerors or if it is an
affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities and (v) if
such Holder is a broker-dealer, that it will receive Exchange Securities for
its own account in exchange for Initial Securities that were acquired as a
result of market-making activities or other trading activities and that it will
be required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Offerors will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except for statements
or omissions made in reliance upon, and in conformity with, information
furnished to the Offerors by or on behalf of the Holders ("Holders'
Information"), and (iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading except for Holders' Information.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Offerors
are not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Exchange Offer Registration Statement is not
declared effective within 180 days of the Issue Date, (iii) any Initial
Purchaser so requests with respect to the Initial Securities (or the Private
Exchange Securities) not eligible to be exchanged for Exchange Securities in
the Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer)
is not eligible to participate in the Registered Exchange Offer or, in the case
of any Holder (other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder does not receive freely tradeable
Exchange Securities on the date of the exchange, or (v) the Offerors so elect,
then the Offerors shall take the following actions:
(a) The Offerors shall, at their cost, as promptly as practicable
(but in no event more than 30 days after so required or requested pursuant
to this Section 2) file with the Commission and thereafter shall use their
best efforts to cause to be declared effective a registration statement
(the "Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, a "Registration Statement") on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined in Section 6 hereof) by the Holders
thereof from
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time to time in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities
held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The Offerors shall use their best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer period
if extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are no longer restricted securities (as defined
in Rule 144 under the Securities Act, or any successor rule thereof). The
Offerors shall be deemed not to have used their best efforts to keep the
Shelf Registration Statement effective during the requisite period if they
voluntarily take any action that would result in Holders of Securities
covered thereby not being able to offer and sell such Securities during
that period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Offerors shall cause the Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) (other than with respect to Holders' Information) not
to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Offerors shall use their reasonable best efforts to: (i)
furnish to each Initial Purchaser, prior to the filing thereof with the
Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus included therein
and, in the event that an Initial Purchaser (with respect to any portion
of an unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration Statement, the
Offerors shall use their reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as such Initial
Purchaser reasonably may propose; (ii) include the information set forth
in Annex A hereto on
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the cover, in Annex B hereto in the "Exchange Offer Procedures" section
and the "Purpose of the Exchange Offer" section and in Annex C hereto in
the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement and include the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in the prospectus forming a part
of the Exchange Offer Registration Statement; (iv) include within the
prospectus contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker- dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Securities received by such broker-dealer in the Registered Exchange Offer
(a "Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the staff of the Commission or such
positions or policies, in the reasonable judgment of the Initial
Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in
the case of a Shelf Registration Statement, include the names of the
Holders who propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
(b) The Offerors shall advise each of the Initial Purchasers, the
Holders of the Securities and any Participating Broker-Dealer from whom
the Offerors has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been
made) and, if requested by such person, confirm such advice in writing:
(i) when any Registration Statement or any amendment thereto has
been filed with the Commission and when such Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) if known by the Offerors, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Offerors or their legal counsel of
any
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notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Offerors to
make changes in any Registration Statement or the prospectus included
therein in order that such Registration Statement or the prospectus
included therein do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were made)
not misleading.
(c) The Offerors shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of any Registration Statement.
(d) The Offerors shall furnish to each Holder of Securities included
within the coverage of any Shelf Registration, without charge, at least
one conformed copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if any such Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Offerors shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without
charge, at least one conformed copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such Holder
requests, all exhibits thereto (including those incorporated by
reference).
(f) The Offerors shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably
request. The Offerors consent, subject to the provisions of this
Agreement, to the use of such prospectus or any amendment or supplement
thereto by each of the selling Holders of the Securities in connection
with the offering and sale of the Securities covered by such prospectus,
or any amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Offerors shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request.
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The Offerors consent, subject to the provisions of this Agreement, to the
use of such prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by such prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to any
Registration Statement, the Offerors shall use their reasonable best
efforts to register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in connection
with the registration or qualification of the Securities for offer and
sale under the securities or "blue sky" laws of such jurisdictions as any
Holder of the Securities reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale
in such jurisdictions of the Securities covered by such Registration
Statement; provided, however, that the Offerors shall not be required to
(i) qualify generally to do business in any jurisdiction where they are
not then so qualified or (ii) take any action which would subject them to
general service of process or to taxation in any jurisdiction where it is
not then so subject; and, provided, further that the Offerors shall not be
required to pay any expenses in connection therewith after the effective
date of any applicable Registration Statement.
(i) The Offerors shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders may request in writing a
reasonable period of time prior to sales of the Securities pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Offerors
are required to maintain an effective Registration Statement, the Offerors
shall promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, such prospectus will not contain
an 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 light of the circumstances under which they were made, not misleading.
If the Offerors notify the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of
such prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus,
and
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the period of effectiveness of the Shelf Registration Statement provided
for in Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of
days from and including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable Registration
Statement, the Offerors will provide a CUSIP number for the Securities and
provide the applicable trustee with printed certificates for the
Securities in a form eligible for deposit with The Depository Trust
Company.
(l) The Offerors will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make
generally available to their security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no later
than 45 days after the end of a 12-month period (or 90 days, if such
period is a fiscal year) beginning with the first month of the Offerors'
first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month period.
(m) The Offerors shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In the
event that such qualification would require the appointment of a new
trustee under the Indenture, the Offerors shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Offerors may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Offerors
such information regarding the Holder and the distribution of such
Securities as the Offerors may from time to time reasonably require for
inclusion in such Shelf Registration Statement, and the Offerors may
exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
(o) The Offerors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take all such other action, if any, as Holders of a majority in aggregate
principal amount of the Securities being sold or the managing underwriters
(if any) shall reasonably request in order to facilitate the disposition
of the Securities pursuant to any Shelf Registration Statement.
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(p) In the case of any Shelf Registration, the Offerors shall (i)
make reasonably available for inspection by a representative of, and
Special Counsel (as defined below) acting for Holders of a majority in
aggregate principal amount of the Securities being sold and any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Offerors and (ii)
cause the Offerors' officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter (each, an
"Inspector") in connection with such Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such Inspector, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers and on behalf of the other parties, by one counsel designated
by and on behalf of such other parties as described in Section 4 hereof.
(q) In the case of any Shelf Registration, the Offerors, if requested
by Holders of a majority in aggregate principal amount of Securities being
sold or the managing underwriters (if any) shall use their reasonable best
efforts to cause (i) their counsel (which may be in-house counsel) to
deliver an opinion relating to the Securities in customary form, (ii)
their officers to execute and deliver all customary documents and
certificates and updates thereof requested by the managing underwriters of
the applicable Securities and (iii) their independent public accountants
provide a comfort letter in customary form, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by any
Initial Purchaser or any known Participating Broker-Dealer, the Offerors
shall use their reasonable best efforts to cause (i) their counsel to
deliver to such Initial Purchaser or such Participating Broker-Dealer a
signed opinion in customary form and (ii) their independent public
accountants and the independent public accountants with respect to any
other entity for which financial information is provided in the
Registration Statement to deliver to such Initial Purchaser or such
Participating Broker-Dealer a comfort letter, in customary form.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Offerors (or to such other Person as directed by the Offerors) in exchange
for the Exchange Securities or the Private Exchange Securities, as the
case may be, the Offerors shall mark, or caused to be marked, on the
Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities
be
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marked as paid or otherwise satisfied.
(t) The Offerors will use their reasonable best efforts to (i) if the
Initial Securities have been rated prior to the initial sale of such
Initial Securities, confirm such ratings will apply to the Securities
covered by a Registration Statement, or (ii) if the Initial Securities
were not previously rated, cause the Securities covered by a Registration
Statement to be rated with the appropriate rating agencies, if so
requested by Holders of a majority in aggregate principal amount of
Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(u) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Offerors will
assist such broker-dealer in complying with the requirements of such
Rules, including, without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the Rules.
(v) The Offerors shall use their reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered
by a Registration Statement contemplated hereby.
4. Registration Expenses. The Offerors shall bear all fees and expenses
incurred in connection with the performance of their obligations under Sections
1 through 3 hereof (including the reasonable fees and expenses, if any, of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Initial Purchasers,
incurred in connection with the Registered Exchange Offer) and, in the event of
a Shelf Registration, shall bear or reimburse the Holders of the Securities
covered thereby for the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of the
Securities covered thereby (the "Special Counsel") to act as counsel for the
Holders of the Securities in connection therewith.
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5. Indemnification and Contribution.
(a) The Issuer and the Guarantor, jointly and severally, agree to
indemnify and hold harmless each Holder of the Securities, any
Participating Broker-Dealer and each person, if any, who controls such
Holder or such Participating Broker-Dealer within the meaning of the
Securities Act or the Exchange Act (each Holder, any Participating
Broker-Dealer and such controlling persons are referred to collectively as
the "Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities
or actions relating to purchases and sales of the Securities) to which
each Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action in respect thereof; provided, however, that
(i) the Issuer and the Guarantor shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating
to a Shelf Registration in reliance upon and in conformity with any
Holders' Information and (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus relating to a Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit
of any Holder or Participating Broker- Dealer (or any person controlling
such Holder or Participating Broker-Dealer) from whom the person asserting
any such losses, claims, damages or liabilities purchased the Securities
concerned, to the extent that a prospectus relating to such Securities was
required to be delivered by such Holder or Participating Broker-Dealer
under the Securities Act in connection with such purchase and any such
loss, claim, damage or liability of such Holder or Participating
Broker-Dealer results from the fact that there was not sent or given to
such person, at or prior to the written confirmation of the sale of such
Securities to such person, a copy of the final prospectus if the Issuer or
Guarantor have previously furnished copies thereof to such Holder or
Participating Broker-Dealer; provided further, however, that this
indemnity agreement will be in addition to any liability which the Issuer
or Guarantor may otherwise have to such Indemnified Party. The Issuer and
Guarantor shall also jointly and severally indemnify underwriters, their
officers and directors and each person who controls
13
such underwriters within the meaning of the Securities Act or the Exchange
Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such
Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Issuer and Guarantor, their directors and
officers and each person, if any, who controls the Issuer and Guarantor,
as the case may be, within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities
or any actions in respect thereof, to which the Issuer or the Guarantor or
any such controlling person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder and
furnished to the Issuer or the Guarantor by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Issuer or Guarantor, as the case may be, for any legal or other expenses
reasonably incurred by the Issuer or Guarantor, as the case may be, or any
such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder
may otherwise have to the Issuer or Guarantor, as the case may be, or any
of their controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any such action
is brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5
14
for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with the defense thereof. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement
of any pending or threatened action 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 (i) includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not
include a statement as to and an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above (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 on the other from the exchange of the Securities, pursuant to the
Registered Exchange Offer, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The
relative fault of the parties 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 Issuer or Guarantor, as the case may be, on
the one hand or such Holder or such other indemnified party, as the case
may be, on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding any other provision of this Section
5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by
such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this
15
paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as such indemnified party and each person,
if any, who controls the Issuer or Guarantor, as the case may be, within
the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Issuer or Guarantor, as the case may be.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any
indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "Additional Interest") with respect to
the Initial Securities and the Private Exchange Securities shall be
assessed as follows if any of the following events occur (each such event
in clauses (1) through (3) below a "Registration Default":
(1) if by the 120th day following the Issue Date (or if such day is not a
business day, the first business day thereafter), a registration
statement has not been filed with the Commission with respect to the
Registered Exchange Offer or the resale of the Securities,
(2) if by the 180th day after the Issue Date (or if such day is not a
business day, the first business day thereafter), the Exchange Offer
Registration Statement is not declared effective or if by the 220th
day after the Issue Date (or if such day is not a business day, the
first business day thereafter), the Shelf Registration Statement is
not declared effective or the Registered Exchange Offer is not
consummated,
(3) if by the 180th day after the Issue Date (or if such day is not a
business day, the first business day thereafter), the Exchange Offer
Registration Statement is declared effective, or if by the 220th day
after the Issue Date (or if such day is not a business day, the first
business day thereafter) the Shelf Registration Statement is declared
effective but:
(a) such registration statements ceases to be effective, prior to
expiration of the time periods described in Sections 1 and 2
hereof, if so required, or
(b) such registration statements cease to be useable in connection
with resales of Securities prior to expiration of the time
periods described in Sections 1 and 2 hereof, if so required
16
Additional Interest shall accrue on the Initial Securities and the Private
Exchange Notes over and above the interest set forth in the title of the
Securities from and including the date on which any such Registration
Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.25% per annum (the
"Additional Interest Rate") for the first 90-day period immediately
following the occurrence of such Registration Default. The Additional
Interest Rate shall increase by an additional 0.25% per annum with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum Additional Interest Rate of 0.5% per annum.
(b) A Registration Default referred to in Section 6(a)(3) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default 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
Offerors 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) other material events, with respect to the Offerors that
would need to be described in such Shelf Registration Statement or the
related prospectus and (ii) in the case of clause (y), the Offerors are
proceeding promptly and in good faith to amend or supplement such Shelf
Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs
for a continuous period in excess of 30 days, Additional Interest shall be
payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (1) or
(2) of Section 6(a) above will be payable in the same manner as specified
in the Indenture for the payment of interest on the Securities on the
regular interest payment dates with respect to the Securities. The amount
of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the Initial Securities
or Private Exchange Notes, as the case may be, multiplied by a fraction,
the numerator of which is the number of days such Additional Interest rate
was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is
360.
(d) "Transfer Restricted Securities" means each Security until (i)
the date on which such Security has been exchanged by a person other than
a broker-dealer for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) following the exchange by a broker-dealer
in the Registered Exchange Offer of an Initial Security for an Exchange
Security, the date on which such Exchange 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
17
Statement, (iii) 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 (iv) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities Act or
is saleable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. So long as Transfer Restricted Securities remain
outstanding, the Issuer or Guarantor shall each use their respective best
efforts to file the reports required to be filed by them under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Issuer or
Guarantor is not required to file such reports, it will, upon the written
request of any Holder of Securities, make publicly available other information
so long as necessary to permit sales of their securities pursuant to Rules 144
and 144A. So long as Transfer Restricted Securities remain outstanding, the
Issuer or Guarantor covenant that it will take such further action as any
Holder of Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). So long as
Transfer Restricted Securities remain outstanding, the Issuer or Guarantor will
provide a copy of this Agreement to prospective purchasers of Initial
Securities identified to the Issuer by the Initial Purchasers upon written
request. So long as Transfer Restricted Securities remain outstanding, upon the
written request of any Holder of Initial Securities, the Issuer or Guarantor
shall deliver to such Holder a written statement as to whether they have
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Issuer or Guarantor to register any of
their securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering, subject to the consent
of the Offerors (which shall not be unreasonably withheld or delayed), and such
Holders shall be responsible for all underwriting commissions and discounts in
connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
18
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, except by the
Offerors and the written consent of the Holders of a majority in principal
amount of the Securities affected by such amendment, modification,
supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(i) if to a Holder of the Securities, at the most current
address given by such Holder to the Offerors.
(ii) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Fax No.: (212) 735-2000
Attention: Matthew J. Mallow, Esq.
(iii) if to the Offerors, at its address as follows:
The Pepsi Bottling Group, Inc.
One Pepsi Way
Somers, New York 10589
Fax No.: (914) 767-1820
Attention: Controller
19
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Fax No.: (212) 450-4800
Attention: Winthrop Conrad Jr., Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when
receipt is acknowledged by recipient's facsimile machine operator, if sent by
facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Offerors have not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to their securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with
the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Offerors and their respective successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If 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.
(i) Securities Held by the Offerors. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Offerors or their respective
affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be
20
affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to Offerors a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Issuer and the Guarantor in
accordance with its terms.
Very truly yours,
The Pepsi Bottling Group, Inc.
By: /s/ Margaret D. Moore
-----------------------------------
Name: Margaret D. Moore
Title: Senior Vice President
and Treasurer
Bottling Group, LLC
By: /s/ Lawrence F. Dickie
-----------------------------------
Name: Lawrence F. Dickie
Title: Managing Director
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
BEAR, STEARNS & CO, INC.
CHASE SECURITIES INC.
WARBURG DILLON READ LLC
BLAYLOCK & PARTNERS, L.P.
by: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Joseph Fashano
-------------------------
Name: Joseph Fashano
Title: Director
22
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired by
such broker-dealer as a result of market- making activities or other trading
activities. The Issuer and the Guarantor have agreed that, for a period of 180
days after the Expiration Date (as defined herein), it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
23
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial Securities were acquired
by such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received
in exchange for Initial Securities where such Initial Securities were acquired
as a result of market-making activities or other trading activities. The Issuer
and the Guarantor agreed that, for a period of 180 days after the Expiration
Date, it will make this prospectus, as amended or supplemented, available to
any broker-dealer for use in connection with any such resale. In addition,
until , 199 , all dealers effecting transactions in the Exchange Securities may
be required to deliver a prospectus.1
The Issuer will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker- dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of Exchange Securities and any
commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Issuer will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuer has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one
- ---------
1 In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
25
counsel for the Holders of the Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of the
Securities (including any broker- dealers) against certain liabilities,
including liabilities under the Securities Act.
26
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE
10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _____________________________________________
Address: ___________________________________________
___________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale
of such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
27