REGISTRATION RIGHTS AGREEMENT
between
TRIARC COMPANIES, INC.
as Issuer,
and
MORGAN STANLEY & CO. INCORPORATED,
as Initial Purchaser
Dated as of May 19, 2003
REGISTRATION RIGHTS AGREEMENT dated as of May 19, 2003 among Triarc
Companies, Inc., a Delaware corporation (the "Company"), and Morgan Stanley &
Co. Incorporated (the "Initial Purchaser") pursuant to the Purchase Agreement
dated May 14, 2003 (the "Purchase Agreement"), between the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.
The Company agrees with the Initial Purchaser, (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the beneficial owners (including
the Initial Purchaser) from time to time of the Notes (as defined herein) and
the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means with respect to any specified person, an "affiliate," as
defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Common Stock" means the shares of Class A common stock, $0.10 par value,
of the Company, and any other shares of common stock as may constitute "Common
Stock" for purposes of the Indenture, including the Underlying Common Stock.
"Conversion Rate" has the meaning assigned such term in the Indenture.
"Damages Accrual Period" has the meaning set forth in Section 2(e) hereof.
"Damages Payment Date" means each May 15 and November 15.
"Deferral Notice" has the meaning set forth in Section 3(i) hereof.
"Deferral Period" has the meaning set forth in Section 3(i) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means the period commencing on the date hereof and
ending on the date that all Registrable Securities have ceased to be Registrable
Securities.
"Event" has the meaning set forth in Section 2(e) hereof.
"Event Date" has the meaning set forth in Section 2(e) hereof.
"Event Termination Date" has the meaning set forth in Section 2(e) hereof.
"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) hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of May 19, 2003, between the
Company and Wilmington Trust Company, as trustee, pursuant to which the Notes
are being issued.
"Initial Purchaser" means Morgan Stanley & Co. Incorporated.
"Initial Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Issue Date" means the first date of original issuance of the Notes.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e)
hereof.
"Losses" has the meaning set forth in Section 6 hereof.
"Material Event" has the meaning set forth in Section 3(i) hereof.
"Notes" means the 5% Convertible Notes Due 2023 of the Company to be
purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to the Company
containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company issued May 14, 2003 relating to the Notes.
"Notice Holder" means, on any date, any Holder that has delivered a Notice
and Questionnaire to the Company on or prior to such date.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"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.
"Record Holder" means (i) with respect to any Damages Payment Date relating
to any Notes as to which any such Liquidated Damages Amount has accrued, the
holder of record of such Note on the record date with respect to the interest
payment date under the Indenture on
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which such Damages Payment Date shall occur and (ii) with respect to any Damages
Payment Date relating to the Underlying Common Stock as to which any such
Liquidated Damages Amount has accrued, the registered holder of such Underlying
Common Stock fifteen (15) days prior to such Damages Payment Date.
"Registrable Securities" means the Notes until such Notes have been
converted into for the Underlying Common Stock and, at all times subsequent to
any such conversion the Underlying Common Stock and any securities into or for
which such Underlying Common Stock has been converted, and any security issued
with respect thereto upon any stock dividend, split or similar event until, in
the case of any such security the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of the holding period that would be
applicable under Rule 144(k) to a sale by a non-Affiliate of the Company or
(iii) its sale to the public pursuant to Rule 144 (or any similar provision then
in force, but not Rule 144A) under the Securities Act, and as a result of the
event or circumstance described in any of the foregoing clauses (i) through
(iii), the legend with respect to transfer restrictions required under the
Indenture are removed or removable in accordance with the terms of the Indenture
or such legend, as the case may be.
"Registration Expenses" has the meaning set forth in Section 5 hereof.
"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.
"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.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section 2(a)
hereof.
"Special Counsel" means Davis Polk & Wardwell or one such other successor
counsel as shall be specified by the Holders of a majority of the Registrable
Securities, but which may, with the written consent of the Initial Purchaser
(which shall not be unreasonably withheld), be another nationally recognized law
firm experienced in securities law matters designated by the Company, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof.
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"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the Notes are
convertible or issued upon any such conversion.
Section 2. Shelf Registration. The Company shall prepare and file or cause
to be prepared and filed with the SEC, as soon as practicable but in any event
by the date (the "Filing Deadline Date") ninety (90) days after the Issue 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 thereof of all
of the Registrable Securities (the "Initial Shelf Registration Statement"). The
Initial Shelf Registration Statement shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution elected by the Holders
and set forth in the Initial Shelf Registration Statement. The Company shall use
reasonable efforts to cause the Initial Shelf Registration Statement to be
declared effective under the Securities Act as promptly as is practicable but in
any event by the date (the "Effectiveness Deadline Date") that is two hundred
ten (210) days after the Issue Date, and, 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 ten
(10) Business 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 in accordance with applicable
law. None of the Company's security holders (other than the Holders of
Registrable Securities) shall have the right to include any of the Company's
securities in the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the 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 reasonable
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep
such Registration Statement (or subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
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(c) The Company shall supplement and amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement, if
required by the Securities Act or as reasonably requested by the Initial
Purchaser or by the Trustee on behalf of the Holders of the Registrable
Securities covered by such Shelf Registration Statement.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and Section 3(i). Each
Holder wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and Questionnaire to
the Company at least three (3) Business Days prior to any intended distribution
of Registrable Securities under the Shelf Registration Statement. From and after
the date the Initial Shelf Registration Statement is declared effective, the
Company shall, as promptly as reasonably practicable after the date a Notice and
Questionnaire is delivered, and in any event upon the later of (x) five (5)
Business Days after such date or (y) five (5) Business Days after the expiration
of any Deferral Period in effect when the Notice and Questionnaire is delivered
or put into effect within five (5) Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf 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 Shelf
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 Shelf Registration
Statement, use 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 forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to
Section 2(d)(i); and
(iii) notify such Holder as promptly as reasonably 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(i). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Deferral Period (and the Company
shall incur no obligation to pay Liquidated
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Damages during such extension) if such Deferral Period shall be in effect on the
Amendment Effectiveness Deadline Date.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if
(i) the Initial Shelf Registration Statement has not been filed on or
prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness
Deadline Date,
(iii) the Company has failed to perform its obligations set forth in
Section 2(d) within the time period required therein,
(iv) any post-effective amendment to a Shelf Registration Statement
filed pursuant to Section 2(d)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline Date, or
(v) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section
3(i) hereof,
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin on the dates set forth in the table below
and shall continue until the ending dates set forth in the table below:
Type of Event by Clause Beginning Date Ending Date
- ----------------------- ---------------------- -----------------------------
(i) Filing Deadline Date the date the Initial Shelf
Registration Statement is
filed
(ii) Effectiveness Deadline the date the Initial Shelf
Date Registration Statement
becomes effective under the
Securities Act
(iii) the date by which the the date the Company performs
Company is required to its obligations set forth in
perform its Section 2(d)
obligations under
Section 2(d)
(iv) the Amendment the date the applicable
Effectiveness Deadline post-effective amendment to a
Date Shelf Registration Statement
becomes effective under the
Securities Act
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Type of Event by Clause Beginning Date Ending Date
- ----------------------- ---------------------- -----------------------------
(v) the date on which the termination of the Deferral
aggregate duration of Period that caused the limit
Deferral Periods in on the aggregate duration of
any period exceeds the Deferral Periods to be
number of days exceeded
permitted by Section
3(i)
Commencing on (and including) any date that an Event has begun and ending
on (but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Company shall pay, as
liquidated damages and not as a penalty, to Record Holders of Registrable
Securities an amount (the "Liquidated Damages Amount") accruing, for each day in
the Damages Accrual Period, (i) in respect of any Note, at a rate per annum
equal to 0.25% for the first ninety (90) day period after the occurrence of an
Event and at a rate per annum equal to 0.5% thereafter of the aggregate
principal amount of such Note and (ii) in respect of each share of Underlying
Common Stock at a rate per annum equal to 0.25% for the first ninety (90) day
period after the occurrence of an Event and at a rate per annum equal to 0.5%
thereafter of an amount equal to $1,000 divided by the Conversion Rate in effect
on the first day of any such period, as the case may be; provided that in the
case of a Damages Accrual Period that is in effect solely as a result of an
Event of the type described in clause (iii) or (iv) of the preceding paragraph,
such Liquidated Damages Amount shall be paid only to the Holders (as set forth
in the succeeding paragraph) that have delivered Notices and Questionnaires that
caused the Company to incur the obligations set forth in Section 2(d) the
non-performance of which is the basis of such Event. In calculating the
Liquidated Damages Amount on any date on which no Notes are outstanding, the
Conversion Rate and the Liquidated Damages Amount shall be calculated as if the
Notes were still outstanding. Notwithstanding the foregoing, no Liquidated
Damages Amount shall accrue as to any Registrable Security from and after the
earlier of (x) the date such security is no longer a Registrable Security and
(y) expiration of the Effectiveness Period. The rate of accrual of the
Liquidated Damages Amount with respect to any period shall not exceed the rate
provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events.
The Liquidated Damages Amount shall accrue from the first day of the
applicable Damages Accrual Period, and shall be payable on each Damages Payment
Date during the Damages Accrual Period (and on the Damages Payment Date next
succeeding the end of the Damages Accrual Period if the Damages Accrual Period
does not end on a Damages Payment Date) to the Record Holders of the Registrable
Securities entitled thereto; provided that any Liquidated Damages Amount accrued
with respect to any Note or portion thereof redeemed by the Company on a
redemption date or converted into Underlying Common Stock on a conversion date
prior to the Damages Payment Date, shall, in any such event, be paid instead to
the Holder who submitted such Note or portion thereof for redemption or
conversion on the applicable redemption date or conversion date, as the case may
be, on such date (or promptly following the
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conversion date, in the case of conversion); provided further, that, in the case
of an Event of the type described in clause (iii) or (iv) of the first paragraph
of this Section 2(e), such Liquidated Damages Amount shall be paid only to the
Holders entitled thereto pursuant to such first paragraph by check mailed to the
address set forth in the Notice and Questionnaire delivered by such Holder. The
Trustee shall be entitled, on behalf of registered holders of Notes or
Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of such Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages. Nothing shall
preclude any Holder from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(l)).
The parties hereto agree that the liquidated damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof
in accordance with the intended method or methods of distribution thereof,
and use reasonable efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided that
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, furnish to the Initial Purchaser and the
Special Counsel of such offering, if any, copies of all such documents
proposed to be filed and, within five (5) Business Days of the delivery of
such copies to the Initial Purchaser and the Special Counsel, (i) use
reasonable efforts to reflect in each such document when so filed with the
SEC such comments relating to information regarding the Holders of the
Registrable Securities that the Initial Purchaser or the Special Counsel,
if any, reasonably shall propose and (ii) will in good faith consider
reflecting in each such document when so filed with the SEC all other
comments that the Initial Purchaser and the Special Counsel, if any,
reasonably shall propose; provided that the Company shall not be required
to take any actions under this Section 3(a) that are not, in the opinion of
nationally-recognized counsel experienced in such matters, required by
applicable law or to include the disclosure which at the time would have a
material adverse effect on the business or operations of the Company, as
determined in good faith by the Company.
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(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 period specified in
Section 2(a); 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 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 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 Notice Holders, the
Initial Purchaser and the Special Counsel, (i) when any Prospectus,
prospectus supplement, Registration Statement 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 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(i)), state that it constitutes a Deferral Notice, in
which event the provisions of Section 3(i) shall apply.
(d) Use 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 immediate notice to each Notice Holder and the Initial
Purchaser of the withdrawal of any such order.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, as promptly as reasonably practicable incorporate in a prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchaser and the Special Counsel, or such
Notice Holder shall, on the basis of an opinion of nationally-recognized
counsel experienced in such matters, determine to be required to be
included therein by applicable law and make any required filings of such
prospectus supplement or post-effective amendment; provided that the
Company shall not be required to take any actions under this Section 3(e)
that are not, in the opinion of nationally-recognized counsel experienced
in such matters, required by applicable law or
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to include the disclosure which at the time would have a material adverse
effect on the business or operations of the Company, as determined in good
faith by the Company.
(f) As promptly as practicable furnish to each Notice Holder, the
Special Counsel and the Initial Purchaser, without charge, at least one (1)
conformed copy of the Registration Statement and any amendment thereto,
excluding schedules, exhibits and all documents incorporated or deemed to
be incorporated therein by reference (unless requested in writing by such
Notice Holder, Special Counsel or Initial Purchaser).
(g) During the Effectiveness Period, deliver to each Notice Holder,
the Special Counsel, if any, and the Initial Purchaser, in connection with
any sale of Registrable Securities pursuant to a 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 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.
(h) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use reasonable efforts to register or
qualify or cooperate with the Notice Holders and the Special Counsel 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 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 reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder's 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.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf 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 any 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
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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 reasonable discretion of the Company, makes
it appropriate to suspend the availability of the Shelf Registration Statement
and the related Prospectus for a discrete period of time:
(1) in the case of clause (B) above, subject to the next
sentence, 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,
subject to the next sentence, use reasonable efforts to cause it
to be declared effective as promptly as is practicable, and
(2) give notice to the Notice Holders, and the Special
Counsel, if any, that the availability of the Shelf 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 the 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 will use reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly
as is practicable, (y) in the case of clause (B) above, as soon as, in the
sole judgment of the Company, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of the Company or,
if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter and (z) in the case of clause (C) above, as soon as
in the reasonable discretion of the Company, such suspension is no longer
appropriate. The Company shall be entitled to exercise its right under this
Section 3(i) to suspend the availability of the Shelf Registration
Statement or any Prospectus, without incurring or accruing any obligation
to pay liquidated damages pursuant to Section 2(e), for a period (the
"Deferral
11
Period") that shall not exceed 45 days in any three month period (or 60
days in any three month period in the event of a Material Event pursuant to
which the Company has delivered a second notice as required below) or 120
days in any twelve (12) month period; provided that in the case of a
Material Event relating to an acquisition or a probable acquisition or
financing, recapitalization, business combination or other similar
transaction, the Company may, without incurring any obligation to pay
liquidated damages pursuant to Section 2(e), deliver to Notice Holders a
second notice to the effect set forth above, which shall have the effect of
extending the Deferral Period for any three month period by up to an
additional 15 days, or such shorter period of time as is specified in such
second notice.
(j) 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 broker-dealers, attorneys and
accountants retained by such Notice Holders holding in the aggregate 10% or more
of the outstanding Registrable Securities, and any attorneys or other agents
retained by 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,
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 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, (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, and
provided further that the foregoing inspection and information gathering shall,
to the greatest extent possible, be coordinated on behalf of all the Notice
Holders and the other parties entitled thereto by the counsel referred to in
Section 5.
(k) 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 a 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.
12
(l) Cooperate with each Notice Holder 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
denominations as are permitted by the Indenture and registered in such names as
such Notice Holder may request in writing at least three (3) Business Day prior
to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by each
Registration Statement not later than the effective date of such Registration
Statement and provide the Trustee and the transfer agent for the Common Stock
with printed certificates for the Registrable Securities that are in a form
eligible for deposit with The Depository Trust Company.
(n) 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.
(o) Upon (i) the filing of the Initial Shelf Registration Statement and
(ii) the effectiveness of the Initial Shelf Registration Statement, announce the
same, in each case by release to Reuters Economic Services and Bloomberg
Business News.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder shall 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) hereof (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 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 New York Stock
Exchange Inc. and (y) of compliance with federal and state securities or Blue
Sky laws (including, without limitation,
13
reasonable fees and disbursements of the Special Counsel in connection with Blue
Sky qualifications of the Registrable Securities under the laws of such
jurisdictions as Notice Holders of a majority of the Registrable Securities
being sold pursuant to a Registration Statement may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing Prospectuses if the printing of Prospectuses is
requested by the Special Counsel or the Holders of a majority of the Registrable
Securities included in any Registration Statement), (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
the Special Counsel in connection with the Shelf Registration Statement
(provided that the Company shall not be liable for the fees and expenses of more
than one separate firm for all parties participating in any transaction
hereunder), (v) reasonable fees and disbursements of the Trustee and its counsel
and 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 selling expenses
(including underwriting discounts and commissions and transfer taxes), all fees
and expenses of its counsel, any stock transfer taxes in connection with any
underwritten offering and all registration expenses to the extent required by
applicable law.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and hold
harmless each Notice Holder and each person, if any, who controls any Notice
Holder (within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act) 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 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 the Holders furnished to the Company in writing by a
Holder expressly for use therein; provided that the Company shall not be liable
to any Notice Holder (or any person controlling such Notice Holder) to the
extent that any 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 (A)(i) such Notice Holder was required by law to send or deliver, and
failed to send or deliver, a copy of the Prospectus with or prior to delivery
written confirmation of the sale by such Notice Holder to the person asserting
the claims from which such Losses arise and (ii) the Prospectus would have
corrected such untrue statement or alleged untrue statement or omission or
alleged omission or (B)(i) such Notice Holder
14
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 with such disposition, (ii) such Notice Holder received a Deferral
Notice in writing prior to the date of such disposition and (iii) such untrue
statement or alleged untrue statement or omission or alleged omission was the
reason for the Deferral Notice.
(b) Indemnification by Holders. Each Holder agrees 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) or any 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) 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 or any amendments or supplements thereto and (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 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) hereof, 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
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same
15
jurisdiction, be liable for (i) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Holders and all persons, if any,
who control any Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act and (ii) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section, and
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. In the case of any such separate firm for the Holders and such control
persons of any Holders, such firm shall be designated in writing by the Holders
of a majority (with Holders of Notes deemed to be the Holders, for purposes of
determining such majority, of the number of shares of Underlying Common Stock
into which such Notes are or would be convertible or exchangeable as of the date
on which such designation is made) of the Registrable Securities covered by the
Registration Statement held by Holders that are indemnified parties pursuant to
Section 6(a). In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which 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 shall be deemed to be
equal to the total net proceeds from the initial placement pursuant to the
Purchase Agreement (before deducting expenses) of the Registrable Securities to
which such Losses relate. Benefits received by any Holder shall be deemed to be
equal to the value of receiving Registrable Securities that are registered under
the Securities Act. 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,
16
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. Notwithstanding this Section 6(d), an indemnifying party that
is a selling Holder shall not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 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 indemnified
party may otherwise have hereunder, under the Purchase 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 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, if at any
time before the end of the Effectiveness Period the Company is not subject to
the reporting requirements of the Exchange Act, 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 Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities (other than the Common Stock) under any
section of the Exchange Act.
17
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date hereof, a
party to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holders in this Agreement. The Company represents and warrants that the
rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's securities under any other
agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Notes deemed to be the Holders, for purposes of this Section,
of the number of outstanding shares of Underlying Common Stock into which such
Notes are or would be convertible or exchangeable as of the date on which such
consent is requested). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant to
a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by such Holder
to the Company in a Notice and Questionnaire or any amendment thereto;
(ii) if to the Company, to:
Triarc Companies, Inc.
280 Park Avenue
New York, NY 10017
Attention: General Counsel
Telecopy No.:
18
With a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: Paul D. Ginsberg
Telecopy No.: (212) 757-3990
(iii) if to the Initial Purchaser, to:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Equity Capital Markets
Telecopy No.: (212) 761-0538
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchaser
or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchaser. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
(f) 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 original and all of which taken together
shall constitute one and the same agreement. (g) Headings. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
19
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it
being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Company with respect to the Registrable Securities. Except as provided in the
Purchase Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto
shall have any rights, duties or obligations other than those specifically set
forth in this Agreement. In no event will such methods of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
(k) Further Assurances. Each of the parties hereto shall use reasonable
efforts to take, or cause to be taken, all appropriate action, do or cause to be
done all things reasonably necessary, proper or advisable under applicable law,
and execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement.
(l) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TRIARC COMPANIES, INC.
By /s/ Brian L. Schorr
----------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
Confirmed and accepted as of
the date first above written:
MORGAN STANLEY & CO. INCORPORATED
By /s/ David Schwarzbach
----------------------------------
Name: David Schwarzbach
Title: Vice President