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Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of May 23, 1996 by and among Xxxxx'x Food & Drug Centers,
Inc., a Delaware corporation (the "Company"), and each of the holders of the
Company's Common Stock (the "Common Stock") executing this Agreement (each a
"Holder" and collectively, the "Holders").
WHEREAS, pursuant to that certain Recapitalization Agreement
and Plan of Merger dated as of January 29, 1996 (the "Recapitalization
Agreement"), by and among the Company, Smitty's Acquisition, Inc., a Delaware
corporation and wholly-owned subsidiary of the Company ("Acquisition"),
Smitty's Supermarkets, Inc., a Delaware corporation ("Smitty's"), and The
Yucaipa Companies, a California general partnership ("Yucaipa"), the Company
will acquire Smitty's through the merger of Acquisition with and into Smitty's,
and in connection therewith the existing stockholders of Smitty's will receive
shares of Class B Common Stock, $.01 par value ("Class B Common Stock") of the
Company, and Yucaipa will be issued warrants (the "Warrants") to purchase
shares of Class C Common Stock, $.01 par value ("Class C Common Stock") of the
Company; and
WHEREAS, the Company has agreed to provide the registration
rights set forth in this Agreement and the execution and delivery of this
Agreement by the Company is a condition to the obligations of Smitty's and
Yucaipa under the Recapitalization Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein have the meanings ascribed to them in the
Recapitalization Agreement. In addition, the following capitalized terms shall
have the meanings ascribed to them below:
"Affiliate," as applied to any specified Person, shall mean
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person and, in the case
of a Person who is an individual, shall include (i) members of such specified
Person's immediate family (as defined in Instruction 2 of Item 404(a) of
Regulation S-K under the Securities Act) and (ii) trusts, the trustee and all
beneficiaries of which are such specified Person or members of such Person's
immediate family as determined in accordance with the foregoing clause (i).
For the purposes of this definition, "control", when used with respect to any
Person, means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Associated Holder" means any Holder who received Company
Common Stock pursuant to the Recapitalization Agreement upon the conversion of
such Holder's shares of Class B Common Stock, $.01 par value, of Smitty's in
the Merger.
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"Business Day" means any day that is not a Saturday, Sunday or
a day on which banking institutions in New York, New York or Los Angeles,
California are not required to be open.
"Company Common Stock" means the Class B Common Stock and the
Class C Common Stock.
"Deferral Period" is defined in Section 2.1.
"Demand Notice" is defined in Section 2.1.
"Demand Registration" is defined in Section 2.1.
"Demanding Holder" means any Holder initiating a registration
request in compliance with Section 2.1(a); provided that any action required or
permitted to be taken under this Agreement by any Demanding Holders shall be
taken by action of the holders of a majority of the Registrable Securities held
by such Demanding Holders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holders" means the holders of Company Common Stock and of the
Warrants who have executed this Agreement, and the transferees of each of them.
"Person" means an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Piggyback Registration" is defined in Section 2.2.
"Piggyback Holder" is defined in Section 2.2.
"Prospectus" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"Public Distribution" shall mean any bona fide underwritten
public distribution of Stock pursuant to an effective registration statement
under the Securities Act or any other applicable law, or any bona fide public
sale in an open market transaction under Rule 144 of the Securities Act (or any
successor rule) if such sale is in compliance with the requirements of
paragraphs (c), (d), (e), (f) and (g) of such Rule (notwithstanding the
provisions of paragraph (k) of such Rule).
"Public Offering" shall mean any bona fide underwritten public
distribution of Stock pursuant to an effective registration statement under the
Securities Act or any other applicable law.
"Registrable Securities" means each share of Stock held by the
Holders, or acquired by the Holders after the date hereof, until (i) it has
been effectively registered under the Securities Act and disposed of by such
Holders pursuant to an effective registration statement, or (ii) it is sold by
such Holders pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act. "Registrable Securities" shall include all shares of
Company Common Stock issued or issuable upon exercise of the Warrants.
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"Registration Statement" means any registration statement of
the Company relating to a Demand Registration pursuant to Section 2.1, a
Piggyback Registration pursuant to Section 2.2, or a Shelf Registration
pursuant to Section 2.3, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
"Restricted Registration" means any public offering of
Registrable Securities pursuant to a Registration Statement in which the
aggregate number of shares proposed to be offered by the Xxxxx Group and the
Yucaipa Group is restricted by the managing underwriter(s) as contemplated by
Sections 2.1(e) and 2.2(b) hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Selling Holder" means a Holder who sells or proposes to sell
Registrable Securities pursuant to a Registration Statement under the
Securities Act.
"Shelf Registration" or "Shelf Registration Statement" is
defined in Section 2.3.
"Xxxxx Group" is defined in Section 2.1(a).
"Xxxxx Group Priority Amount" means up to an aggregate amount
of 850,000 shares of Company Common Stock which may be sold by the Xxxxx Group
pursuant to one or more Registration Statements.
"Stock" means the following securities: (i) the Company Common
Stock or (ii) any security or other instrument (a) received as a dividend on,
or other payment made to the holders of, the Company Common Stock (or any other
security or instrument referred to in this definition) or (b) issued in
connection with a split of the Company Common Stock (or any other security or
instrument referred to in this definition) or as a result of any exchange or
reclassification of the Company Common Stock (or any other security or
instrument referred to in this definition), reorganization, consolidation,
merger or recapitalization.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which Stock of the Company is sold to an underwriter for
re-offering to the public.
"Yucaipa Group" is defined in Section 2.1(a).
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 DEMAND REGISTRATIONS.
(a) Request for Registration. At any time and from time
to time on or after the Closing Date (as defined in the Recapitalization
Agreement), each of (i) the holders of a majority of the Registrable Securities
held by Yucaipa and its Affiliates, Associated Holders and transferees of any
of
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the foregoing, as a group (the "Yucaipa Group"), and (ii) the holders of a
majority of the Registrable Securities held by Xxxxxxx X. Xxxxx and his
Affiliates and transferees of any of the foregoing, as a group (the "Xxxxx
Group"), may make two written requests of the Company for registration with
the SEC, under and in accordance with the provisions of the Securities Act, of
all or part (but not less than 20% of Registrable Securities originally held by
the Holders requesting such Demand Registration) of their Registrable
Securities (a "Demand Registration") by giving written notice to the Company of
such demand (a "Demand Notice"), provided that the Company shall be required to
effect only one Demand Registration during any six-month period. Each such
Demand Notice will specify the number of Registrable Securities proposed to be
sold pursuant to such Demand Registration and will also specify the intended
method of disposition thereof.
Promptly after receipt of any Demand Notice, but in no event
later than 60 days after receipt of such Demand Notice, the Company shall file
a Registration Statement with the SEC with respect to the Registrable
Securities included in the Demand Notice and shall use its best efforts to have
such Registration Statement declared effective as promptly as practicable;
provided, however, that the Company may postpone the filing of such
Registration Statement for a period of up to 90 days (the "Deferral Period") if
the Board of Directors reasonable determines that (i) such a filing would
adversely affect any proposed financing, acquisition, divestiture or other
material transaction by the Company or (ii) such a filing would otherwise
represent an undue hardship for the Company. The Company shall not be entitled
to request more than one such deferral with respect to any group of Holders
requesting a Demand Registration within any 365-day period. If the Company
does elect to defer any such Demand Registration, the Holders requesting such
Demand Registration may, at their election by written notice to the Company,
(i) confirm their request to proceed with such Demand Registration upon the
expiration of the Deferral Period or (ii) withdraw their request for such
Demand Registration in which case no such request for a Demand Registration
shall be deemed to have occurred for purposes of this Agreement.
The Company shall give written notice of any Demand Notice by
any Holder, which request complies with this Section 2.1(a), within 5 days
after the receipt thereof, to each Holder who did not initially join in such
request. Within 10 days after receipt of such notice, any such Holder may
request in writing that its Registrable Securities be included in such
registration, and the Company shall include in the Demand Registration the
Registrable Securities of each such Holder requested to be so included, subject
to the provisions of Section 2.1(e). Each such request shall specify the
number of shares of Registrable Securities proposed to be sold and the intended
method of disposition thereof.
(b) Effective Registration. Except as provided in
subsection (c) below, a registration will not be deemed to have been effected
as a Demand Registration unless it has been declared effective by the SEC;
provided that if, after it has become effective, the offering of Registrable
Securities pursuant to such registration is or becomes the subject of any stop
order, injunction or other order or requirement of the SEC or any other
governmental or administrative agency, or if any court prevents or otherwise
limits the sale of Registrable Securities pursuant to the registration (for any
reason other than the acts or omissions of the Holders), such registration will
be deemed not to have been effected. If (i) a registration requested pursuant
to this Section 2.1 is deemed not to have been effected in accordance with the
provisions of the preceding sentence or (ii) the registration requested
pursuant to this Section 2.1 does not remain continuously effective for a
period of at least 90 days beyond the effective date thereof or until the
consummation of the distribution by the Holders of the Registrable Securities
included in such registration statement (the "Demand Registration Statement"),
then such Demand Registration Statement shall not count as a Demand
Registration that may be requested by the Demanding Holder(s) in question and
the Company shall continue to be obligated to effect a registration pursuant to
this Section 2.1.
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(c) Withdrawal. The Demanding Holders may withdraw all
or any part of the Registrable Securities from a Demand Registration at any
time (whether before or after the filing or effective date of the Demand
Registration Statement), and if all such Registrable Securities are withdrawn,
to withdraw the demand related thereto. If at any time a registration
statement is filed pursuant to a Demand Registration, and subsequently a
sufficient number of Registrable Securities are withdrawn from the Demand
Registration so that such Demand Registration Statement does not cover at least
the required amounts specified by Section 2.1(a), and an additional number of
Registrable Securities is not so included, the Company may (or shall, if
requested by the Demanding Holders) withdraw such Demand Registration
Statement; provided that such withdrawn registration statement will count as a
Demand Registration unless the Demanding Holders elect to bear the expenses
associated with such withdrawn registration statement. If the Demanding
Holders elect to bear such expenses, such expenses shall be borne by the
Demanding Holder(s) whose withdrawal of Registrable Securities resulted in such
Demand Registration Statement not covering the specified required amounts.
(d) Selection of Underwriter. If the Demanding Holders
so elect, the offering of Registrable Securities pursuant to a Demand
Registration shall be in the form of an Underwritten Offering. The Demanding
Holders shall select one or more nationally recognized firms of investment
bankers to act as the managing Underwriter or Underwriters in connection with
such offering and shall select any additional investment bankers and managers
to be used in connection with such offering; provided that such investment
bankers and managers must be reasonably satisfactory to the Company. The
Company shall (together with all Holders of Registrable Securities proposing to
distribute such Registrable Securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting in the manner set forth above.
(e) Priority on Demand Registrations. If, in any Demand
Registration involving an Underwritten Offering the managing underwriter or
underwriters thereof advise the Demanding Holders or the Company in writing
that in its or their reasonable opinion the number of Registrable Securities
proposed to be sold in such Demand Registration exceeds the number that can be
sold in such offering or will adversely affect the success of such offering
(including, without limitation, an impact on the selling price or the number of
Registrable Securities that any participant may sell), the Company shall
include in such registration only the number of Registrable Securities, if any,
which in the opinion of such underwriter or underwriters can be sold without
having an adverse effect on the success of the offering and in accordance with
the following priority: (i) first, Registrable Securities held by Demanding
Holders in the group initially requesting such registration, allocated pro rata
among such group (based upon the number of Registrable Securities requested to
be included in such Demand Registration) and (ii) second, pro rata (based upon
the number of Registrable Securities requested to be included in such
registration by such Holders) among the other Holders of Registrable Securities
who have requested to include Registrable Securities in such registration. If
all Registrable Securities requested to be sold in the Underwritten Offering
are included therein, the Company may include other shares of Stock in such
offering in accordance with the following priority, but not to exceed the
number recommended by the managing underwriter or underwriters: (x) first, pro
rata among any other stockholders of the Company having piggyback or other
similar registration rights and (y) second, shares of Stock proposed to be sold
by or for the account of the Company. Notwithstanding the foregoing, if prior
to the filing of any Demand Registration Statement, the Company has received
Demand Notices from both the Xxxxx Group and the Yucaipa Group, then the Xxxxx
Group shall have priority until such time as the Xxxxx Group Priority Amount of
Registrable Securities (including all Registrable Securities sold by the Xxxxx
Group under any prior Restricted Registration after the date hereof) has been
included and thereafter the Xxxxx Group and the Yucaipa Group shall be
permitted to include their Registrable Securities in any such Demand
Registration on an equal basis (i.e. each group will be entitled to 50% of the
remaining share
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allocation, or such greater percentage as may be available if the other group
elects not to fill its entire 50% allocation).
SECTION 2.2 PIGGYBACK REGISTRATIONS.
(a) Right to Participate in Registration. If at any time
the Company proposes to file a registration statement under the Securities Act
with respect to an offering by the Company for its own account or for the
account of any holders of any class of common equity securities (other than (i)
a registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the SEC) or (ii) a registration statement filed in connection with a
Demand Registration or a Shelf Registration or (iii) a registration statement
filed in connection with an offering of securities solely to the Company's
existing securityholders), then the Company shall give written notice of such
proposed filing to the Holders as soon as practicable (but in no event less
than 20 days before the anticipated filing date), and such notice shall offer
such Holder the opportunity to register such number of shares of Registrable
Securities as each such Holder may request, which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof (or, if the offering is a proposed
Underwritten Offering, that such Holder elects to have the number of
Registrable Securities so specified included in such Underwritten Offering) (a
"Piggyback Registration").
The Company shall use its best efforts to cause the managing
Underwriter or Underwriters of a proposed Underwritten Offering to permit the
Registrable Securities requested by the Holders thereof to be included in a
Piggyback Registration (the "Piggyback Holders") to be included on the same
terms and conditions as any similar securities of the Company or any other
securityholder included therein and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method of
distribution thereof.
No registration effected under this Section 2.2 and no failure
to effect a registration under this Section 2.2(a), shall relieve the Company
of its obligations pursuant to Section 2.1, and no failure to effect a
registration under this Section 2.2(a) and complete the sale of shares in
connection therewith shall relieve the Company of any other obligation under
this Agreement (including, without limitation, the Company's obligations under
Sections 3.2 and 4.1).
(b) Priority on Piggyback Registrations. Unless the
registration statement is being filed pursuant to a Demand Registration (in
which case the priority of piggyback rights shall be as provided in Section
2.1(e) above), if the managing underwriter or underwriters advise the Company
in writing that in its or their reasonable opinion the number of equity
securities of the Company proposed to be sold in such registration (including
Registrable Securities to be included pursuant to subsection (a) above) will
adversely affect the success of such offering (including, without limitation,
an impact on the selling price or the number of equity securities of the
Company that any participant may sell), the Company shall include in such
registration the number of equity securities of the Company, if any, which in
the opinion of such underwriter or underwriters can be sold without having an
adverse effect on the offering and in accordance with the following priority:
(i) first, the securities the Company proposes to sell for its own account,
(ii) second, any Registrable Securities proposed to be sold by the Xxxxx Group
until such time as the Xxxxx Group Priority Amount of Registrable Securities
(including all Registrable Securities sold by the Xxxxx Group under any prior
Restricted Registration after the date hereof) have been included, (iii) third,
any other Registrable Securities of the Xxxxx Group and any Registrable
Securities of the Yucaipa Group, on an equal basis (as specified in Section
2.1(e) above), and (iv) fourth, pro rata based on the number of Registrable
Securities that each Holder or other Person having similar rights shall have
requested to be included therein.
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(c) Withdrawal. The Piggyback Holders may withdraw all
or any part of the Registrable Securities from a Piggyback Registration at any
time (before but not after the effective date of such registration statement),
by delivering written notice of such withdrawal request to the Company, unless
such Piggyback Registration is underwritten, in which case Registrable
Securities may not be withdrawn after the effective date of the Registration
Statement.
(d) Termination of Registration by the Company. If the
Company shall determine for any reason (x) not to register or (y) to delay a
registration which includes Registrable Securities pursuant to this Section
2.2, the Company may, at its election, give written notice of such
determination to the Holders of the Registrable Securities and, thereupon (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses (as
defined below) in connection therewith), without prejudice, however, to the
rights, if any, of any Holder or Holders of Registrable Securities to request
that such registration be effected as a Demand Registration under Section 2.1,
and (ii) in the case of a delay in registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other shares.
SECTION 2.3 SHELF REGISTRATION.
(a) Filing and Effectiveness. Upon the request of the
Demanding Holders in the Yucaipa Group at any time prior to the second
anniversary of the Closing Date, the Company shall cause to be filed with the
SEC as promptly as practicable after such request, but in no event later than
60 days thereafter, a shelf registration statement pursuant to Rule 415 under
the Securities Act (a "Shelf Registration" or a "Shelf Registration
Statement"), which Shelf Registration Statement shall provide for resales of
all Registrable Securities held by members of the Yucaipa Group who shall have
provided the information required pursuant to Section 3.1(b). The Company
shall use its best efforts to have such Shelf Registration declared effective
and to keep such Shelf Registration Statement continuously effective,
supplemented and amended to the extent necessary to ensure that it is available
for resales of Registrable Securities by such Holders, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the SEC as announced from time to time, for
a period of at least 120 days following the date on which such Shelf
Registration Statement becomes effective under the Securities Act; provided,
however, that if the Registrable Securities received by the Yucaipa Group are
"restricted securities" within the meaning of Rule 144 under the Securities
Act, any Shelf Registration Statement shall be kept continuously effective
until such Registrable Securities are no longer subject to the two-year holding
period imposed under Rule 144(c) (but in no event shall such Shelf Registration
Statement be required to be kept continuously effective after the second
anniversary of the Closing Date).
(b) Effective Registration. A registration will not be
deemed to have been effected as a Shelf Registration unless it has been
declared effective by the SEC and the Company has complied in all material
respects with its obligations under this Agreement with respect thereto;
provided that if, after it has become effective, the offering of Registrable
Securities pursuant to such registration is or becomes the subject of any stop
order, injunction or other order or requirement of the SEC or any other
governmental or administrative agency, or if any court prevents or otherwise
limits the sale of Registrable Securities pursuant to the registration (for any
reason other than the acts or omissions of the Holders), such registration will
be deemed not to have been effected. If (i) the Shelf Registration is deemed
not to have been effected in accordance with the provisions of the preceding
sentence or (ii) the Shelf Registration does not remain continuously effective
for the period described in subsection (a) above, then such Shelf Registration
Statement shall not count as a Shelf Registration and the Company shall
continue to be obligated to effect a registration pursuant to this Section 2.3.
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ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.1 REGISTRATION PROCEDURES.
(a) General Provisions. In connection with any
Registration Statement and any related Prospectus required by this Agreement to
permit the sale or resale of Registrable Securities, the Company shall:
(1) prepare and file with the SEC a registration
statement with respect to such Registrable Securities within the time
periods specified herein, make all required filings with the NASD and
use its best efforts to cause such registration statement to become
effective as promptly as practicable (subject to the Company's right
to withdraw the registration statement under the circumstances
described in Sections 2.1(c) or 2.2(d));
(2) promptly prepare and file with the SEC such
amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement effective for
the applicable period set forth in Sections 2.1, 2.2 or 2.3, as
applicable, or such shorter period as will terminate when all
Registrable Securities covered by such Registration Statement have
been sold; cause the Prospectus to be supplemented by a required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the
applicable provision of Rules 424 and 430A under the Securities Act in
a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(3) use its best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in Sections
2.1, 2.2 or 2.3, as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resale of Registrable
Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use its
best efforts to cause such amendment to declared effective and such
Registration Statement and related Prospectus to become usable for
their intended purposes(s) as soon as practicable thereafter;
(4) provide (A) the Holders of Registrable
Securities participating in the registration, (B) the underwriters
(which term, for purposes of this Agreement, shall include a Person
deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, of the Registrable Securities to be
registered, (C) the sale or placement agent therefor, if any, (D)
counsel for such underwriters or agent, and (E) counsel for the
Holders thereof, as selected by Holders of a majority of the
Registrable Securities covered by such registration statement, the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the SEC, and
each amendment or supplement thereto, and for a reasonable period
prior to the filing of such registration statement, and throughout the
period specified in Section 3.4(b) hereof, make available for
inspection by the parties referred to in (A) through (E) above such
financial and other information and books and records of the
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Company, provide access to properties of the Company and cause the
officers, directors, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries as
shall be reasonably necessary to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act;
(5) advise the underwriters, if any, and Selling
Holders promptly and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
SEC for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of the
qualification of the Registrable Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the SEC shall issue
any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Registrable Securities under state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time;
(6) furnish to each Selling Holder named in any
Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, such number of copies of any
Registration Statement or Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after
the initial filing of such Registration Statement and all exhibits
filed therewith), reasonably requested by such Person;
(7) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include
in any Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such
selling Holders and such underwriter(s), if any, may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Registrable
Securities, information with respect to the principal amount of
Registrable Securities being sold to such underwriter(s), the purchase
price being paid therefor and any other terms of the offering of the
Registrable Securities to be sold in such offering, and make all
required filing of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment;
(8) deliver to each Selling Holder and each of
the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the
Company hereby consents to the use of the Prospectus and any amendment
or supplement thereto by each of the Selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale
of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
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(9) in connection with any Underwritten Offering
pursuant to a Demand Registration, enter into an underwriting
agreement with one or more underwriters designated in accordance with
this Agreement, such agreement to be of the form, scope and substance
as is customary in underwritten offerings, and take all such other
actions as are reasonably requested by the managing underwriter(s) in
order to expedite or facilitate the disposition of such Registrable
Securities and in such connection: (i) make such representations and
warranties to the underwriters in form, scope and substance as are
customarily made by issuers to underwriters in underwritten offerings
with respect to the business of the Company; (ii) obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the
managing underwriter(s)) addressed to the managing underwriter(s)
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by the underwriters; (iii) obtain "comfort" letters and
updates thereof from the Company's independent certified public
accountants addressed to the underwriters, such "comfort" letters to
be in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with underwritten
offerings; (iv) deliver such documents and certificates as may be
reasonably requested by the managing underwriter(s) to evidence
compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting or similar
agreement.
(10) prior to any public offering of Registrable
Securities, cooperate with the Selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Registrable Securities under the securities
or Blue Sky laws of such jurisdictions as the Selling Holders or
underwriter(s), if any, may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions or the Registrable Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not
be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation, except as is required
as a result of the Registration Statement, in any jurisdiction where
it is not now so subject;
(11) in connection with any sale of Registrable
Securities that will result in such securities no longer being
Registrable Securities, cooperate with the Selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and to register such
Registrable Securities in such denominations and such names as the
Selling Holders or the underwriter(s), if any, may request at least
two Business Days prior to such sale of Registrable Securities;
(12) if requested by the Selling Holders, provide
a CUSIP number for all Registrable Securities not later than the
effective date of the Registration Statement covering such Registrable
Securities and provide the Company's transfer agent(s) and
registrar(s) for the Registrable Securities with printed certificates
for the Registrable Securities;
(13) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use their best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary
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to enable the Selling Holders or underwriters, if any, to consummate
the disposition of such Registrable Securities;
(14) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
under the Securities Act (which need not be audited) covering a period
of at least twelve month periods, but not more than eighteen months,
beginning with the first month of the Company's first quarter
commencing after the effective date of the Registration Statement,
which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act; and
(15) cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange on
which securities of the same class issued by the Company are then
listed if requested by the Selling Holders holding a majority of the
Registered Securities or the managing underwriter(s), if any.
(b) Provision by Holders of Certain Information. No Holder of
Registrable Securities may include any of its Registrable Securities in any
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after receipt of a request
therefor, such information as the Company may reasonably request specified in
item 507 of Regulation S-K under the Securities Act for use in connection with
any Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
SECTION 3.2 REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Section 3.2 will be paid by the Company, regardless of
whether any registration statement required hereunder becomes effective,
including, without limitation:
(1) all registration and filing fees;
(2) fees and expenses of compliance with securities or
blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters or selling Holders in
connection with blue sky qualifications of the Registrable Securities
and determination of their eligibility for investment under the laws
of such jurisdictions as the managing underwriters or Holders of
Registrable Securities being sold may designate);
(3) printing (including, without limitation, expenses of
printing or engraving certificates for the Registrable Securities in a
form eligible for trading on the New York Stock Exchange or for
deposit with the Depository Trust Company and of printing
prospectuses), messenger, telephone and delivery expenses;
(4) reasonable fees and disbursements of counsel for the
Company, for the underwriters and for the Selling Holders (subject to
the provisions of Section 3.2(c) hereof);
(5) reasonable fees and disbursements of all independent
certified public accountants of the Company (including, without
limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance); and
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(6) reasonable fees and disbursements of underwriters
(excluding discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals
relating to the distribution of the Registrable Securities or legal
expenses of any Person other than the Company, the underwriters or the
Selling Holders);
(7) fees and expenses of other Persons retained by the
Company; and
(8) fees and expenses associated with any NASD filing
required to be made in connection with the registration of the
Registrable Securities, including, if applicable, the reasonable fees
and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained in accordance with the rules
and regulations of the NASD (all such expenses being herein called
"Registration Expenses").
(b) The Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities to be registered on NASDAQ or on each national
securities exchange on which similar securities issued by the Company are then
listed, rating agency fees and the fees and expenses of any Person, including
special experts, retained by the Company.
(c) In connection with each Demand Registration or Piggyback
Registration required hereunder, the Company will reimburse the Holders of
Registrable Securities being registered pursuant to a registration statement
required hereunder for the reasonable fees and disbursements of not more than
one counsel chosen by the holders of a majority in number of such Registrable
Securities.
SECTION 3.3 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No
Holder may participate in any Underwritten Registration hereunder unless such
Holder (i) agrees to sell its Registrable Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, underwriting agreements, hold-back
agreements letters and other documents customarily required under the terms of
such underwriting arrangements. Notwithstanding the foregoing, (x) no Selling
Holder shall be required to make any representations or warranties except those
which relate solely to such Holder and its intended method of distribution, and
(y) the liability of each such Holder to any underwriter under such
underwriting agreement will be limited to liability arising from misstatements
or omissions regarding such Holder and its intended method of distribution and
any such liability shall not exceed an amount equal to the amount of net
proceeds such Holder derives from such registration; provided, however, that in
an offering by the Company in which any Holder requests to be included in a
Piggyback Registration, the Company shall use its best efforts to arrange the
terms of the offering such that the provisions set forth in clauses (x) and (y)
of this Section 3.3 are true. Nothing in this Section 3.3 shall be construed
to create any additional rights regarding the registration of Registrable
Securities in any Person otherwise than as set forth herein.
SECTION 3.4 HOLD-BACK AGREEMENTS.
(a) Restrictions on Public Distribution by Holder of
Registrable Securities. Upon the written request of the managing underwriter
or underwriters of a Public Offering, each Holder of Registrable Securities
shall not effect any Public Distribution of such securities, or any securities
convertible into or exchangeable or exercisable for such securities, including
a sale pursuant to Rule 144 under the Securities Act (except as part of such
Public Offering), during the 14-day period prior to, and
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during the 90-day period following, the offering date for each Public Offering
made pursuant to such registration statement (as identified by such underwriter
or underwriters or the Company in good faith). The foregoing provisions shall
not apply to any Holder that is prevented by applicable statute or regulation
from entering into any such agreement; provided, however, that any such Holder
shall undertake not to effect any Public Distribution of the class of
securities covered by such registration statement (except as part of such
Underwritten Offering) during such period unless it has provided 60 days' prior
written notice of such Public Distribution to the managing underwriter.
(b) Restrictions on Public Distribution by the Company
and Others. The Company agrees and it shall use its best efforts to cause its
Affiliates (other than Persons who are Holders hereunder) to agree: (1) not to
effect any Public Distribution of any securities being registered in accordance
with Article II hereof, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14-day period prior to, and during
the 90-day period following, the offering date for each Public Offering made
pursuant to a registration statement filed under Article II hereof, if
requested in writing by the managing underwriters (except as part of such
Public Offering or pursuant to registrations in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend reinvestment plans
or stock options or other employee benefit plans); and (2) to use its best
efforts to cause each Holder of its privately placed Registrable Securities
that are issued by the Company at any time on or after the date of this
Agreement to agree not to effect any Public Distribution, including a sale
pursuant to Rule 144 under the Securities Act, of any Registrable Securities
during the period set forth in clause (1) above (except as part of such Public
Offering, if and to the extent permitted).
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify and hold harmless each Selling Holder, each person, if any, who
controls such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) (hereinafter referred to as a "controlling
person"), the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (each an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder) directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders expressly for use
therein.
SECTION 4.2 INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
Each Selling Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and its directors, officers and any person controlling
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company and its respective officers, directors, partners,
employees, representatives and agents of each such person, to the same extent
as the foregoing indemnity from the Company to each
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of the Indemnified Holders, but only with respect to losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to the Company) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (or any amendment or supplement
thereto), or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement
or omission is contained in any information relating to such Holder furnished
in writing by such Holder expressly for use in any Registration Statement or
Prospectus. In case any action or proceeding shall be brought against the
Company or its directors or officers or any such controlling person in respect
of which indemnity may be sought against a Holder of Registrable Securities,
such Holder shall have the rights and duties given the Company, and the Company
or its directors or officers or such controlling person shall have the rights
and duties given to each Holder by the preceding paragraph. Each Selling
Holder also agrees to indemnify and hold harmless each other Selling Holder or
underwriters participating in the distribution on substantially the same basis
as that of the indemnification of the Company provided in this section 4.2. In
no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the proceeds received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Registration Statement or Prospectus.
SECTION 4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (an "Indemnified Party") will (i)
promptly give notice of any claim, action or proceeding (including any
governmental or regulatory investigation or proceeding) or the commencement of
any such action or proceeding to the Person against whom such indemnity may be
sought (an "Indemnifying Party"); provided that the failure to give such notice
shall not relieve the Indemnifying Party of its obligations pursuant to this
Agreement except to the extent that such Indemnifying Party has been prejudiced
in any material respect by such failure, and (ii) permit the Indemnifying Party
to assume the defense of such claim with counsel reasonably satisfactory to
such Indemnified Party; provided that the Indemnified Party shall have the
right to employ separate counsel and participate in the defense of such claim,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (a) the Indemnifying Party has agreed to pay for such
fees and expenses, or (b) the Indemnifying Party shall have failed to assume
the defense of such claim and employ counsel reasonably satisfactory to such
Indemnified Party or (c) in the reasonable judgment of such Indemnified Party,
based upon advice of its counsel, a conflict of interest may exist between such
Indemnified Party and the Indemnifying Party with respect to such claims. If
such defense is not assumed by the Indemnifying Party, the Indemnifying Party
will not be subject to any liability for any settlement of any such claim
effected without the Indemnifying Party's prior written consent, which consent
shall not be unreasonably withheld. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify and hold harmless any Indemnified
Party from and against any loss, claim damage, liability or expense by reason
of any settlement of any such claim or action. No Indemnifying Party shall,
without the prior written consent of each Indemnified Party, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Party is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Party from all liability arising out
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of such action, claim, litigation or proceeding. An Indemnifying Party who is
not entitled to, or elects not to, assume the defense of the claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such Indemnifying Party with respect to such claim, unless in
the reasonable judgement of any Indemnified Party a conflict of interest may
exist between such Indemnified Party and any other such Indemnified Parties
with respect to such Claim, in which event the Indemnifying Party shall be
obligated to pay the fees and expenses of such additional counsel or counsels.
SECTION 4.4 CONTRIBUTION. If the indemnification provided for in
this Article IV is unavailable to an Indemnified Party (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall have
a joint and severable obligation to contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party, on the one hand, and of the Indemnified Party, on
the other, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying
Party, on the one hand, and of the Indemnified Party, on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 4.1, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or expenses referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 4.4, none of
the Indemnified Holders shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the net proceeds received by such
Holder with respect to the Registrable Securities exceeds the greater of (A)
the amount paid by such Holder for its Registrable Securities and (B) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Holders' obligation to contribute pursuant to this Section 4.4 are several in
proportion to the respective number of Registrable Securities held by each of
the Holders hereunder and not joint.
For purposes of this Article IV, each controlling person of a
Holder shall have the same rights to contribution as such Holder, and each
officer, director, and person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act shall have the same rights to contribution as the Company, subject in each
case to the limitations set forth in the immediately preceding paragraph. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Article IV, notify such
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party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from who
contribution may be sought from any obligation it or they may have under this
Article IV or otherwise except to the extent that it has been prejudiced in any
material respect by such failure. No party shall be liable for contribution
with respect to any action or claim settled without its written consent;
provided, however, that such written consent was not unreasonably withheld.
SECTION 4.5 ADDITIONAL INDEMNITY. The indemnity, contribution
and expense reimbursement obligations under this Article IV shall be in
addition to any liability each Indemnifying Party may otherwise have; provided,
however, that any payment made by the Company which results in an Indemnified
Party receiving from any source(s) indemnification, contribution or
reimbursement for an amount in excess of the actual loss, liability or expense
incurred by such Indemnified Party, shall be refunded to the Company by the
Indemnified Party receiving such excess payment.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 RULE 144. The Company agrees it will file in a
timely manner all reports required to be filed by it pursuant to the Securities
Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder and will take such further action as any Holder of Registrable
Securities may reasonably request in order that such Holder may affect sales of
Registrable Securities without registration within the limitations of the
exemptions provided by Rule 144, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC. At any
reasonable time and upon the request of a Holder of Registrable Securities, the
Company will furnish such Holder with such information as may be necessary to
enable the Holder to effect sales of Registrable Securities pursuant to Rule
144 under the Securities Act and will deliver to such Holder a written
statement as to whether it has compiled with such information and requirements.
SECTION 5.2 SPECIFIC PERFORMANCE. Each Holder, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of liquidated or other damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at
law would be adequate.
SECTION 5.3 NO INCONSISTENT AGREEMENTS. The Company will not on
or after the date of this Agreement enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The Company
has not previously entered into any agreement granting any registration rights
with respect to its securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
SECTION 5.4 CHARTER AMENDMENTS AFFECTING THE COMPANY'S COMMON
STOCK. The Company will not amend its Certificate of Incorporation in any
respect that would materially and adversely affect the rights of the Holders
hereunder.
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SECTION 5.5 AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding shares of Registrable
Securities held by each of the Xxxxx Group and the Yucaipa Group, respectively.
SECTION 5.6 NOTICES. Unless otherwise provided herein, any
notice, request, instruction or other document to be given hereunder by any
party to the others shall be made in writing, by hand-delivery, telegraph,
telex, telecopier, registered first-class mail or air courier guaranteeing
overnight deliver as follows:
if to the Company, to:
Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
if to any Holder:
to the address specified below such Holder's name on
the signature pages hereto;
or to such other place and with such other copies as any party hereto may
designate as to itself by written notice to the others. All such notices and
communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied: and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery.
SECTION 5.7 SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of Registrable Securities or of the Warrants,
provided that the Company may not assign its rights or obligations under this
Agreement to any other person or entity without the written consent of a
majority of the outstanding shares of Registrable Securities held by each of the
Xxxxx Group and the Yucaipa Group, respectively.
SECTION 5.8 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 5.9 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit o otherwise affect the meaning
hereof.
SECTION 5.10 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to the choice of law provisions thereof.
SECTION 5.11 SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable,
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the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
SECTION 5.12 ENTIRE AGREEMENT. This Agreement is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
SECTION 5.13 PRONOUNS. Whenever the context may require,
any pronouns used herein shall be deemed also to include the corresponding
neuter, masculine or feminine forms.
SECTION 5.14 ATTORNEY'S FEES. In any action or proceeding
brought to enforce any provision of this Agreement, the successful party shall
be entitled to recover reasonable attorney's fees in addition to its costs and
expenses and any other available remedy.
SECTION 5.15 SECURITIES HELD BY THE COMPANY OR ITS
SUBSIDIARIES. Whenever the consent or approval of Holders of a specified
percentage or Registrable Securities is required hereunder, Registrable
Securities held by the Company or its Subsidiaries shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
SECTION 5.16 FURTHER ASSURANCES. Each party shall
cooperate and take such action as may be reasonably requested by another party
in order to carry out the provisions and purposes of this Agreement and the
transactions contemplated hereby.
SECTION 5.17 TERMINATION. Unless sooner terminated in
accordance with its terms or as otherwise herein provided, this Agreement shall
terminate upon the earlier to occur of (i) the mutual agreement by the parties
hereto, (ii) with respect to any Holder, such Holder ceasing to own any
Registrable Securities, (iii) the fifteenth anniversary of the Effective Date,
or (iv) with respect to the Yucaipa Group or the Xxxxx Group, the date on which
the aggregate number of shares of outstanding Registrable Securities held by
the Yucaipa Group or the Xxxxx Group, as applicable, is less than 20% of the
Registrable Shares originally held by the Yucaipa Group or the Xxxxx Group, as
applicable, following the consummation of the transactions contemplated by the
Recapitalization Agreement; provided, that the foregoing clause (iv) shall not
apply as to any member of the Yucaipa Group or the Xxxxx Group, as applicable,
if, as of such date, such member of the Yucaipa Group or the Xxxxx Group, as
applicable, is an "affiliate" of the Company within the meaning of the
Securities Act.
(signature page follows)
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IN WITNESS HEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
XXXXX'X FOOD & DRUG CENTERS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
XXXXXXX X. XXXXX
Address: 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
THE YUCAIPA COMPANIES
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
YUCAIPA SSV PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
S-1
20
YUCAIPA SMITTY'S PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
YUCAIPA SMITTY'S PARTNERS II, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
YUCAIPA ARIZONA PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
S-2
