UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 10, 2014
Cott Corporation
(Exact
name of registrant as specified in its charter)
|
|
|
|
|
Canada |
|
001-31410 |
|
98-0154711 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
|
|
|
6525 Viscount Road
Mississauga, Ontario, Canada |
|
L4V1H6 |
|
|
5519 West Idlewild Avenue
Tampa, Florida, United States |
|
33634 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrants telephone number, including area code: (905) 672-1900
(813) 313-1800
N/A
(Former name or
former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 |
Entry into a Material Definitive Agreement |
On June 10, 2014, Cott Corporation (the
Company), its wholly owned subsidiary Cott Beverages Inc. (Cott Beverages), and certain subsidiaries of the Company, as guarantors (the Guarantors), entered into a purchase agreement (the Purchase
Agreement) with certain initial purchasers named in Schedule I therein (the Initial Purchasers) for a private placement offering of $525 million in aggregate principal amount of Cott Beverages 5.375% senior notes due 2022 (the
New Notes). Pursuant to the Purchase Agreement, the Initial Purchasers agreed to purchase the New Notes. Among other things, the Company, Cott Beverages and the Guarantors (i) agreed, for a period of 60 days, not to, without the
prior written consent of the Initial Purchasers, directly or indirectly, issue, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any securities similar to the notes, or any securities convertible into or exchangeable
for the notes or any such similar securities, except for the notes sold to the initial purchasers pursuant to the purchase agreement; and (ii) agreed to indemnify the Initial Purchasers with respect to certain aspects of the offering of the New
Notes. The Purchase Agreement also contains customary representations, warranties and agreements by the Company, Cott Beverages and the Guarantors.
The
New Notes were offered and are anticipated to be sold by Cott Beverages to the Initial Purchasers at a price set forth in the Purchase Agreement in reliance on an exemption pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended
(the Securities Act). Delivery to the Initial Purchasers of, and payment for, the New Notes is anticipated to be made on or about June 24, 2014. The New Notes have not been registered under the Securities Act and may not be offered
or sold in the United States absent registration or an applicable exemption from registration requirements.
The obligations of the Initial Purchasers to
purchase the New Notes are subject to customary terms and conditions, including accuracy of representations and warranties of the Company and Cott Beverages and receipt of legal opinions and certificates, in each case as set forth in the Purchase
Agreement.
Cott Beverages expects to use the net proceeds from the offering to repurchase any and all of its outstanding 8.125% Senior Notes due 2018
(the 2018 Notes) in its previously announced tender offer and consent solicitation (the Tender Offer) and the redemption of any of the 2018 Notes that remain outstanding if Cott Beverages purchases less than all of the
outstanding 2018 Notes in the Tender Offer, to repay any outstanding loans under its asset-based lending credit facility, to pay related fees and expenses and for general corporate purposes.
Item 7.01 |
Regulation FD Disclosure |
On June 10, 2014, the Company announced via press release that its wholly
owned subsidiary, Cott Beverages, priced an offering of $525 million in aggregate principal amount of the New Notes. The New Notes will mature on July 1, 2022 and interest on the New Notes will accrue and be payable semi-annually commencing
January 1, 2015 at the rate of 5.375% per annum. The New Notes will yield gross proceeds to Cott Beverages of approximately $525 million. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by
reference.
Item 9.01 |
Financial Statements and Exhibits |
(d) Exhibits
|
|
|
Exhibit No. |
|
Description |
|
|
1.1 |
|
Purchase Agreement, dated June 10, 2014, among Cott Corporation, Cott Beverages Inc., certain of Cott Corporations subsidiaries, as guarantors, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, acting on behalf of
itself and as the Representative of the several Initial Purchasers named in Schedule I thereto. |
|
|
99.1 |
|
Press Release dated June 10, 2014 issued by Cott Corporation regarding the pricing of Cott Beverages Inc.s 5.375% senior notes due 2022. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
|
|
|
|
|
|
|
|
|
|
Cott Corporation |
|
|
|
|
(Registrant) |
June 11, 2014 |
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Marni Morgan Poe |
|
|
|
|
|
|
Marni Morgan Poe |
|
|
|
|
|
|
Vice President, General Counsel and Secretary |
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Description |
|
|
1.1 |
|
Purchase Agreement, dated June 10, 2014, among Cott Corporation, Cott Beverages Inc., certain of Cott Corporations subsidiaries, as guarantors, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, acting on behalf of
itself and as the Representative of the several Initial Purchasers named in Schedule I thereto. |
|
|
99.1 |
|
Press Release dated June 10, 2014 issued by Cott Corporation regarding the pricing of Cott Beverages Inc.s 5.375% senior notes due 2022. |
Exhibit 1.1
EXECUTION VERSION
$525,000,000
COTT BEVERAGES INC.
5.375% SENIOR NOTES DUE 2022
PURCHASE AGREEMENT
June 10, 2014
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
As Representative of the several
Initial Purchasers named in Schedule I hereto
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New
York 10036
Ladies and Gentlemen:
Cott
Beverages Inc., a Georgia corporation (the Issuer), proposes, upon the terms and conditions set forth in this agreement (this Agreement), to issue and sell to the several initial purchasers named
in Schedule I hereto (the Initial Purchasers), for whom you are acting as representative (the Representative), $525,000,000 in aggregate principal amount of its 5.375% Senior Notes due 2022 (the
Notes). The Notes will (i) have terms and provisions that are summarized in the Offering Memorandum (as defined below), and (ii) are to be issued pursuant to an Indenture (the Indenture)
to be entered into among the Issuer, the Guarantors (as defined below) and Wells Fargo Bank, National Association, as trustee (the Trustee). The Issuers obligations under the Notes, including the due and punctual
payment of interest on the Notes, will be irrevocably and unconditionally guaranteed (the Guarantees) by Cott Corporation, a Canadian corporation (the Company or the Parent
Guarantor) and by each of the guarantors listed in Schedule II hereto (the Subsidiary Guarantors and, together with the Parent Guarantor, the Guarantors). As used herein, the term
UK Guarantors shall mean Cott Beverages Limited, Cott Retail Brands Limited, Cott Limited, Cott Europe Trading Limited, Cott Private Label Limited, Cott Nelson (Holdings) Limited, Cott (Nelson) Limited, Cooke Bros Holdings
Limited, Cooke Bros. (Tattenhall). Limited, Mr Freeze (Europe) Limited, Calypso Soft Drinks Limited, TT Calco Limited, Cott UK Acquisition Limited, Cott Ventures Limited and Cott Ventures UK Limited. As used herein, the term Canadian
Guarantors shall mean 156775 Canada Inc., 967979 Ontario Limited, 804340 Ontario Limited and 2011438 Ontario Limited. As used herein, the term Luxembourg Guarantor shall mean Cott Luxembourg S.A.R.L. As used
herein, the term Notes shall include the Guarantees, unless the context otherwise requires. This Agreement is to confirm the agreement concerning the purchase of the Notes from the Issuer by the Initial Purchasers.
The Issuer previously issued $375,000,000 in aggregate principal amount of 8.125% Senior Notes due 2018 (the 2018
Notes) pursuant to an indenture, dated as of August 17, 2010 (the 2018 Indenture), among the Issuer, the guarantors party thereto, and HSBC Bank USA, National Association, as trustee. In connection
with the offering of the Notes, the Issuer has commenced (a) a tender offer to purchase for cash any and all of the outstanding 2018 Notes and (b) a solicitation of consents from the holders of the 2018 Notes to amend the 2018 Indenture.
The tender offer for the 2018 Notes and the related solicitation of consents to amend the 2018 Indenture are collectively referred to herein as the
Tender Offer. The Company has engaged Merrill Lynch, Pierce, Fenner & Smith Incorporated to act as dealer manager and solicitation agent in connection with the
Tender Offer pursuant to a Dealer Manager and Solicitation Agent Agreement dated June 10, 2014.
1. Purchase and Resale of the
Notes. The Notes will be offered and sold to the Initial Purchasers without registration under the Securities Act, in reliance on an exemption pursuant to Section 4(a)(2) under the Securities Act. The Issuer and the Guarantors have prepared
a preliminary offering memorandum, dated June 10, 2014 (the Preliminary Offering Memorandum), a pricing supplement substantially in the form attached hereto as Schedule III (the Pricing
Supplement) setting forth the terms of the Notes omitted from the Preliminary Offering Memorandum and certain other information and a final offering memorandum, dated June 10, 2014 (the Offering
Memorandum), setting forth information regarding the Issuer, the Guarantors, the Notes, the Exchange Notes (as defined herein), the Guarantees and the Exchange Guarantees (as defined herein). The Preliminary Offering Memorandum, as
supplemented and amended as of the Applicable Time (as defined below), together with the Pricing Supplement and any of the documents listed on Schedule IV(A) hereto are collectively referred to as the Pricing Disclosure
Package. The Issuer and the Guarantors hereby confirm that they have authorized the use of the Pricing Disclosure Package and the Offering Memorandum in connection with the offering and resale of the Notes by the Initial Purchasers.
Applicable Time means 4:26 p.m. (New York City time) on the date of this Agreement.
Any reference to the
Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum shall be deemed to refer to and include the Companys most recent Annual Report on Form 10-K and all subsequent documents filed with the United States
Securities and Exchange Commission (the Commission) pursuant to Section 13(a), 13(c) or 15(d) of the United States Securities Exchange Act of 1934, as amended (the Exchange Act), on or prior
to the date of the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, as the case may be. Any reference to the Preliminary Offering Memorandum, Pricing Disclosure Package or the Offering Memorandum, as the
case may be, as amended or supplemented, as of any specified date, shall be deemed to include any documents filed with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act after the date of the Preliminary Offering
Memorandum, Pricing Disclosure Package or the Offering Memorandum, as the case may be, and prior to such specified date. All documents filed under the Exchange Act and so deemed to be included in the Preliminary Offering Memorandum, Pricing
Disclosure Package or the Offering Memorandum, as the case may be, or any amendment or supplement thereto are hereinafter called the Exchange Act Reports.
You have advised the Issuer that you will offer and resell (the Exempt Resales) the Notes purchased by you hereunder
on the terms set forth in each of the Pricing Disclosure Package and the Offering Memorandum, as amended or supplemented, solely to (i) persons whom you reasonably believe to be qualified institutional buyers as defined in Rule 144A
under the Securities Act (QIBs), and (ii) outside the United States to certain persons who are not U.S. Persons (as defined in Regulation S under the Securities Act (Regulation S)) (such
persons, Non-U.S. Persons) in offshore transactions in reliance on Regulation S. As used herein, the terms offshore transaction and United States have the meanings assigned to them in Regulation S.
Those persons specified in clauses (i) and (ii) are referred to herein as Eligible Purchasers.
Holders (including subsequent transferees) of the Notes will have the registration rights set forth in the registration rights agreement (the
Registration Rights Agreement) among the Issuer, the Guarantors and the Initial Purchasers to be dated the Closing Date. Pursuant to the Registration Rights Agreement, the Issuer and the Guarantors will agree to file with
the Commission under the circumstances set forth therein, a registration statement under the Securities Act relating to the Issuers 5.375% Senior Notes due 2022 (the Exchange Notes) and the Guarantors exchange
guarantees (the Exchange Guarantees) to be offered in exchange for the Notes and the Guarantees. Such portion of the offering is referred to as the Exchange Offer.
2
2. Representations, Warranties and Agreements of the Company, the Issuer and the
Subsidiary Guarantors. The Company, the Issuer and each of the Subsidiary Guarantors, jointly and severally, represent, warrant and agree as follows:
(a) The Offering. (i) When the Notes and Guarantees are issued and delivered pursuant to this Agreement, such Notes and Guarantees
will not be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Issuer or the Guarantors that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are
quoted in a United States automated inter-dealer quotation system.
(ii) Assuming the accuracy of your representations and
warranties in Section 3(b), the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt Resales) are exempt from the registration requirements of the Securities Act.
(iii) No form of general solicitation or general advertising within the meaning of Regulation D (including, but not limited to,
advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or
general advertising) was used by the Issuer, the Guarantors, any of their respective affiliates or any of their respective representatives (other than you, as to whom the Issuer and the Guarantors make no representation) in connection with the offer
and sale of the Notes.
(iv) No directed selling efforts within the meaning of Rule 902 under the Securities Act were used
by the Issuer, the Guarantors or any of their respective representatives (other than you, as to whom the Issuer and the Guarantors make no representation) with respect to Notes sold outside the United States to Non-U.S. Persons, and the Issuer, any
affiliate of the Issuer and any person acting on its or their behalf (other than you, as to whom the Issuer and the Guarantors make no representation) has complied with and will implement the offering restrictions required by Rule 902
under the Securities Act.
(v) Neither the Issuer, any Guarantor nor any other person acting on behalf of the Issuer or any
Guarantor has sold or issued any securities that would be integrated with the offering of the Notes contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission.
The Issuer and the Guarantors will take reasonable precautions designed to ensure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any
substantially similar security issued by the Issue or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Issuer by the Initial Purchasers), is made under restrictions
and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities
Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act.
(vi) Each of the
Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum, each as of its respective date, contains all the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
3
(vii) The Preliminary Offering Memorandum, the Pricing Disclosure Package and the
Offering Memorandum have been prepared by the Issuer and the Guarantors for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum, the Pricing Disclosure
Package or the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act has been issued, and no proceeding for that purpose has commenced or
is pending or, to the knowledge of the Issuer or any of the Guarantors is contemplated.
(viii) The Offering Memorandum
will not, as of its date or as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to information contained in or omitted from the Offering Memorandum in reliance upon and in conformity with written information furnished to the Issuer through the
Representative by or on behalf of any Initial Purchaser specifically for inclusion therein, which information is specified in Section 8(e).
(ix) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or
omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Issuer through the Representative by or on behalf of any Initial Purchaser specifically for inclusion therein, which information
is specified in Section 8(e).
(x) The Issuer has not made any offer to sell or solicitation of an offer to buy the
Notes that would constitute a free writing prospectus (if the offering of the Notes was made pursuant to a registered offering under the Securities Act), as defined in Rule 405 under the Securities Act (a Free Writing
Offering Document) without the prior consent of the Representative; any such Free Writing Offering Document the use of which has been previously consented to by the Initial Purchasers is listed on Schedule IV.
(xi) Each Free Writing Offering Document listed in Schedule IV(B) hereto, when taken together with the Pricing Disclosure
Package, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package (or Free Writing Offering Document listed in Schedule IV(B) hereto) in reliance upon and in conformity with
written information furnished to the Issuer through the Representative by or on behalf of any Initial Purchaser specifically for inclusion therein, which information is specified in Section 8(e).
(xii) Neither the Issuer nor the Guarantors have taken, directly or indirectly, any action that is designed to or that has
constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Issuer or the Guarantors to facilitate the sale or resale of the Notes.
(xiii) Immediately after the issuance and sale of the Notes, each of the Company, the Issuer and the Subsidiary Guarantors will
be Solvent. As used in this paragraph, the term Solvent means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company, the
Issuer or the
4
Subsidiary Guarantors, as applicable, are not less than the total amount required to pay the probable liabilities of the Company, the Issuer or the Subsidiary Guarantors, as applicable, on its
total existing debts and liabilities (including contingent liabilities) as they become absolute and matured, (ii) the Company, the Issuer or the Subsidiary Guarantors, as applicable, is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (iii) assuming the sale of the Notes as contemplated by this Agreement, the Pricing Disclosure Package and the Offering
Memorandum, the Company, the Issuer or the Subsidiary Guarantors, as applicable, is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature, (iv) neither the Company, the Issuer nor the Subsidiary
Guarantors are engaged in any business or transaction, and are not about to engage in any business or transaction, for which its respective property would constitute unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which the Company, the Issuer or the Subsidiary Guarantors, as applicable, are engaged, and (v) neither the Company, the Issuer nor the Subsidiary Guarantors, are a defendant in any civil action that would result in
a judgment that the Company, the Issuer or the Subsidiary Guarantors, as applicable, is or would become unable to satisfy. In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at
the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(b) Exchange Act Reports. The Exchange Act Reports, when they were or hereafter are filed with the Commission, conformed or will
conform in all material respects to the applicable requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder. The Exchange Act Reports did not and will not, when filed with the Commission, contain an
untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Power and Authority. The Company, the Subsidiary Guarantors and each of the Material Subsidiaries (as defined below) has been duly
incorporated, continued or amalgamated, as the case may be, and organized and is existing under the laws of its respective jurisdiction of incorporation, continuance or amalgamation and has all requisite corporate power, capacity and authority to
carry on its business as now conducted or contemplated to be conducted and to own, lease and operate its property and assets and, in the case of the Company, the Issuer and the Subsidiary Guarantors, to execute, deliver and perform its obligations
hereunder. The Company, the Subsidiary Guarantors and each of the Material Subsidiaries is duly qualified to do business and is in good standing as a foreign or extra-provincial corporation or other business entity in each jurisdiction in which its
ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect (as defined below). Material
Subsidiaries mean, collectively, Cott Beverages Limited, Cott Beverages Inc., Northeast Retailer Brands LLC and Cliffstar LLC.
(d) Corporate Action. All necessary corporate action has been taken by the Issuer and each Guarantor to authorize the issuance, sale
and delivery of the Notes on the terms set forth in this Agreement and, upon payment therefor, the Notes will be validly issued and outstanding as fully paid and non-assessable.
(e) The Offering Documents.
(i) The Indenture. The Issuer and each Guarantor has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Indenture. The
5
Indenture has been duly and validly authorized by the Issuer and each Guarantor, and upon its execution and delivery and, assuming due authorization, execution and delivery by the Trustee, will
constitute the valid and binding agreement of the Issuer and each Guarantor, enforceable against the Issuer and the Guarantors in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought. No qualification of the Indenture under the Trust Indenture Act of 1939 (the
Trust Indenture Act) is required in connection with the offer and sale of the Notes contemplated hereby or in connection with the Exempt Resales. The Indenture will conform to the description thereof in each of the Pricing
Disclosure Package and the Offering Memorandum.
(ii) The Notes. The Issuer has all requisite corporate power and
authority to execute, issue, sell and perform its obligations under the Notes. The Notes have been duly authorized by the Issuer and, when duly executed by the Issuer in accordance with the terms of the Indenture, assuming due authentication of the
Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will be validly issued and delivered and will constitute valid and binding obligations of the Issuer entitled to the benefits
of the Indenture, enforceable against the Issuer in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and
except as limited by the application of equitable principles when equitable remedies are sought. The Notes will conform in all material respects to the description thereof in each of the Pricing Disclosure Package and the Offering Memorandum.
(iii) The Exchange Notes. The Issuer has all requisite corporate power and authority to execute, issue and perform its
obligations under the Exchange Notes. The Exchange Notes have been duly and validly authorized by the Issuer and if and when issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Exchange Offer
provided for in the Registration Rights Agreement, will be validly issued and delivered and will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture, enforceable against the Issuer in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when
equitable remedies are sought.
(iv) The Guarantees. Each Guarantor has all requisite corporate power and authority
to issue and perform its obligations under the Guarantees. The Guarantees have been duly and validly authorized by the Guarantors and when the Indenture is duly executed and delivered by the Guarantors in accordance with its terms and upon the due
execution, authentication and delivery of the Notes in accordance with the Indenture and the issuance of the Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute valid and binding obligations of the Guarantors,
enforceable against the Guarantors in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited
by the application of equitable principles when equitable remedies are sought. The Guarantees will conform in all material respects to the description thereof in each of the Pricing Disclosure Package and the Offering Memorandum.
(v) The Exchange Guarantees. Each Guarantor has all requisite corporate power and authority to issue and perform its
obligations under the Exchange Guarantees. The
6
Exchange Guarantees have been duly and validly authorized by the Guarantors and if and when delivered by the Guarantors in accordance with the terms of the Indenture and upon the due execution
and authentication of the Exchange Notes in accordance with the Indenture and the issuance and delivery of the Exchange Notes in the Exchange Offer contemplated by the Registration Rights Agreement, will be validly issued and delivered and will
constitute valid and binding obligations of the Guarantors entitled to the benefits of the Indenture, enforceable against the Guarantors in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought.
(vi) The Registration Rights Agreement. The Issuer and each Guarantor has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly authorized by the Issuer and each Guarantor and, when executed and delivered by the Issuer and each Guarantor in
accordance with the terms thereof, will be validly executed and delivered and (assuming the due authorization, execution and delivery thereof by you) will be the legally valid and binding obligation of the Issuer and each Guarantor in accordance
with the terms thereof, enforceable against the Issuer and each Guarantor in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and, as to rights of indemnification and contribution, by principles of public policy. The Registration Rights Agreement will
conform to the description thereof in each of the Pricing Disclosure Package and the Offering Memorandum.
(vii) This
Agreement. The Issuer and each Guarantor has all requisite corporate power to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Issuer and each
Guarantor.
(f) No Violation or Default. The issue and sale of the Notes and the Guarantees, the execution, delivery and
performance by the Issuer and the Guarantors of the Notes, the Guarantees, the Exchange Notes, the Exchange Guarantees, the Indenture, the Registration Rights Agreement and this Agreement, the application of the proceeds from the sale of the Notes
as described under Use of Proceeds in each of the Pricing Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated hereby and thereby, will not:
(i) result in any violation of any of the provisions of the constituting documents, by-laws or any resolutions of the directors
(or committees of directors) or shareholders of the Company or any of its subsidiaries;
(ii) conflict with, or result in a
breach or violation of any of the terms or provisions of, constitute a default under, or result in the creation or imposition of any encumbrance on the property or assets of the Issuer, the Guarantors or any of their subsidiaries pursuant to the
terms of any agreement, indenture, hypothec, deed of trust or instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, the Guarantors or any of their subsidiaries is bound or to which any of the
property or assets of the Issuer, the Guarantors or any of their subsidiaries is subject, except where such breach, violation, default or encumbrance would not have a material adverse effect on the assets, properties, business, affairs, results of
operations, prospects or condition (financial or otherwise) of the Company and its subsidiaries on a consolidated basis (a Material Adverse Effect); or
7
(iii) result in any violation of any statute or any order, law, rule or
regulation of any (A) court or (B) any (1) multinational, federal, provincial, state, municipal, local or other governmental or public department, central bank, court, commission, board, bureau, agency or instrumentality, domestic or
foreign; (2) any subdivision or authority of any of the foregoing; (3) any quasi-governmental, self-regulatory organization or private body exercising any regulatory, expropriation or taxing authority under or for the account of its
members or any of the above; or (4) any arbitrator exercising jurisdiction over the affairs of the applicable person, asset, obligation or other matter (collectively, a Governmental Body) having jurisdiction over the
Company or any of its subsidiaries or any of the properties or assets of the Company or any of its subsidiaries, except where such violation would not have a Material Adverse Effect.
(g) Consent of Governmental Body, etc. No consent, approval, authorization, order, registration or qualification of or with any court
or Governmental Body is required for the issuance and sale of the Notes and the Guarantees, the execution, delivery and performance by the Issuer and each of the Guarantors of the Notes, the Guarantees, the Exchange Notes, the Exchange Guarantees,
the Indenture, the Registration Rights Agreement and this Agreement, the application of the proceeds from the sale of the Notes as described under Use of Proceeds in each of the Pricing Disclosure Package and the Offering Memorandum and
the consummation of the transactions contemplated hereby and thereby, except for the filing of a registration statement by the Issuer with the Commission pursuant to the Securities Act as required by the Registration Rights Agreement and such
consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Initial Purchasers.
(h) Voting. Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, to the knowledge of the Company, there
is no agreement in force or effect which in any manner affects or will affect the voting or control of any of the securities of the Company or any of its subsidiaries.
(i) No Pre-Emptive Rights. No person, firm or corporation (except for the Initial Purchasers hereunder) has, or will have at the
Closing Date, any agreement or any option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement, for the purchase from the Company, the Issuer or the Subsidiary Guarantors, or issuance of, or subscription for, any
securities of the Company, the Issuer or the Subsidiary Guarantors, except as disclosed in the Pricing Disclosure Package and the Offering Memorandum or as may be granted pursuant to the Companys existing stock incentive plans, stock purchase
or similar plans offered to directors, officers and employees in the ordinary course of business or where the existence of such agreement, option, right or privilege, whether or not exercised, would not have a Material Adverse Effect.
(j) Subsidiaries. Other than the Material Subsidiaries, the Company has no subsidiaries which (i) hold in excess of 5% of the
consolidated assets of the Company as at the date of its most recently completed financial year end, (ii) earned in excess of 5% of the consolidated revenue or income of the Company during its most recently completed financial year, or
(iii) are otherwise material to the business of the Company. The subsidiaries which are not Material Subsidiaries (i) do not in the aggregate hold in excess of 10% of the consolidated assets of the Company as at the date of the most
recently completed financial year end, or (ii) do not earn in the aggregate in excess of 10% of the consolidated revenue or income of the Company during its most recently completed financial year. The Companys direct or indirect ownership
interest in each Material Subsidiary is held free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and all such securities have been validly issued and are outstanding as fully paid
and non-assessable.
8
(k) Compliance with Laws. The Company and each of its subsidiaries has complied with, is
not in violation of, and has not received any notice of violation relating to, any statute, law or regulation with respect to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation,
(i) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (ii) any laws, rules or regulations related to health, safety or the environment, including those relating to
the regulation of hazardous substances (iii) the Sarbanes-Oxley Act and the rules and regulations of the Commission thereunder that are effective with respect to the Company and its subsidiaries on the date of this Agreement, (iv) the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and (v) the Employment Retirement Income Security Act of 1974, as amended and the rules and regulations thereunder, in each case except where the
failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(l) Conduct of Business. The Company
and each of its subsidiaries has conducted and is conducting its business in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on business (except where non-compliance with such laws, rules or
regulations would not have a Material Adverse Effect), and holds all licenses, permits, registrations and qualifications which are material to the Company and its subsidiaries on a consolidated basis in all jurisdictions in which it carries on
business to carry on its business as now conducted and as presently proposed to be conducted and all such licenses, registrations or qualifications are valid and existing and in good standing except where such invalidity or inexistence would not
have a Material Adverse Effect.
(m) Licenses and Permits. The Company and each of its subsidiaries possess all licenses, permits,
franchises, certificates, registrations and authorizations necessary to conduct their business and own their property and assets and are not in default or breach of any of the foregoing, except for failures to possess, defaults or breaches which
would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect, all such licenses, permits, franchises, certificates, registrations or authorizations are renewable on terms or conditions that would not reasonably
be expected to have a Material Adverse Effect and no proceeding is pending or threatened to revoke or limit any of the foregoing.
(n)
No Violation or Default. No event of default, and no event which after the giving of notice or the lapse of time or both would constitute an event of default, has occurred and is outstanding under any agreement or instrument relating to the
indebtedness for borrowed money of the Company or any of its subsidiaries and no default under any agreement to which the Company or any of its subsidiaries is a party will occur as a result of the entering into of this Agreement or the performance
by the Issuer and each Guarantor of its obligations thereunder, which event of default or default would have a Material Adverse Effect.
(o) Litigation. Except as is disclosed in the Pricing Disclosure Package and the Offering Memorandum, there is no action, suit,
proceeding or inquiry before any court, Governmental Body, pending or to the Companys knowledge threatened, to which the Company or any of its subsidiaries is a party or to which any property or assets of the Company or any of its subsidiaries
is subject, which would reasonably be expected to have a Material Adverse Effect, or which would reasonably be expected to negatively affect the performance by the Issuer and each of the Guarantors of the performance of this Agreement, the
Indenture, the Notes, the Guarantees, the Exchange Notes, the Exchange Guarantees, the Registration Rights Agreement or the consummation of any of the transactions contemplated hereby or thereby.
(p) Cease Trade Orders. No Governmental Body has issued any order preventing or suspending the trading of the Companys
securities, the use of the Pricing Disclosure Package or the
9
Offering Memorandum or the issuance and sale of the Notes and the Company is not aware of any investigation, order, inquiry or proceeding which has been commenced or which is pending,
contemplated or threatened by any such authority.
(q) Tax. The Company and each of its subsidiaries have filed all federal, state,
provincial, local and foreign tax returns which are required to be filed through the date hereof, or have received extensions thereof, and have paid all applicable taxes and all assessments received by them to the extent that the same have become
due, except where, in any such case, the failure to make such filing or payment would not have a Material Adverse Effect and except for those taxes and assessments that are currently being challenged and for which a reserve has been taken. There are
no tax audits or investigations pending, which if adversely determined would have a Material Adverse Effect. There are no proposed additional tax assessments against the Company or any of its subsidiaries which would reasonably be expected to have a
Material Adverse Effect.
(r) Authorized Capital. The authorized and issued share capital of the Company is as set out in the
Pricing Disclosure Package and the Offering Memorandum and all securities of the Company described in the Pricing Disclosure Package and the Offering Memorandum as having been issued have been validly issued and are outstanding as fully paid and
non-assessable.
(s) Financial Information. Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, the
Financial Information (as defined below) contained, or incorporated by reference, in the Pricing Disclosure Package and the Offering Memorandum, together with the notes thereto, have been prepared in accordance with accounting principles generally
accepted in the United States (GAAP) and present fairly, in all material respects, the financial condition and the results of operations, changes in shareholders equity, and cash flow of the business as at the dates and for
the periods referred to in those financial statements. Financial Information means any financial statements, auditors reports, accounting data and other numerical data contained in the Pricing Disclosure Package or
the Offering Memorandum or any document incorporated by reference therein. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Offering Memorandum and the Pricing Disclosure Package fairly
present the information called for in all material respects and have been prepared in accordance with the Commissions rules and guidelines applicable thereto.
(t) Company Financial Statements. The consolidated financial statements of the Company, together with the related notes,
included or incorporated by reference in the Pricing Disclosure Package and the Offering Memorandum comply in all material respects with the requirements of the Securities Act and the Exchange Act and fairly present the financial condition of the
Company and its subsidiaries as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in conformity with GAAP consistently applied throughout the periods involved; and the supporting
schedules included or incorporated by reference in the Pricing Disclosure Package and the Offering Memorandum present fairly the information required to be stated therein. The data set forth under the caption Summary Financial Data in
the Pricing Disclosure Package and the Offering Memorandum presents fairly the information shown therein and has been prepared, in all material respects, on a basis consistent with that of the financial statements presented therein and the books and
records of the Company.
(u) Auditors. To the Companys knowledge, PricewaterhouseCoopers LLP, which has expressed its opinion
with respect to the Companys financial statements and schedules included or incorporated by reference in the Pricing Disclosure Package and the Offering Memorandum, is an independent public accounting firm with respect to the Company and its
subsidiaries within the meaning of the Securities Act and the rules and regulations of the Commission thereunder and the rules and regulations of the Public Company Accounting Oversight Board (the PCAOB).
10
(v) Market Data. All statistical or market-related data included or incorporated by
reference in the Pricing Disclosure Package and the Offering Memorandum is based on or derived from sources that the Company reasonably believes to be reliable and accurate.
(w) Indebtedness. Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, for ordinary course trade debt and
debt secured by Permitted Liens (as defined below), none of the Company or its subsidiaries has outstanding any bonds, debentures, notes, mortgages or other indebtedness for borrowed money and none of the Company or its subsidiaries has agreed to
create or issue any bonds, debentures, notes, mortgages or other indebtedness for borrowed money. Other than as disclosed in the Pricing Disclosure Package and the Offering Memorandum, none of the Company or its subsidiaries has given or agreed to
give, and is not a party to or bound by, any guarantee of (i) indebtedness (other than any indebtedness entered into or acquired in connection with the Companys acquisition of Aimia Foods (Holdings) Limited (Aimia
Foods) pursuant to the Share Purchase Agreement, dated as of May 30, 2014, by and among Robert Unsworth and others, Cott Ventures Limited, Cott Corporation and Cott Beverages Limited), (ii) other obligations of any person or
(iii) any other commitment by which any of the Company or its subsidiaries is, or is contingently, responsible for any such indebtedness or other obligations. Permitted Liens means (i) Liens (as defined below) for
taxes and other obligations owing to Governmental Bodies and assessments not yet due or delinquent or that are being contested in good faith by appropriate proceedings, (ii) Liens imposed by Law and incurred in the ordinary course for
obligations not yet due or delinquent, (iii) Liens in respect of pledges or deposits under workers compensation, social security or similar Laws, (iv) easements, restrictions and reservations of record, if any, that do not materially
detract from the value of or materially impair the use of the property affected, (v) building and zoning by-laws, Laws, ordinances and regulations that do not materially detract from the value of or materially impair the use of the property
affected, (vi) Liens securing indebtedness reflected in the Companys financial statements, and (vii) other Liens or imperfections on property which are not material in amount and do not materially detract from the value of or
materially impair the existing use of the property affected by such Lien or imperfections; and Liens means any mortgage, charge, pledge, hypothecation, security interest, assignment, lien (statutory or otherwise), charge,
title retention agreement or arrangement, restrictive covenant or other encumbrance of any nature, including any arrangement or condition which, in substance, secures payment or performance of an obligation.
(x) Contingent Liabilities. Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, the Company and its
subsidiaries do not have any contingent liabilities in excess of the liabilities that are either reflected or reserved against in the Financial Information which would reasonably be expected to have a Material Adverse Effect on the condition of the
Company.
(y) Off-Balance Sheet Transactions. Other than as disclosed in the Financial Information, there are no off-balance sheet
transactions, arrangements, obligations (including contingent obligations) or other relationships of the Company or any of its subsidiaries with unconsolidated entities or other persons that may have a material current or future effect on the
financial condition, changes in financial condition, results of operations, earnings, cash flow, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses of the Company and its subsidiaries or that would
reasonably be expected to be material to an investor in making a decision to purchase the Notes.
(z) Related Party Matters. Except
as disclosed in the Pricing Disclosure Package and the Offering Memorandum, none of the officers or employees of the Company or any of its subsidiaries, any person who owns, directly or indirectly, more than 10% of any class of securities of the
11
Company or securities of any person exchangeable for more than 10% of any class of securities of the Company, or any associate or affiliate of any of the foregoing, had or has any material
interest, direct or indirect, in any transaction or any proposed transaction with the Company or any of its subsidiaries which, as the case may be, materially affects, is material to or will materially affect the Company and its subsidiaries on a
consolidated basis.
(aa) Internal Controls. The Company and each of its subsidiaries maintains a system of internal controls
sufficient to provide reasonable assurances that (i) transactions are executed in accordance with managements general or specific authorization; (ii) transactions are recorded as necessary to permit the financial statements to be
fairly presented in accordance with GAAP and to maintain accountability for assets; (iii) access to its assets is permitted only in accordance with managements general or specific authorization; (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to differences; (v) material information relating to the Company and its subsidiaries is made known to those within the Company
responsible for the preparation of the financial statements during the period in which the financial statements have been prepared and that such material information is disclosed to the public within the time periods required by applicable laws,
including all federal, provincial, state and local statutes, codes, ordinances, guidelines, decrees, rules, regulations and municipal by-laws and all judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders,
directives, decisions, rulings or awards or other requirements of any Governmental Body, binding on or affecting the Company (collectively, Law); and (vi) all significant deficiencies and material weaknesses in the
design or operation of such internal controls that could adversely affect the Companys ability to disclose to the public information required to be disclosed by it in accordance with applicable Law and all fraud, whether or not material, that
involves management or employees that have a significant role in the Companys internal controls have been disclosed to the audit committee of the Companys board of directors.
(bb) External Controls. (i) The Company and each of its subsidiaries maintain disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the information required to be disclosed by the Company and its subsidiaries in the reports they file or submit under
the Exchange Act is accumulated and communicated to management of the Company and its subsidiaries, including their respective principal executive officers and principal financial officers, as appropriate, to allow timely decisions regarding
required disclosure to be made, and (iii) such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.
(cc) Indebtedness of Directors, Officers, etc. Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, no
employee, officer, shareholder, or director (or affiliate of such person) of any of the Company or its Material Subsidiaries is indebted to any of the Company or its subsidiaries nor are any of the Company or its subsidiaries indebted (or committed
to make loans or extend or guarantee credit) to any of them, other than for (i) payment of salary, bonus and other employment or consulting compensation, (ii) reimbursement for expenses duly incurred in connection with the business,
affairs and operations of the Company, and (iii) for other standard employee benefits made generally available to all employees.
(dd) Employment-related Liabilities. Except as described in the Pricing Disclosure Package and the Offering Memorandum, the Company and
each of its Material Subsidiaries have satisfied all material obligations under, and there are no outstanding defaults or violations with respect to, and no
12
taxes, penalties, or fees are owing or exigible under or in respect of, any employee benefit, incentive, pension, retirement, stock option, stock purchase, stock appreciation, health, welfare,
medical, dental, disability, life insurance and similar plans, arrangements or practices relating to the current or former employees, officers or directors of the Company and its Material Subsidiaries maintained, sponsored or funded by them, whether
written or oral, funded or unfunded, insured or self-insured, registered or unregistered and all contributions or premiums required to be paid thereunder have been made in a timely fashion and any such plan or arrangement which is a funded plan or
arrangement is fully funded on an ongoing and termination basis.
(ee) Pension Plans. Except as described in the Pricing Disclosure
Package and the Offering Memorandum, none of the Company or its Material Subsidiaries currently sponsor, maintain, contribute to or have any liability to, nor has ever sponsored, maintained, contributed to or incurred any liability to a
registered pension plan, a deferred profit sharing plan or a retirement compensation arrangement as defined under the Income Tax Act (Canada) or any other plan organized and administered to provide pensions for
employees.
(ff) Labor Matters. Neither the Company nor any of its subsidiaries is involved in any labor dispute nor, to the best
of the Companys knowledge, is any such dispute threatened, which dispute in either case would have a Material Adverse Effect. The Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal
suppliers or contractors which would have a Material Adverse Effect.
(gg) Collective Agreement. Except as disclosed in the Pricing
Disclosure Package and the Offering Memorandum, (a) no collective agreement is currently being negotiated by any of the Company, its subsidiaries or any other person in respect of the Companys business to the knowledge of the Company, and
(b) there are no collective agreements in force with respect to the employees employed in the Companys business. Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, no trade union, employee association or
other similar entity has any bargaining rights acquired by certification, voluntary recognition or successor rights with respect to the employees of the Company or its Material Subsidiaries or has applied, or to its knowledge, threatened to apply to
be certified as bargaining agent of the employees employed in the Companys business.
(hh) Compliance with Employment Laws.
Each of the Company and its subsidiaries is in compliance in all material respects with all terms and conditions of employment and all Laws respecting employment, including pay equity, wages and hours of work, occupational health and safety,
workplace safety and insurance/workers compensation and human rights, and there are no outstanding claims, complaints, investigations or orders under any such Laws, other than any such claims, complaints, investigations or orders that, in the
aggregate, would not have a Material Adverse Effect.
(ii) Assets. The Company and its subsidiaries have good and marketable title
to the property and assets owned by them and hold a valid leasehold interest in all property leased by them, in each case, free and clear of all mortgages, charges and other encumbrances other than those disclosed in the Pricing Disclosure Package
and the Offering Memorandum or those which would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(jj) Owned Real Property. Except in any such case as would not, individually or in aggregate, reasonably be expected to result in a
Material Adverse Effect, with respect to the real property owned by the Company or its subsidiaries (the Owned Real Property), (i) the Company or one of its subsidiaries, as applicable, has good and marketable title to
the Owned Real Property, free and clear of any Liens, except for Permitted Liens, and (ii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property, or any portion thereof or interest therein.
13
(kk) Leased Real Property. Except in any such case as would not, individually or in
aggregate, reasonably be expected to result in a Material Adverse Effect, with respect to the real property leased or subleased to the Company or its subsidiaries, (i) the lease or sublease for such property is enforceable, and none of the
Company or any of its subsidiaries or, to the knowledge of the Company, the landlord, is in breach of or default under such lease or sublease, and no event has occurred that, with notice, lapse of time or both, would constitute a breach or default
by any of the Company or its subsidiaries or permit termination, modification or acceleration by any third party thereunder, and (ii) no third party has repudiated or has the right to terminate or repudiate such lease or sublease (except for
the normal exercise of remedies in connection with a default thereunder or any termination rights set forth in the lease or sublease) or any provision thereof, except in each case, for such invalidity, failures to be binding, unenforceability,
ineffectiveness, breaches, defaults, terminations, modifications, accelerations, repudiations and rights to terminate or repudiate that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(ll) Significant Acquisitions/Dispositions. Except as disclosed in the Pricing Disclosure Package and the Offering Memorandum, no
acquisitions or dispositions have been made by any of the Company or its subsidiaries in the three most recently completed fiscal years that are significant acquisitions or significant dispositions, and none of the Company or
its subsidiaries are a party to any contract with respect to any transaction that would constitute a probable acquisition, in each case which would require disclosure in the Pricing Disclosure Package and the Offering Memorandum.
(mm) Insurance. The Company and its subsidiaries maintain insurance policies with reputable insurers, except where lack of such
policies would not have a Material Adverse Effect, against risks of loss of or damage to its properties, assets and business of such types and in such amounts as are customary in the case of entities engaged in the same or similar businesses and the
Company and its subsidiaries are not in default with respect to any provisions of such policies and have not failed to give any notice or to present any claim under any such policy in a due and timely fashion, except for such default or failure
which would not have a Material Adverse Effect.
(nn) Environmental Matters. Except as disclosed in the Pricing Disclosure Package
and the Offering Memorandum and except as would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (i) neither the Company nor any of its subsidiaries is in violation of any applicable Law relating to
pollution or occupational health and safety, the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including Laws relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, Hazardous Materials) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, Environmental Laws), (ii) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (iii) to the knowledge of the Company, there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or
violation, investigation or proceedings relating to any Environmental Laws against the Company or any of its subsidiaries and (iv) to the knowledge of the Company, there are no events or circumstances that would reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Body, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(oo) Intellectual Property. The Company and each of its subsidiaries is the absolute owner and, other than as disclosed in the
Pricing Disclosure Package and the Offering Memorandum, has
14
the sole and exclusive right to use, or is the licensee, sub-licensee or franchisee, as the case may be, of all material intellectual property used by it in its business. No event has occurred
during the registration or filing of, or during any other proceeding relating to, such intellectual property that would make invalid or unenforceable, or negate the right to use any material intellectual property of the Company or its subsidiaries.
The conduct of the business of the Company and its subsidiaries and the use of their intellectual property does not infringe, and neither the Company nor any of its subsidiaries has received any notice, complaint, threat or claim alleging
infringement of, any patent, trade mark, trade name, copyright, industrial design, trade secret or proprietary right of any other person, the infringement of which or the determination of any alleged infringement against the Company or its
subsidiaries would reasonably be expected to have a Material Adverse Effect, and the conduct of the business of the Company and its subsidiaries does not include any activity which may constitute passing off.
(pp) No Material Adverse Change. Since March 29, 2014, there has been no material adverse change (actual, anticipated,
contemplated or threatened) in the assets, properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or any of its subsidiaries considered on a consolidated basis except as reflected in the Financial
Information or as otherwise set forth in the Pricing Disclosure Package or the Offering Memorandum, and the business and material property and assets of the Company and its subsidiaries conform in all material respects to the descriptions thereof
contained in the Pricing Disclosure Package and the Offering Memorandum.
(qq) Ordinary Course Business. Except as reflected in the
Financial Information or as otherwise set forth in the Pricing Disclosure Package and the Offering Memorandum, since March 29, 2014, the business, affairs and operations of the Company and each of its subsidiaries, considered on a consolidated
basis, has been carried on in a manner consistent with the past practices of such business and in the ordinary course of the normal day-to-day operations of such business.
(rr) Books and Records. The minute books and corporate records of the Company and its Material Subsidiaries made available to
Shearman & Sterling LLP, counsel to the Underwriters, or their local agent counsel in connection with due diligence investigations of the Company and its Material Subsidiaries for the periods from their respective dates of incorporation,
continuance or amalgamation, as the case may be, to the date of examination thereof are the original minute books and records of the Company and its Material Subsidiaries and contain copies of all proceedings (or certified copies thereof) of the
shareholders, the board of directors and all committees of the board of directors of the Company and its Material Subsidiaries and there have been no other meetings, resolutions or proceedings of the shareholders, board of directors or any committee
of the board of directors of the Company or its Material Subsidiaries to the date of review of such corporate records and minute books not reflected in such minute books and other corporate records.
(ss) Broker Fees. Other than the Initial Purchasers, there is no person acting or purporting to act at the request of the Company, who
is entitled to any brokerage or agency fee in connection with the offering and sale of the Notes.
(tt) Use of Proceeds. The
Company shall use the net proceeds from the sale of the Notes in the manner described in the Pricing Disclosure Package and the Offering Memorandum.
(uu) Dividend Restrictions. No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to
the Company or a Guarantor or from making any other distribution on such subsidiarys capital stock in each case out of its net income or built up capital, or from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiarys property or assets to the Company or any Guarantor, except as described in the Pricing Disclosure Package and the Offering Memorandum.
15
(vv) Investment Company Act. Neither the Issuer nor the Guarantors is, and after giving
effect to the offer and sale of the Notes and the application of the proceeds therefrom as described under Use of Proceeds in each of the Pricing Disclosure Package and the Offering Memorandum will be, an investment company
as such term is defined in the Investment Company Act of 1940, as amended.
(ww) Certain Statements. The statements set forth in
each of the Pricing Disclosure Package and the Offering Memorandum under the caption Description of Notes, insofar as they purport to constitute a summary of the terms of the Notes and the Guarantees and under the captions Certain
United States Federal Income Tax Considerations, Description of Other Indebtedness, Exchange Offer; Registration Rights and Plan of Distribution, insofar as they purport to summarize the provisions of the
laws and documents referred to therein, are accurate summaries in all material respects.
(xx) FCPA. Neither the Company nor any of
its subsidiaries, nor, to the knowledge of the Company, the Issuer and the Guarantors, any director, officer, agent, employee or other person associated with or acting on behalf of the Company, the Issuer, the Guarantors or any of their respective
subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(yy) Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(zz) OFAC. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee
or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of Commerce or the U.S. Department of State,
the European Union, Her Majestys Treasury, or other sanctions authority (collectively, Sanctions), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the
subject of Sanctions. The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, (i) to fund any
activities of or business with any person that, at the time of such funding, is the subject of Sanctions, or is in Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan, Syria or in any other country or territory, that, at the time of such funding,
is the subject of Sanctions, or (ii) in any other manner that will result in a violation by any person (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise) of Sanctions.
Any certificate signed by any officer of the Company or any Guarantor and delivered to the Representative or counsel for the Initial
Purchasers in connection with the offering of the Notes shall be deemed a representation and warranty by the Company or such Guarantor, jointly and severally, as to matters covered thereby, to each Initial Purchaser.
16
3. Purchase of the Notes by the Initial Purchasers, Agreements to Sell, Purchase and
Resell.
(a) The Issuer and the Guarantors, jointly and severally hereby agree, on the basis of the representations, warranties,
covenants and agreements of the Initial Purchasers contained herein and subject to all the terms and conditions set forth herein, to issue and sell to the Initial Purchasers and, upon the basis of the representations, warranties and agreements of
the Issuer and the Guarantors herein contained and subject to all the terms and conditions set forth herein, each Initial Purchaser agrees, severally and not jointly, to purchase from the Issuer, at a purchase price of 98.5% of the principal amount
thereof, the principal amount of Notes set forth opposite the name of such Initial Purchaser in Schedule I hereto. The Issuer and the Guarantors shall not be obligated to deliver any of the securities to be delivered hereunder except upon payment
for all of the securities to be purchased as provided herein.
(b) Each of the Initial Purchasers, severally and not jointly, hereby
represents and warrants to the Issuer that it will offer the Notes for sale upon the terms and conditions set forth in this Agreement and in the Pricing Disclosure Package. Each of the Initial Purchasers, severally and not jointly, hereby represents
and warrants to, and agrees with, the Issuer, on the basis of the representations, warranties and agreements of the Issuer and the Guarantors, that such Initial Purchaser: (i) is a QIB with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and risks of an investment in the Notes; (ii) is purchasing the Notes pursuant to a private sale exempt from registration under the Securities Act; (iii) in connection with
the Exempt Resales, will solicit offers to buy the Notes only from, and will offer to sell the Notes only to, the Eligible Purchasers in accordance with this Agreement and on the terms contemplated by the Pricing Disclosure Package; and
(iv) will not offer or sell the Notes, nor has it offered or sold the Notes by, or otherwise engaged in, any form of general solicitation or general advertising (within the meaning of Regulation D, including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising)
and will not engage in any directed selling efforts within the meaning of Rule 902 under the Securities Act, in connection with the offering of the Notes. The Initial Purchasers have advised the Issuer that they will offer the Notes to Eligible
Purchasers at a price initially equal to 100.000% of the principal amount thereof, plus accrued interest, if any, from the date of issuance of the Notes. Such price may be changed by the Initial Purchasers at any time without notice.
(c) The Initial Purchasers have not nor, prior to the later to occur of (A) the Closing Date and (B) completion of the distribution
of the Notes, will not use, authorize use of, refer to or distribute any material in connection with the offering and sale of the Notes other than (i) the Preliminary Offering Memorandum, the Pricing Disclosure Package, the Offering Memorandum,
(ii) any written communication that contains no issuer information (as defined in Rule 433(h)(2) under the Act) that was not included (including through incorporation by reference) in the Preliminary Offering Memorandum or any Free
Writing Offering Document listed on Schedule IV hereto, (iii) the Free Writing Offering Documents listed on Schedule IV hereto, (iv) any written communication prepared by such Initial Purchaser and approved by the Issuer in writing, or
(v) any written communication relating to or that contains the preliminary and/or final terms of the Notes or their offering and/or other information that was included (including through incorporation by reference) in the Preliminary Offering
Memorandum, the Pricing Disclosure Package or the Offering Memorandum.
(d) Each of the Initial Purchasers hereby acknowledges that upon
original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Notes (and all securities issued in exchange therefore or in substitution thereof) shall bear legends
substantially in the forms as set forth in the Transfer Restrictions section of the Pricing Disclosure Package and Offering Memorandum (along with such other legends as the Issuer and its counsel deem necessary).
17
Each of the Initial Purchasers understands that the Issuer and, for purposes of the opinions to
be delivered to the Initial Purchasers pursuant to Sections 7(c) and 7(g) hereof, counsel to the Issuer and counsel to the Initial Purchasers, will rely upon the accuracy and truth of the foregoing representations, warranties and agreements, and the
Initial Purchasers hereby consent to such reliance.
4. Delivery of the Notes and Payment Therefor. Delivery to the Initial
Purchasers of and payment for the Notes shall be made at the office of Shearman & Sterling LLP at 9:00 A.M., New York City time, on June 24, 2014 (the Closing Date). The place of closing for the Notes and the
Closing Date may be varied by agreement between the Initial Purchasers and the Issuer.
The Notes will be delivered to the Initial
Purchasers, or the Trustee as custodian for The Depository Trust Company (DTC), against payment by or on behalf of the Initial Purchasers of the purchase price therefor by wire transfer in immediately available funds, by
causing DTC to credit the Notes to the account of the Initial Purchasers at DTC. The Notes will be evidenced by one or more global securities in definitive form (the Global Notes) and will be registered in the name of
Cede & Co. as nominee of DTC. The Notes to be delivered to the Initial Purchasers shall be made available to the Initial Purchasers in New York City for inspection and packaging not later than 9:00 A.M., New York City time, on the business
day next preceding the Closing Date.
5. Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and
severally, agree with each of the Initial Purchasers as follows:
(a) The Issuer and the Guarantors will furnish to the Initial
Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes and Guarantees hereunder, the Issuer and the Guarantors will prepare the Offering Memorandum in a form approved
by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised and to which they shall reasonably object
after being so advised.
(c) The Issuer and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering
Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or
information becomes known that, in the judgment of the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Memorandum so that the Pricing
Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Memorandum in order to comply with any law, the Issuer and the Guarantors will forthwith prepare an
appropriate supplement or amendment thereto, and will, subject to clause (b) above, expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
18
(e) None of the Issuer nor any Guarantor will make any offer to sell or solicitation of an offer
to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering
Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together
with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Issuer will give notice thereof to the Initial Purchasers through the Representative and, if requested by the
Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale
under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; provided that in connection therewith the Issuer shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify,
(ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Memorandum, the Issuer and the
Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the
future of) any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, or sell or grant options, rights or warrants with
respect to such debt securities of the Company or the Issuer or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or the Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments,
with respect to the registration of debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly
announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Merrill Lynch,
Pierce, Fenner & Smith Incorporated, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Issuer and the Guarantors will, furnish at their expense to the Initial Purchasers, and,
upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any) unless such information is publicly available.
19
(i) The Issuer and the Guarantors will apply the net proceeds from the sale of the Notes to be
sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Memorandum under the caption Use of Proceeds.
(j) The Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or
general advertising (as those terms are defined in Regulation D under the Securities Act), or by means of any directed selling efforts (as defined in Rule 902 under the Securities Act and the Commissions Release No. 33-6863) in the
United States in connection with any Notes being offered and sold pursuant to Regulation S under the Securities Act.
(k) The Issuer, the
Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably could be expected to cause or result in the stabilization or manipulation of the price of any
security of the Issuer or the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their
reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors
will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of
their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not
to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the
Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(o) The Issuer and the Guarantors agree to
comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes by DTC for book entry
transfer.
(p) The Issuer will indemnify and hold harmless the Initial Purchasers in their capacities as such against any documentary,
stamp or similar issuance tax, including any interest and penalties imposed thereon, on the creation, issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made
without any withholding or deduction from or through which payment is made for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction
had been made.
(q) The Issuer and the Guarantors will do and perform all things required or necessary to be done and performed under this
Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers obligations hereunder to purchase the Notes.
6. Expenses. Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Issuer
and the Guarantors, jointly and severally, agree, to pay all expenses, costs, fees and taxes incident to and in connection with: (a) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Pricing
Disclosure Package and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all
20
amendments and supplements thereto (including the fees, disbursements and expenses of the Issuers and the Guarantors accountants and counsel, but not, however, legal fees and expenses
of the Initial Purchasers counsel incurred in connection therewith except as otherwise provided herein); (b) the preparation, printing (including, without limitation, word processing and duplication costs) and delivery of this Agreement,
the Indenture, the Registration Rights Agreement, all Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection therewith and with the Exempt Resales (but not, however, legal fees
and expenses of the Initial Purchasers counsel incurred in connection with any of the foregoing other than fees of such counsel plus reasonable disbursements incurred in connection with the preparation, printing and delivery of such Blue Sky
memoranda except as otherwise provided herein); (c) the issuance and delivery by the Issuer of the Notes and by the Guarantors of the Guarantees and any taxes payable in connection therewith; (d) the qualification of the Notes and Exchange
Notes for offer and sale under the securities or Blue Sky laws of the several states and any foreign jurisdictions as the Initial Purchasers may designate (including, without limitation, the reasonable fees and disbursements of the Initial
Purchasers counsel relating to such registration or qualification); (e) the furnishing of such copies of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum, and all amendments and supplements
thereto, as may be reasonably requested for use in connection with the Exempt Resales; (f) the preparation of certificates for the Notes (including, without limitation, printing and engraving thereof); (g) the approval of the Notes by DTC
for book-entry transfer (including fees and expenses of counsel for the Initial Purchasers); (h) the rating of the Notes and the Exchange Notes; (i) the obligations of the Trustee, any agent of the Trustee and the counsel for
the Trustee in connection with the Indenture, the Notes, the Guarantees, the Exchange Notes, and the Exchange Guarantees; (j) the performance by the Issuer and the Guarantors of their other obligations under this Agreement; (k) all travel
expenses (excluding expenses related to chartered aircraft) of each Initial Purchaser and the Issuers officers and employees and any other expenses of each Initial Purchaser and the Issuer in connection with attending or hosting meetings with
prospective purchasers of the Notes, and expenses associated with any electronic road show; provided that any expenses of the Initial Purchasers paid or reimbursed by the Issuer and the Guarantors pursuant to clause (k) of this
Section 6, but excluding such expenses of the Issuers officers and employees and expenses associated with any electronic road show, shall not exceed $50,000; and (l) 50% of all expenses related to aircraft chartered in connection
with the road show.
7. Conditions to Initial Purchasers Obligations. The respective obligations of the Initial Purchasers
hereunder are subject to the accuracy, when made and on and as of the Closing Date, of the representations and warranties of the Company, the Issuer and the Guarantors contained herein, to the performance by the Issuer and the Guarantors of their
respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have
discovered and disclosed to the Issuer on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of
Shearman & Sterling LLP, counsel to the Initial Purchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances
then prevailing, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity
of this Agreement, the Notes, the Guarantees, the Exchange Notes, the Exchange Guarantees, the Registration Rights Agreement, the Indenture, the Pricing Disclosure Package and the Offering Memorandum, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Issuer and the Guarantors shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
21
(c) Kirkland & Ellis LLP shall have furnished to the Initial Purchasers its written
opinion, as counsel to the Issuer and the Subsidiary Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit A hereto.
(d) Page, Scrantom, Sprouse, Tucker & Ford, P.C. shall have furnished to the Initial Purchasers its written opinion, as special
counsel to the Issuer, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit B hereto.
(e) Squire Patton Boggs (UK) LLP shall have furnished to the Initial Purchasers its written opinion, as counsel to the UK Guarantors,
addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit C hereto.
(f) Goodmans LLP shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company and the Canadian Guarantors,
addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit D hereto.
(g) The Initial Purchasers shall have received from Shearman & Sterling LLP, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of the Notes, the Pricing Disclosure Package, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Issuer shall have
furnished to such counsel such documents and information as such counsel reasonably requests for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP, a letter, in form
and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (1) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning
of the Securities Act and the rules and regulations of the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (2) stating, as of the
date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date
hereof), the conclusions and findings of such firm with respect to the financial information and (3) covering such other matters as are ordinarily covered by accountants comfort letters to underwriters in connection with
registered public offerings.
(i) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and
delivered to the Initial Purchasers concurrently with the execution of this Agreement (the PWC initial letter), the Issuer shall have furnished to the Initial Purchasers a bring-down letter of such accountants,
addressed to the Initial Purchasers and dated the Closing Date (1) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of the Securities Act and the rules and regulations
of the PCAOB and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (2) stating, as of the Closing Date (or, with respect to matters involving
changes or developments since the respective dates as of which specified financial information is given in each of the Pricing Disclosure Package or the Offering Memorandum, as of a date not more than three days prior to the date of the Closing
Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the PWC initial letter, and (3) confirming in all material respects the conclusions and findings set forth in the PWC
initial letter.
22
(j) Neither the Issuer, any Guarantor nor any of their respective subsidiaries shall have
sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Offering Memorandum, any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date, there shall not have been any change in the capital stock or long-term debt of the Issuer, any
Guarantor or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders equity, properties, management,
business or prospects of the Issuer, the Guarantors and their respective subsidiaries, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the
Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Pricing
Disclosure Package and the Offering Memorandum.
(k) The Company, the Issuer and each Guarantor shall have furnished or caused to be
furnished to the Initial Purchasers dated as of the Closing Date a certificate of the Chief Executive Officer and Chief Financial Officer of the Issuer and each Guarantor, or other officers satisfactory to the Initial Purchasers, as to such matters
as the Representative may reasonably request, including, without limitation, a statement that:
(i) The representations,
warranties and agreements of the Company, the Issuer and the Guarantors in Section 2 are true and correct on and as of the Closing Date, and the Issuer has complied with all its agreements contained herein and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) They have examined the Pricing
Disclosure Package and the Offering Memorandum, and, in their opinion, (A) the Pricing Disclosure Package, as of the Applicable Time, and the Offering Memorandum, as of its date and as of the Closing Date, did not and do not contain any untrue
statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (B) since the date of the Pricing
Disclosure Package and the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Pricing Disclosure Package and the Offering Memorandum.
(l) Subsequent to the earlier of the Applicable Time and the execution and delivery of this Agreement (i) no downgrading shall have
occurred in the rating accorded any debt securities of the Company or the Issuer by any nationally recognized statistical rating organization, as that term is defined by the Commission for purposes of Rule 3(a)(62) under the Exchange
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company or the Issuer.
(m) The Notes shall be eligible for clearance and settlement through DTC.
(n) The Issuer and the Guarantors shall have executed and delivered a Registration Rights Agreement in form and substance reasonably
satisfactory to the Representative, including all of the provisions described in the Offering Memorandum and such other provisions as are customary for registration rights agreements in similar transactions.
23
(o) The Issuer, the Guarantors and the Trustee shall have executed and delivered the Indenture,
and the Initial Purchasers shall have received an original copy thereof, duly executed by the Issuer, the Guarantors and the Trustee.
(p)
Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NASDAQ, the Toronto Stock Exchange or other exchange, or
trading in any securities of the Company or the Issuer on any exchange, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal,
state or provincial authorities in the United States or Canada, (iii) the United States or Canada shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or Canada or there shall
have been a declaration of a national emergency or war by the United States or Canada, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a
result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States or Canada shall be such) or there shall have occurred any calamity or crisis, as to make it, in the
judgment of the Representative, impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum or that, in the
judgment of the Representative, could materially and adversely affect the financial markets or the markets for the Notes and other debt securities.
(q) On or prior to the Closing Date, the Issuer and the Guarantors shall have furnished to the Initial Purchasers such further certificates
and documents as the Initial Purchasers may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
8. Indemnification and Contribution.
(a) The Issuer and each Guarantor, hereby agree, jointly and severally, to indemnify and hold harmless each Initial Purchaser, its affiliates,
directors, officers and employees and each person, if any, who controls any Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Notes), to which that Initial Purchaser, affiliate, director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Free Writing Offering Document, the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto, (B) in any Blue Sky application or other
document prepared or executed by the Issuer or any Guarantor (or based upon any written information furnished by the Issuer or any Guarantor) specifically for the purpose of qualifying any or all of the Notes under the securities laws of any state
or other jurisdiction (any such application, document or information being hereinafter called a
24
Blue Sky Application), or (C) in any materials or information provided to investors by, or with the approval of, the Issuer or any Guarantor in connection with the
marketing of the offering of the Notes (Marketing Materials), including any road show or investor presentations made to investors by the Issuer (whether in person or electronically), or (ii) the omission or alleged
omission to state in any Free Writing Offering Document, the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, or in any amendment or supplement thereto, or in any Blue Sky Application or in any Marketing
Materials, any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse each Initial Purchaser and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Initial Purchaser, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Issuer and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Offering Memorandum, the Pricing Disclosure Package or Offering Memorandum, or in any such amendment or
supplement thereto, or in any Blue Sky Application or in any Marketing Materials, in reliance upon and in conformity with written information concerning such Initial Purchaser furnished to the Issuer through the Representative by or on behalf of any
Initial Purchaser specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability that the Issuer or the Guarantors may
otherwise have to any Initial Purchaser or to any affiliate, director, officer, employee or controlling person of that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, hereby agrees to indemnify and hold harmless the Issuer, each Guarantor, their
respective officers and employees, each of their respective directors, and each person, if any, who controls the Issuer or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Issuer, any Guarantor or any such director, officer, employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Free Writing Offering Document, Preliminary
Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto, (B) in any Blue Sky Application, or (C) in any Marketing Materials, or (ii) the omission or alleged omission to
state in any Free Writing Offering Document, Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, or in any amendment or supplement thereto, or in any Blue Sky Application or in any Marketing Materials any
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written information concerning such Initial Purchaser furnished to the Issuer through the Representative by or on behalf of that Initial Purchaser specifically for inclusion therein,
which information is limited to the information set forth in Section 8(e). The foregoing indemnity agreement is in addition to any liability that any Initial Purchaser may otherwise have to the Issuer, any Guarantor or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any
claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent it has been materially
prejudiced (through the forfeiture of substantive rights or
25
defenses) by such failure and; provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party
otherwise than under paragraph (a) or (b) above. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of investigation; provided, however, that the Initial Purchasers shall have the right to employ counsel to represent jointly the Initial Purchasers and their respective
directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Initial Purchasers against the Issuer or any Guarantor under this Section 8, if
(i) the Issuer, the Guarantors and the Initial Purchasers shall have so mutually agreed; (ii) the Issuer and the Guarantors have failed within a reasonable time to retain counsel reasonably satisfactory to the Initial Purchasers;
(iii) the Initial Purchaser and their respective directors, officers, employees and controlling persons shall have reasonably concluded, based on the advice of counsel, that there may be legal defenses available to them that are different from
or in addition to those available to the Issuer and the Guarantors; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Initial Purchasers or their respective directors, officers, employees or
controlling persons, on the one hand, and the Issuer and the Guarantors, on the other hand, and representation of both sets of parties by the same counsel would present a conflict due to actual or potential differing interests between them, and in
any such event the fees and expenses of such separate counsel shall be paid by the Issuer and the Guarantors. No indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or
proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided
for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits received by the Issuer and the Guarantors, on the one hand, and the Initial Purchasers, on the other, from the offering of the Notes, 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 Issuer and the Guarantors,
on the one hand, and the Initial Purchasers, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer and the Guarantors, on the one hand, and the Initial Purchasers, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the
Notes purchased under this Agreement (before deducting expenses) received by the Issuer
26
and the Guarantors, on the one hand, and the total discounts and commissions received by the Initial Purchasers with respect to the Notes purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the Notes under this Agreement, in each case as set forth in this Agreement. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the Issuer, the Guarantors, or the Initial Purchasers, the intent of the parties and their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. For purposes of the preceding two sentences, the net proceeds deemed to be received by the Issuer shall be deemed to be also for the benefit of the Guarantors, and information supplied by the Issuer shall also
be deemed to have been supplied by the Guarantors. The Issuer, the Guarantors, and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation
(even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the
total discounts and commissions received by such Initial Purchase with respect to the sale to Eligible Purchasers of the Notes initially purchased by it exceeds the amount of any damages that such Initial Purchaser has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers obligations to contribute as provided in this Section 8(d) are several in proportion to their respective purchase obligations and not joint.
(e) The Initial Purchasers severally confirm and the Issuer and the Guarantors acknowledge and agree that the statements with respect to
the offering of the Notes by the Initial Purchasers set forth in the 5th, 8th, and 10th paragraphs (with respect to the Initial Purchasers only) under the section entitled Plan of Distribution in the Pricing Disclosure Package and the
Offering Memorandum constitute the only information concerning such Initial Purchasers furnished in writing to the Issuer or any Guarantor by or on behalf of the Initial Purchasers specifically for inclusion in the Preliminary Offering Memorandum,
the Pricing Disclosure Package and the Offering Memorandum or in any amendment or supplement thereto.
9. Defaulting Initial
Purchasers.
(a) If, on the Closing Date, any Initial Purchaser defaults in its obligations to purchase the Notes that it has
agreed to purchase under this Agreement, the remaining non-defaulting Initial Purchasers may in their discretion arrange for the purchase of such Notes by the non-defaulting Initial Purchasers or other persons satisfactory to the Issuer on the terms
contained in this Agreement. If, within 36 hours after any such default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such Notes, then the Issuer shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Initial Purchasers to purchase such Notes on such terms. In the event that within the respective prescribed periods, the non-defaulting Initial Purchasers notify the Issuer
that they have so arranged for the purchase of such Notes, or the Issuer notifies the non-defaulting Initial Purchasers that it has so arranged for the purchase of such Notes, either the non-defaulting Initial Purchasers or the Issuer may postpone
the Closing Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Issuer or counsel for the Initial Purchasers may be necessary in the Pricing Disclosure Package, the Offering Memorandum or in
27
any other document or arrangement, and the Issuer agrees to promptly prepare any amendment or supplement to the Pricing Disclosure Package or the Offering Memorandum that effects any such
changes. As used in this Agreement, the term Initial Purchaser includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule I hereto that, pursuant to this Section 9, purchases
Notes that a defaulting Initial Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase
of the Notes of a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Notes, then the Issuer shall have the right to require each non-defaulting Initial Purchaser to purchase the principal amount of Notes that such Initial Purchaser agreed to purchase
hereunder plus such Initial Purchasers pro rata share (based on the principal amount of Notes that such Initial Purchaser agreed to purchase hereunder) of the Notes of such defaulting Initial Purchaser or Initial Purchasers for
which such arrangements have not been made; provided that the non-defaulting Initial Purchasers shall not be obligated to purchase more than 110% of the aggregate principal amount of Notes that it agreed to purchase on the Closing Date
pursuant to the terms of Section 3.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Notes, or if the Issuer shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Initial Purchasers. Any termination of
this Agreement pursuant to this Section 9 shall be without liability on the part of the Issuer or the Guarantors, except that the Issuer and each of the Guarantors will continue to be liable for the payment of expenses as set forth in
Sections 6 and 11 and except that the provisions of Section 8 shall not terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Initial Purchaser of any liability it may have to the Issuer, the Guarantors or any non-defaulting Initial Purchaser for damages caused by its default.
10. Termination. The obligations of the Initial Purchasers hereunder may be terminated by the Initial Purchasers by notice given to and
received by the Issuer prior to delivery of and payment for the Notes if, prior to that time, any of the events described in Sections 7(j), (l) or (p) shall have occurred or if the Initial Purchasers shall decline to purchase the Notes for
any reason permitted under this Agreement.
11. Reimbursement of Initial Purchasers Expenses. If (a) the Issuer for any
reason fails to tender the Notes for delivery to the Initial Purchasers, or (b) the Initial Purchasers shall decline to purchase the Notes for any reason (other than pursuant to clauses (iii) or (iv) of Section 7(p)) permitted
under this Agreement, the Issuer and the Guarantors shall reimburse the Initial Purchasers for all reasonable out-of-pocket expenses (including fees and disbursements of counsel for the Initial Purchasers) incurred by the Initial Purchasers in
connection with this Agreement and the proposed purchase of the Notes, and upon demand the Issuer and the Guarantors shall pay the full amount thereof to the Initial Purchasers. If this Agreement is terminated pursuant to Section 9 by reason of
the default of one or more Initial Purchasers, the Issuer and the Guarantors shall not be obligated to reimburse any defaulting Initial Purchaser on account of those expenses.
28
12. Notices, etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to any Initial Purchaser, shall be delivered or sent by hand delivery, mail, telex, overnight courier or facsimile
transmission to Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, NY 10036, Attention: Debt Capital Markets Syndicate with a copy to Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York
10022, Attention: Jason Lehner (Fax: (646) 848-7974);
(b) if to the Issuer or any Guarantor, shall be delivered or sent by mail,
telex, overnight courier or facsimile transmission to Cott Corporation, 5519 W. Idlewild Avenue, Tampa, Florida 33634, Attention: Jason Ausher (Fax: (813) 881-1923), with a copy to Kirkland & Ellis LLP, 601 Lexington Avenue, New York,
New York 10022, Attention: Christian Nagler (Fax: (212) 446-4900);
provided, however, that any notice to an Initial Purchaser pursuant
to Section 8(c) shall be delivered or sent by hand delivery, mail, telex or facsimile transmission to such Initial Purchaser at its address set forth in its acceptance telex to Merrill Lynch, Pierce, Fenner & Smith Incorporated, which
address will be supplied to any other party hereto by Merrill Lynch, Pierce, Fenner & Smith Incorporated upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Issuer shall
be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Initial Purchasers by the Representative.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers,
the Issuer, the Guarantors and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that the representations, warranties, indemnities and agreements of the Issuer and
the Guarantors contained in this Agreement shall also be deemed to be for the benefit of directors, officers and employees of the Initial Purchasers and each person or persons, if any, controlling any Initial Purchaser within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 13, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
14. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuer, the Guarantors and the Initial Purchasers contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for
the Notes and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of any of them or any person controlling any of them.
15. Definition of the Terms Business Day, Affiliate, and Subsidiary. For purposes of this
Agreement, (a) business day means any day on which the New York Stock Exchange, Inc. is open for trading, and (b) affiliate and subsidiary have the meanings set forth in Rule 405 under the Securities
Act.
16. Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall
be governed by and construed in accordance with the laws of the State of New York.
17. Waiver of Jury Trial. The Issuer, the
Guarantors and each of the Initial Purchasers hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
29
18. Consent to Jurisdiction. The Parent Guarantor, the UK Guarantors, the Canadian
Guarantors and the Luxembourg Guarantor irrevocably (i) agree that any legal suit, action or proceeding against the Parent Guarantor, the UK Guarantors, the Canadian Guarantors or the Luxembourg Guarantor, as applicable, brought by the Initial
Purchasers or by any person who controls the Initial Purchasers arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any New York Court, (ii) waive, to the fullest extent they may effectively
do so, any objection which they may now or hereafter have to the laying of venue of any such proceeding and (iii) submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Parent Guarantor, the UK
Guarantors, the Canadian Guarantors and the Luxembourg Guarantor irrevocably waive any immunity to jurisdiction to which they may otherwise be entitled or become entitled (including sovereign immunity, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding against them arising out of or based on this Agreement or the transactions contemplated hereby which is instituted in any New York Court. The Parent Guarantor, the UK
Guarantors, the Canadian Guarantors and the Luxembourg Guarantor have appointed Cott Beverages Inc. as their authorized agent (the Authorized Agent) upon whom process may be served in any such legal suit, action or
proceeding against the Parent Guarantor, the UK Guarantors, the Canadian Guarantors and the Luxembourg Guarantor arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any New York Court by the
Initial Purchasers or by any person who controls the Initial Purchasers, expressly consent to the jurisdiction of any such court in respect of any such action, and waive any other requirements of or objections to personal jurisdiction with respect
thereto. The Parent Guarantor, the UK Guarantors, the Canadian Guarantors and the Luxembourg Guarantor represent and warrant that the Authorized Agent has agreed to act as such agent for service of process and agree to take any and all action,
including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Parent
Guarantor, the UK Guarantors, the Canadian Guarantors and the Luxembourg Guarantor, as applicable, shall be deemed, in every respect, effective service of process upon the Parent Guarantor, the UK Guarantors, the Canadian Guarantors or the
Luxembourg Guarantor, as applicable.
19. Judgment Currency. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the judgment currency) other than U.S. dollars, the Issuer and the Guarantors will indemnify the Initial Purchasers against any loss incurred by such Initial Purchasers as
a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which the Initial Purchasers
are able to purchase U.S. dollars with the amount of judgment currency actually received by the Initial Purchasers. The foregoing indemnity shall constitute a separate and independent obligation of the Issuer and the Guarantors and shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid. The term rate of exchange shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into U.S.
dollars.
20. No Fiduciary Duty. Each of the Issuer and the Guarantors acknowledges and agrees that in connection with this
offering, or any other services the Initial Purchasers may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or
subsequently made by the Initial Purchasers: (a) no fiduciary or agency relationship between the Issuer, any Guarantor and any other person, on the one hand, and the Initial Purchasers, on the other, exists; (b) the Initial Purchasers are
not acting as advisors, expert or otherwise, to the Issuer or the Guarantors, including, without limitation, with respect to the determination of the purchase price of the Notes, and such relationship between the Issuer and the Guarantors, on the
one hand, and the Initial Purchasers, on the other, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations that the Initial Purchasers
30
may have to the Issuer and the Guarantors shall be limited to those duties and obligations specifically stated herein; (d) the Initial Purchasers and their respective affiliates may have
interests that differ from those of the Issuer and the Guarantors; (e) the Issuer and the Guarantors have consulted their own legal, regulatory and financial advisors to the extent they deemed appropriate; and (f) the several Initial
Purchasers and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuer and the Guarantors, and the several Initial Purchasers have no obligation to disclose any of such
interests by virtue of any fiduciary or advisory relationship. The Issuer and the Guarantors hereby waive any claims that the Issuer and the Guarantors may have against the Initial Purchasers with respect to any breach of fiduciary duty in
connection with the Notes.
21. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by
facsimile or other electronic transmission (e.g. a pdf or tif) shall be effective as delivery of a manually executed counterpart thereof.
22. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
23. Authority of the Representative. Any action by the Initial Purchasers hereunder
may be taken by the Representative on behalf of the Initial Purchasers, any such action taken by the Representative shall be binding upon the Initial Purchasers.
24. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
25. Amendments. This Agreement may
not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party to whom the condition is meant to benefit.
31
If the foregoing correctly sets forth the agreement among the Issuer, the Guarantors, and the
Initial Purchasers, please indicate your acceptance in the space provided for that purpose below.
|
|
|
|
|
Very truly yours, |
|
COTT CORPORATION |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
COTT BEVERAGES INC. |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
156775 CANADA INC. |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
2011438 ONTARIO LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
804340 ONTARIO LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
967979 ONTARIO LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
CALYPSO SOFT DRINKS LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
[Signature Page to
Purchase Agreement]
|
|
|
|
|
CAROLINE LLC |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
CLIFFSTAR LLC |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
COOKE BROS. (TATTENHALL). LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
|
COOKE BROS HOLDINGS LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
|
COTT (NELSON) LIMITED |
|
|
By |
|
/s/ Gregory Leiter |
|
|
Name: |
|
Gregory Leiter |
|
|
Title: |
|
Director |
|
COTT ACQUISITION LIMITED |
|
|
By |
|
/s/ Joanne Lloyd-Davies |
|
|
Name: |
|
Joanne Lloyd-Davies |
|
|
Title: |
|
Director |
|
COTT ACQUISITION LLC |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
COTT BEVERAGES LIMITED |
|
|
By |
|
/s/ Gregory Leiter |
|
|
Name: |
|
Gregory Leiter |
|
|
Title: |
|
Director |
|
COTT DEVELOPMENTS LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
[Signature Page to
Purchase Agreement]
|
|
|
|
|
COTT EUROPE TRADING LIMITED |
|
|
By |
|
/s/ Gregory Leiter |
|
|
Name: |
|
Gregory Leiter |
|
|
Title: |
|
Director |
|
COTT HOLDINGS INC. |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
COTT LIMITED |
|
|
By |
|
/s/ Gregory Leiter |
|
|
Name: |
|
Gregory Leiter |
|
|
Title: |
|
Director |
|
COTT LUXEMBOURG S.A.R.L. |
|
|
By |
|
/s/ Joanne Lloyd-Davies |
|
|
Name: |
|
Joanne Lloyd-Davies |
|
|
Title: |
|
Class A Manager |
|
COTT NELSON (HOLDINGS) LIMITED |
|
|
By |
|
/s/ Gregory Leiter |
|
|
Name: |
|
Gregory Leiter |
|
|
Title: |
|
Director |
|
COTT PRIVATE LABEL LIMITED |
|
|
By |
|
/s/ Gregory Leiter |
|
|
Name: |
|
Gregory Leiter |
|
|
Title: |
|
Director |
|
COTT RETAIL BRANDS LIMITED |
|
|
By |
|
/s/ Gregory Leiter |
|
|
Name: |
|
Gregory Leiter |
|
|
Title: |
|
Director |
|
COTT UK ACQUISITION LIMITED |
|
|
By |
|
/s/ Joanne Lloyd-Davies |
|
|
Name: |
|
Joanne Lloyd-Davies |
|
|
Title: |
|
Director |
|
COTT U.S. ACQUISITION LLC |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
[Signature Page to
Purchase Agreement]
|
|
|
|
|
COTT USA FINANCE LLC |
|
|
By |
|
/s/ Ceasar Gonzalez |
|
|
Name: |
|
Ceasar Gonzalez |
|
|
Title: |
|
President |
|
COTT VENDING INC. |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
COTT VENTURES LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
|
COTT VENTURES UK LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
|
INTERIM BCB, LLC |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
MR FREEZE (EUROPE) LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
|
STAR REAL PROPERTY LLC |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Treasurer |
|
TT CALCO LIMITED |
|
|
By |
|
/s/ Jason Ausher |
|
|
Name: |
|
Jason Ausher |
|
|
Title: |
|
Director |
[Signature Page to
Purchase Agreement]
The foregoing Purchase Agreement is hereby confirmed and accepted by the Initial Purchasers as of
the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
|
|
|
|
|
Acting on behalf of itself and as the Representative of the several Initial Purchasers named in Schedule I hereto. |
|
|
By: |
|
Merrill Lynch, Pierce, Fenner & Smith |
|
|
Incorporated |
|
|
By: |
|
/s/ James Maultsby |
|
|
Managing Director |
[Signature Page to
Purchase Agreement]
SCHEDULE I
|
|
|
|
|
Initial Purchasers |
|
Principal Amount of Notes to be Purchased |
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
|
$ |
183,750,000 |
|
Credit Suisse Securities (USA) LLC |
|
|
105,000,000 |
|
Deutsche Bank Securities Inc. |
|
|
105,000,000 |
|
J.P. Morgan Securities LLC |
|
|
65,625,000 |
|
Wells Fargo Securities, LLC |
|
|
65,625,000 |
|
|
|
|
|
|
Total |
|
$ |
525,000,000 |
|
|
|
|
|
|
Schedule I - 1
SCHEDULE II
SUBSIDIARY GUARANTORS
156775 Canada Inc.
2011438 Ontario Limited
804340 Ontario Limited
967979 Ontario Limited
Calypso Soft Drinks Limited
Caroline LLC
Cliffstar LLC
Cooke Bros. (Tattenhall). Limited
Cooke Bros Holdings Limited
Cott (Nelson) Limited
Cott Acquisition Limited
Cott Acquisition LLC
Cott Beverages Limited
Cott Developments Limited
Cott Europe Trading Limited
Cott Holdings Inc.
Cott Limited
Cott Luxembourg S.A.R.L.
Cott Nelson (Holdings) Limited
Cott Private Label Limited
Cott Retail Brands Limited
Cott UK Acquisition Limited
Cott U.S. Acquisition LLC
Cott USA Finance LLC
Cott Vending Inc.
Cott Ventures Limited
Cott Ventures UK Limited
Interim BCB, LLC
Mr Freeze (Europe) Limited
Star Real Property LLC
TT Calco Limited
Schedule II - 1
SCHEDULE III
COTT BEVERAGES INC.
Pricing supplement
dated June 10, 2014 (this Pricing Supplement) to the preliminary offering memorandum dated June 10, 2014 of Cott Beverages Inc. (the Preliminary Offering Memorandum). This Pricing Supplement is qualified in its
entirety by reference to the Preliminary Offering Memorandum. The information in this Pricing Supplement supplements the Preliminary Offering Memorandum and supersedes the information in the Preliminary Offering Memorandum to the extent it is
inconsistent with the information in the Preliminary Offering Memorandum. Capitalized terms used in this Pricing Supplement but not defined have the meanings given them in the Preliminary Offering Memorandum.
|
|
|
|
|
|
|
|
|
Issuer |
|
Cott Beverages Inc. (the Issuer) |
|
|
Aggregate Principal Amount |
|
$525,000,000 |
|
|
Title of Securities |
|
5.375% Senior Notes due 2022 (the Notes) |
|
|
Issue Price |
|
100.000%, plus accrued interest, if any, from June 24, 2014 |
|
|
Coupon |
|
5.375% |
|
|
Yield Per Annum |
|
5.375% |
|
|
Gross Proceeds |
|
$525,000,000 |
|
|
Maturity |
|
July 1, 2022 |
|
|
Interest Payment Dates |
|
Semi-annually on January 1 and July 1 of each year, beginning on January 1, 2015 |
|
|
Record Dates |
|
December 15 and June 15 |
|
|
Optional Redemption |
|
On or after July 1, 2017, the Notes will be subject to redemption at any time and from time to time at the option of the Issuer, in whole or in part, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Additional Interest, if any, thereon to the applicable redemption date, if redeemed during the twelve-month period beginning on July 1 of the years indicated below: |
|
|
|
|
|
|
Year |
|
Percentage |
|
|
|
|
2017 |
|
|
104.031 |
% |
|
|
2018 |
|
|
102.688 |
% |
|
|
2019 |
|
|
101.344 |
% |
|
|
2020 and thereafter |
|
|
100.000 |
% |
|
Schedule III - 1
|
|
|
|
|
|
|
|
|
|
|
In addition, at any time and from time to time prior to July 1, 2017, the Issuer may at its option redeem all or a portion of the Notes at a redemption price equal to 100% of the principal amount thereof plus a
make-whole premium, using a discount rate of Treasuries plus 0.5%. |
|
|
Optional Redemption with Equity Proceeds |
|
At any time and from time to time prior to July 1, 2017, the Issuer may on any one or more occasions redeem up to 40% of the aggregate principal amount of the outstanding Notes at a redemption price of 105.375% of the
principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, thereon, to the redemption date, with the net cash proceeds from certain equity offerings. |
|
|
Pricing Date |
|
June 10, 2014 |
|
|
Settlement Date |
|
June 24, 2014 (T+10) |
|
|
Joint Book-Running Managers |
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse Securities (USA) LLC Deutsche Bank Securities
Inc. J.P. Morgan Securities LLC Wells Fargo Securities,
LLC |
|
|
Format |
|
144A/Regulation S with Registration Rights as set forth in the Preliminary Offering Memorandum |
|
|
CUSIP/ISIN Numbers |
|
144A CUSIP: 221643 AG4 144A ISIN:
US221643AG49 Regulation S CUSIP: U2201W AD1 Regulation S
ISIN: USU2201WAD12 |
The securities have not been registered under the Securities Act of 1933, as amended (the Securities Act), and
are being offered only to (1) qualified institutional buyers as defined in Rule 144A under the Securities Act and (2) outside the United States to non-U.S. persons in compliance with Regulation S under the Securities Act, and
this communication is only being distributed to such persons.
This communication is not an offer to sell the securities and it is not a
solicitation of an offer to buy the securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
Schedule III - 2
SCHEDULE IV
A. |
Pricing Supplement, substantially in the form of Schedule III hereto. |
B. |
Electronic roadshow presentation, dated June 10, 2014. |
Schedule IV - 1
Exhibit 99.1
|
|
|
Press Release |
|
|
CONTACT:
Jarrod
Langhans
Investor Relations
Tel: (813) 313-1732
Investorrelations@cott.com
COTT PRICES
OFFER OF $525 MILLION OF SENIOR NOTES
TORONTO, ON and TAMPA, FL June 10, 2014 Cott Corporation (NYSE:COT; TSX:BCB)
announced today that its wholly owned subsidiary, Cott Beverages Inc. (Cott Beverages), priced a private placement offering of $525 million in aggregate principal amount of senior notes (the New Notes). The New Notes will
mature on July 1, 2022 and interest on the New Notes will accrue and be payable semi-annually in arrears commencing January 1, 2015 at the rate of 5.375% per annum. The New Notes will yield gross proceeds to Cott Beverages of
approximately $525 million.
Cott Beverages expects to use the net proceeds from the offering to repurchase any and all of its outstanding 8.125% Senior
Notes due 2018 (the 2018 Notes) in its previously announced tender offer and consent solicitation (the Tender Offer) and the redemption of any of the 2018 Notes that remain outstanding if Cott Beverages purchases less than
all of the outstanding 2018 Notes in the Tender Offer, to repay any outstanding loans under its asset-based lending credit facility, to pay related fees and expenses and for general corporate purposes.
The settlement of the New Notes is expected to occur on June 24, 2014 and is subject to customary closing conditions.
This press release is for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any securities.
The New Notes have not been registered under the Securities Act of 1933, as amended (the Securities Act), or any state securities laws and, unless
so registered, may not be offered or sold in the United States except pursuant to an applicable exemption from the registration requirements of the Securities Act and applicable state securities laws.
Safe Harbor Statements
This press release
contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including statements regarding the offering of the New Notes, the principal amount
and maturity date of such notes, any possible completion of the offering of such notes and our use of the net proceeds from the offering of such notes. Forward-looking statements involve inherent risks and uncertainties and Cott cautions you that a
number of important factors could cause actual results to differ materially from those contained in any such forward-looking
|
|
|
Press Release |
|
|
statement. The forward-looking statements are based on assumptions regarding managements current plans and estimates. Management believes these assumptions to be reasonable but there is no
assurance that they will prove to be accurate. Factors that could cause actual results to differ materially from those described in this press release include those risks and uncertainties indicated from time to time in Cotts filings with the
Securities and Exchange Commission. Readers are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date hereof. Readers are urged to carefully review and consider the various disclosures, including
but not limited to risk factors contained in Cotts Annual Report on Form 10-K and its quarterly reports on Form 10-Q, as well as other periodic reports filed with the securities commissions. Cott does not undertake to update or revise any of
these statements in light of new information or future events, except as expressly required by applicable law.
2
Cott (NYSE:COT)
Historical Stock Chart
From Jun 2024 to Jul 2024
Cott (NYSE:COT)
Historical Stock Chart
From Jul 2023 to Jul 2024