EXECUTION COPY
RITE AID CORPORATION
$150,000,000 11 1/4% Senior Notes due 2008
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 27, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Fleet Securities, Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Rite Aid Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell, upon the terms set forth in a purchase agreement of
even date herewith (the "Purchase Agreement"), to the initial purchasers set
forth in the Purchase Agreement (the "Initial Purchasers"), $150,000,000
aggregate principal amount of its 11 1/4% Senior Notes due 2008 (the
"Securities") relating to the initial placement of the Securities (the "Initial
Placement"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, and as satisfaction of the conditions thereunder, the
Company agrees with you for your benefit and the benefit of the holders from
time to time of the Securities (including the Initial Purchasers) and the
Exchange Securities (as defined herein) (each a "Holder" and collectively, the
"Holders"), as follows:
1. Registered Exchange Offer. Unless the Registered Exchange
Offer shall not be permitted by applicable law or applicable interpretation of
the staff of the Securities and Exchange Commission (the "SEC" or "Commission"),
the Company shall (i) prepare and, not later than 90 days following the date of
the original issuance of the Securities (the date of such filing being referred
to herein as the "Filing Date"), file with the Commission a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act
with respect to a proposed offer to the Holders of the Securities (the
"Registered Exchange Offer") to issue and deliver to such Holders, in exchange
for the Securities a like aggregate principal amount of debt securities of the
Company (the "Exchange Securities") that are identical in all material respects
to the Securities, except for the transfer restrictions relating to the
Securities, (ii) use their best efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act no later than 180 days
after the Filing Date, (iii) as soon as practicable after the effectiveness of
the Exchange Offer Registration Statement, initiate the Registered Exchange
Offer as set forth in the following paragraph. The Exchange Securities will be
issued under the same indenture as the Securities (the "Indenture") between and
the Trustee or such other bank or trust company that is reasonably satisfactory
to the Initial Purchasers, as trustee (the "Trustee"), as the Securities, with
such modifications as may be appropriate to account for the registration of the
Exchange Securities under the Securities Act.
Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall commence the Registered Exchange Offer, it being
the objective of such Registered Exchange Offer to enable each Holder electing
to exchange Securities for Exchange Securities (assuming that such Holder (a) is
not an affiliate of the Company or an Exchanging Dealer (as defined herein) not
complying with the requirements of the next sentence, (b) is not holding
Securities that have, or that are reasonably likely to have, the status of an
unsold allotment in the Initial Placement, (c) acquires the Exchange Securities
in the ordinary course of such Holder's business and (d) has no arrangements or
understandings with any person to participate, and is not participating, in the
distribution of the Exchange Securities) and to trade such Exchange Securities
from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of
the several states of the United States. The Company, the Holders and each
Exchanging Dealer (as defined herein) acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
each Holder that is a broker-dealer electing to exchange Securities, acquired
for its own account as a result of market-making activities or other trading
activities, for Exchange Securities (an "Exchanging Dealer"), is required, in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer, to deliver a
prospectus containing substantially the information set forth (i) in Annex A
hereto on the cover of such prospectus,
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(ii) in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section of such prospectus and (iii) in Annex C
hereto in the "Plan of Distribution" section of such prospectus.
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder of Securities a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than
30 days and not more than 45 business days (or, in each case, longer, if
required by applicable law) after the date on which notice of the Registered
Exchange Offer is mailed to the Holders of Securities and the Purchasers;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(d) permit Holders to withdraw tendered Securities at any time
prior to the end of the Registered Exchange Offer, as set forth in the materials
originally mailed to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Securities
and Exchange Commission in order to consummate the
Registered Exchange Offer; and
(f) comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(a) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Registered
Exchange Offer;
(b) deliver to the Trustee for due cancelation
all Securities so accepted for exchange; and
(c) cause the Trustee for the Exchange Securities promptly to
authenticate and deliver to each Holder, Exchange Securities equal in principal
amount to the Securities of such Holder so accepted for exchange.
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The Company shall use its best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the earlier of 180 days from the close
of the Registered Exchange Offer and the date on which all Exchanging Dealers
have sold all Exchange Securities held by them and (ii) the Company shall make
such prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 90 days after the consummation of the Registered
Exchange Offer.
The Indenture shall provide that the Securities and the
Exchange Securities shall vote and consent together on all matters as to which
the Indenture provides for voting and consent as one class and that neither the
Securities nor the Exchange Securities will have the right to vote or consent as
a separate class on any matter.
Interest on each Exchange Security issued pursuant to the
Registered Exchange Offer will accrue from the last interest payment date on
which interest was paid on the Securities surrendered in exchange therefor or,
if no interest has been paid on the Securities, from the date of the closing of
the Exchange Offer.
Each Holder hereby acknowledges and agrees that any such
Holder using the Registered Exchange Offer to participate in a distribution of
the Exchange Securities (x) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission in Xxxxxx
Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any secondary resale transaction which
must be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Securities Act if the resales are of Exchange
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its
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affiliates. Accordingly, each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate and is not participating in the distribution of the Securities or
the Exchange Securities within the meaning of the Securities Act, (iii) such
Holder is not an affiliate of the Company or, if it is such an affiliate (as
defined in Section 10(e)), such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) it is not acting on behalf of any person who, to its knowledge, could not
truthfully make the foregoing representations and (v) it shall have made such
other representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or another
appropriate form under the Securities Act available or for the Exchange Offer
Registration Statement to be declared effective. To the extent permitted by law,
upon the written request of the Initial Purchasers, the Company shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Securities in the
Exchange Offer.
Notwithstanding any other provisions hereof, (i) any Exchange
Offer Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto shall comply in all material
respects with the Securities Act and the rules and regulations of the Commission
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto shall not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, shall not, as of the consummation of the Registered Exchange
Offer, include 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.
(d) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
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written request of such Initial Purchaser, the Company shall issue and deliver
to such Initial Purchaser or the person purchasing Exchange Securities
registered under a Shelf Registration Statement as contemplated by Section 2
hereof from such Initial Purchaser, in exchange for such Securities, a like
principal amount of Exchange Securities. The Company shall use its best efforts
to cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Securities as for Exchange Securities issued pursuant to the Registered
Exchange Offer.
If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Company shall issue and deliver to such Initial
Purchaser or the person purchasing Exchange Securities registered under a Shelf
Registration Statement as contemplated by Section 2 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of Exchange
Securities. The Company shall use its best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for such Exchange Securities as for
Exchange Securities issued pursuant to the Registered Exchange Offer.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) the Exchange Offer Registration Statement is not declared
effective within 180 days after the original issuance of the Securities or the
Registered Exchange Offer is not consummated within 210 days after the original
issuance of the Securities, or (iii) a Holder (including an Initial Purchaser)
of Securities notifies the Company following the completion of the Registered
Exchange Offer that the Securities held by such Holder are not eligible to be
exchanged for Exchange Securities in the Registered Exchange Offer, (iv) certain
Holders (other than the Initial Purchasers) of the Securities are prohibited by
law or the policy of the Commission from participating in the Registered
Exchange Offer or the Exchange Securities may not be freely transferable by such
Holders other than by reason of such Holder being an affiliate of the Company
(it being understood that the requirement that a participating Broker- Dealer
deliver the prospectus contained in the Exchange Offer Registration Statement in
connection with sales of Exchange Notes shall not result in such Exchange Notes
being not "freely transferable"), or (v) in the case of any Initial Purchaser
that participates in the Registered
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Exchange Offer or acquires Exchange Securities pursuant to Section 1(d) hereof,
such Initial Purchaser does not receive freely tradeable Exchange Securities in
exchange for Securities constituting any portion of an unsold allotment (it
being understood that (x) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by Item 507 or 508 of Regulation
S-K under the Securities Act in connection with sales of Exchange Securities
acquired in exchange for such Securities shall result in such Exchange
Securities being not "freely transferable"; and (y) the requirement that an
Exchanging Dealer deliver an Exchange Offer Prospectus in connection with sales
of Exchange Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
transferable"), then the following provisions shall apply:
(a) The Company shall promptly file (but in no event more than
30 days after so required or requested pursuant to this Section 2) with the
Commission, and thereafter shall use its reasonable best efforts to cause to be
declared effective, a shelf registration statement on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Securities (as defined below) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in such registration
statement (hereafter, a "Shelf Registration Statement" and, together with any
Exchange Offer Registration Statement, a "Registration Statement").
(b) The Company shall keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the Securities
Act, in order to permit the prospectus forming part thereof to be used by
Holders of Transfer Restricted Securities for a period ending on the earlier of
(i) two years from the effective date of the Shelf Registration Statement or
such shorter period that will terminate when all the Transfer Restricted
Securities covered by the Shelf Registration Statement have been sold pursuant
thereto, (ii) the date the Transfer Restricted Securities cease to be
outstanding, and (ii) the date on which the Securities become eligible for
resale without volume restrictions pursuant to Rule 144 under the Securities Act
(in any such case, such period being called the "Shelf Registration Period").
The Company shall be deemed not to have complied with this paragraph (b) if it
voluntarily takes any action that would result in Holders of Transfer Restricted
Securities covered thereby not being able to offer and sell such Transfer
Restricted Securities
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during that period, unless such action is required by applicable law.
Notwithstanding the foregoing, during any 365-day period, the
Company may suspend the effectiveness of the Exchange Offer Registration
Statement for up to 2 periods (each a "Suspension Period") of up to 45
consecutive days (except for the consecutive 45-day period immediately prior to
maturity of the Securities), but no more than an aggregate of 75 days during any
365-day period, if there is a possible acquisition or business combination or
other transaction, business development or event involving the Company that may
require disclosure in the Exchange Offer Registration Statement and the Company
determines in the exercise of its reasonable judgment that such disclosure is
not in the best interests of the Company and its stockholders or obtaining any
financial statements relating to an acquisition or business combination required
to be included in the Exchange Offer Registration Statement would be
impracticable. In such a case, the Company shall promptly notify any such
broker-dealers of the suspension of the Exchange Offer Registration Statement's
effectiveness, provided that such notice shall not require the Company to
disclose the possible acquisition or business combination or other transaction,
business development or event if the Company determines in good faith that such
acquisition or business combination or other transaction, business development
or event should remain confidential. Upon the abandonment, consummation or
termination of the possible acquisition or business combination or other
transaction, business development or event or the availability of the required
financial statements with respect to a possible acquisition or business
combination, the suspension of the use of the Exchange Offer Registration
Statement pursuant to this paragraph shall cease and the Company shall promptly
comply with the first paragraph of Section 6(b) hereof and notify such
broker-dealers that the use of the prospectus contained in the Exchange Offer
Registration Statement, as amended or supplemented, as applicable, may resume.
The Company shall provide sufficient copies of the latest version of such
prospectus to such broker-dealers, promptly upon written request, and in no
event later than one day after such request, at any time during such period..
(c) Notwithstanding any other provisions hereof, the Company
shall ensure that (i) any Shelf Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies in
all material respects with the Securities Act and the rules and regulations of
the Commission thereunder, (ii) any Shelf Registration Statement and any
amendment thereto (in either
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case, other than with respect to information included therein in reliance upon
or in conformity with written information furnished to the Company by or on
behalf of any Holder specifically for use therein (the "Holders' Information"))
does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any prospectus forming
part of any Shelf Registration Statement, and any supplement to such prospectus
(in either case, other than with respect to Holders' Information), does not
include 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.
3. Additional Interest. (a) If (i) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement, as the case may be,
is filed with the Commission on or prior to the date which is 90 days following
the date of the original issuance of the Securities, (ii) the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
is not declared effective within 180 days after the original issuance of the
Securities, (iii) if the Exchange Offer Registration Statement is declared
effective, the Registered Exchange Offer is not consummated on or prior to 210
days after the date of the original issuance of Securities, (iv) if the Company
is required to file the Shelf Registration Statement in accordance with Section
2, the Company does not so file the Shelf Registration Statement on or prior to
the 30th day after the Company's obligation to file such Shelf Registration
Statement arises, (v) the applicable Registration Statement is filed and
declared effective but shall thereafter cease to be effective (at any time that
the Company is obligated to maintain the effectiveness thereof) without being
again effective within 30 days or being succeeded within 30 days by an
additional Registration Statement filed and declared effective, provided that
such 30-day period shall toll during a Suspension Period, or (vi) the periods
referred to in the second paragraph of Section 2(b) exceed, in the aggregate, 75
days during any 365-day period (each such event referred to in clauses (i)
through (vi), a "Registration Default"), the Company shall be obligated to pay
additional interest ("Additional Interest") to each Holder of Transfer
Restricted Securities, during the period of one or more such Registration
Defaults, at a rate of 0.25% per annum on the applicable principal amount of
Transfer Restricted Securities held by such Holder for the first 90-day period
immediately following the occurrence of a Registration
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Default, and such rate will increase by an additional 0.25% with respect to each
subsequent 90-day period until all Registration Defaults have been cured,
provided that the maximum additional rate may in no event exceed 0.50% per
annum. Such obligation to pay Additional Interest shall survive until (i) the
applicable Registration Statement is filed, (ii) the Exchange Offer Registration
Statement is declared effective and the Registered Exchange Offer is consummated
with respect to all properly tendered Securities, (iii) the Shelf Registration
Statement is declared effective or (iv) the Shelf Registration Statement again
becomes effective (or is superseded by another effective Shelf Registration
Statement), as the case may be. Following the cure of all Registration Defaults,
the accrual of Additional Interest will cease.
As used herein, the term "Transfer Restricted Securities"
means (i) each Security until the date on which such Security has been exchanged
for a freely transferable Exchange Security in the Registered Exchange Offer,
(ii) each Security until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), the Company shall not be required
to pay Additional Interest to a Holder of Transfer Restricted Securities if such
Holder failed to comply with its obligations to make the representations set
forth in the second to last paragraph of Section 1 or failed to provide the
information required to be provided by it, if any, pursuant to Section 4(n).
(b) The Company shall notify the Trustee and the paying agent
under the Indenture immediately upon the happening of each and every
Registration Default. The Company shall pay the Additional Interest due on the
Transfer Restricted Securities by depositing with the paying agent (which may
not be the Company for these purposes), in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time, on the next applicable
interest payment date specified by the Indenture and the Securities, sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each applicable interest payment date specified by the
Indenture and the Securities to the record holder entitled to receive the
interest payment to be made on such date. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the date of the applicable
Registration Default.
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(c) The parties hereto agree that the Additional Interest
provided for in this Section 3 constitute a reasonable estimate of and are
intended to constitute the sole damages that will be suffered by Holders of
Transfer Restricted Securities by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to remain effective or (iii) the Exchange
Offer Registration Statement to be declared effective and the Registered
Exchange Offer to be consummated, in each case to the extent required by this
Agreement.
4. Registration Procedures. In connection with ny Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each of the
Representatives for the Initial Purchasers a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein and shall use its reasonable best efforts to reflect in each
such document, when so filed with the Commission, such comments as any Initial
Purchaser or any Holder may reasonably propose; (ii) include the information set
forth (A) in Annex A hereto on the cover of such prospectus, (B) in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section of such prospectus and (C) in Annex C hereto in the
"Plan of Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement, and include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and (iii) if requested by an Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K, as applicable, in
the prospectus forming a part of the Exchange Offer Registration Statement.
(b) The Company shall advise each of Representatives for the
Initial Purchasers, each Exchanging Dealer and the Holders (if applicable) and,
if requested by any such person, confirm such advice in writing (which advice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and
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when such Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included therein or
for additional information;
(iii) if known by the Company, of the issuance by the
Commission of any stop order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities or the Exchange
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(c) The Company shall make every reasonable effort to obtain
the withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement or qualifying the Securities therein
for sale in any jurisdiction.
(d) The Company shall furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf Registration
Statement, without charge, upon the written request of such Holder, at least one
conformed copy of such Shelf Registration Statement and any post- effective
amendment thereto, including all material incorporated therein by reference,
including financial statements and schedules and, if any such Holder so requests
in writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Company shall, during the Shelf Registration Period,
promptly deliver to each Holder of Transfer Restricted Securities included
within the coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included in
such Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use of
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such prospectus or any amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Securities in connection with the offer and sale
of the Transfer Restricted Securities covered by such prospectus or any
amendment or supplement thereto.
(f) The Company shall furnish to each Exchanging Dealer who so
requests in writing, without charge, at least one conformed copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if any Exchanging Dealer so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(g) The Company shall, during the Exchange Offer Registration
Period or the Shelf Registration Period, as applicable, promptly deliver to each
Initial Purchaser, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the Exchange
Offer Registration Statement or the Shelf Registration Statement and any
amendment or supplement thereto as such Initial Purchaser, Exchanging Dealer or
other persons may reasonably request; and the Company consents to the use of
such prospectus or any amendment or supplement thereto by any such Initial
Purchaser, Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement,
the Company shall use its reasonable best efforts to register or qualify, or
cooperate with the Holders of Securities or Exchange Securities included therein
and their respective counsel in connection with the registration or
qualification of, such Securities or Exchange Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Securities or Exchange Securities covered by such Registration Statement;
provided that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of Securities
or Exchange Securities to facilitate the timely preparation and delivery of
certificates representing
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Securities or Exchange Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing at least
one business day prior to sales of Securities or Exchange Securities pursuant to
such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Company is required to maintain an
effective Registration Statement, the Company shall promptly prepare and file
with the Commission a post-effective amendment to the Registration Statement or
an amendment or a supplement to the related prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Securities or Exchange Securities from a Holder, the prospectus will not include
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. In such circumstances,
the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 1 and the Shelf Registration Statement provided for in
Section 2(b) shall each be extended by the number of days from and including the
date of the giving of a notice of suspension pursuant to Section 4(b) to and
including the date when the Initial Purchasers, the Holders of the Securities
and any known Exchanging Dealer shall have received such amended or supplemented
Prospectus pursuant to this Section.
(k) Not later than the effective date of the applicable
Registration Statement, the Company shall obtain a CUSIP number for the
Securities and the Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the Securities or the Exchange
Securities as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company shall comply with all applicable rules and
regulations of the Commission and make generally available to the Company's
security holders as soon as reasonably practicable after the effective date of
the applicable Registration Statement an earning statement satisfying the
provisions of Section 11(a) of the Securities Act; provided that in no event
shall such earning statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the
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applicable Registration Statement, which statement shall cover such 12-month
period.
(m) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act as required by applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Company may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder
of Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (v), such Holder
will discontinue disposition of such Transfer Restricted Securities until such
Holder's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(j) or until advised in writing (the "Advice") by the
Company that the use of the applicable prospectus may be resumed. If the Company
shall give any notice under Section 4(b)(ii) through (v) during the period that
the Company is required to maintain an effective Registration Statement (the
"Effectiveness Period"), such Effectiveness Period shall be extended by the
number of days during such period from and including the date of the giving of
such notice to and including the date when each seller of Transfer Restricted
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemental or amended prospectus contemplated by Section 4(j)
(if an amended or supplemental prospectus is required) or (y) the Advice (if no
amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company
shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Securities or
Exchange Securities being sold or the managing underwriters, if any, shall
reasonably request in order to facilitate any disposition of Securities or
Exchange Securities pursuant to such Shelf Registration Statement.
15
(q) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the Holders
of, representatives and counsel to, a majority in aggregate principal
amount of the Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by such
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Shelf Registration Statement as is customary for similar due
diligence examinations; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of
the Initial Purchasers by Xxxxxxx Xxxxx Xxxxxx Inc. in connection with
any underwritten Shelf Registration Statement to which it is a party,
and on behalf of the Holders by one counsel designated by the Holders
of a majority of the Securities; provided, further, that any
information provided pursuant to Section 4(q)(i) and (ii) that is
designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by
the Holders or any such underwriter, attorney, accountant or agent, and
shall be used only in connection with such Shelf Registration and the
transactions contemplated thereby unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
16
(iv) obtain opinions of its counsel and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters;
(v) if requested in writing by Holders of a majority in
aggregate principal amount of the Securities to be registered
thereunder or by any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, to use its reasonable
best efforts to obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company, addressed
to each selling Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities being
sold and the underwriters, if any, and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company.
The actions set forth in clauses (iii), (iv) and (v) of this subsection shall be
performed at (A) the effectiveness of such Registration Statement and, if
applicable, each post-effective amendment thereto; and (B) each closing under
any underwriting or similar agreement as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other person as
directed by the Company) in exchange for the Exchange Securities, the Company
shall xxxx, or cause to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the Exchange Securities. In no
event shall the Securities be marked as paid or otherwise satisfied.
(s) The Company will use its reasonable best efforts to cause
the Securities covered by a Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by
17
Holders of a majority in aggregate principal amount of the Securities and the
Exchange Securities being sold with respect to the related Registration
Statement or by any underwriters.
(t) In the event that any broker-dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
assist such broker-dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof; and
(iii) providing such information to such Broker- Dealer as may
be required in order for such Broker- Dealer to comply with the
requirements of such Rules.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 1,
2, 3 and 4 and, in the case of a Shelf Registration Statement, the Company shall
reimburse the Holders for the reasonable fees and disbursements of one firm of
attorneys (in addition to any local counsel) chosen by the Holders of a majority
in aggregate principal amount of the Securities and the Exchange Securities to
be sold pursuant to each Registration Statement acting for the Holders and the
Initial Purchasers in connection therewith and, in the case of any Exchange
Offer Registration Statement, will reimburse the Initial Purchasers for the
reasonable fees and disbursements of counsel acting in connection therewith.
18
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Exchanging Dealer, the Company shall
indemnify and hold harmless each Holder (including, without limitation, each
Initial Purchaser, any such Exchanging Dealer), their affiliates, their
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act (collectively referred to for purposes of this Section 6
and Section 7 as a Holder from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, without
limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Securities or Exchange Securities), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law 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 in any such Registration Statement or any prospectus
forming a part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and shall
reimburse each indemnified party promptly upon demand for any legal or other
expenses reasonably incurred by that indemnified party in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company
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, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Holders' Information; and
provided further, however, that with respect to any such untrue statement in or
omission from any related preliminary prospectus, the indemnity agreement
contained in this Section 6(a) shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage, liability or action
received Securities or Exchange Securities to the extent that such loss, claim,
damage, liability or action of or with respect to such Holder results from the
fact that both (A) a copy of the final prospectus was not sent or given to such
person at or prior
19
to the written confirmation of the sale of such Securities or Exchange
Securities to such person and (B) the untrue statement in or omission from the
related preliminary prospectus was corrected in the final prospectus unless, in
either case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each
Holder severally and not jointly shall indemnify and hold harmless the Company,
its affiliates, its respective officers, directors, employees, representatives
and agents, and each person, if any, who controls the Company, within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 6(b) and Section 7 as the Company), from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law 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 in
any such Registration Statement or any prospectus forming a part thereof or in
any amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, 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 any Holders' Information furnished
to the Company by such Holder, and shall reimburse the Company, for any legal or
other expenses reasonably incurred by the Company, in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that no such Holder
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Securities or Exchange
Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 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 pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the
20
commencement of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided further, however, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 6. 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 6 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than the
reasonable costs of investigation; provided, however, that an indemnified party
shall have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel reasonably satisfactory to the indemnified party to
assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of
21
the indemnity agreements contained in Sections 6(a) and 6(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall 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 its written
consent or if there be a final judgment for 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. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability or claims
that were raised or could have been raised by such plaintiff in such proceeding.
7. Contribution. If the indemnification provided for in
Section 6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b), 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 indemnified party, on the one
hand, and the indemnifying party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such loss, claim, damage or
liability, or action in respect thereof, 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 Company on the one hand and such
Holder, 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. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the Initial Placement
(before deducting expenses) received by the Company, and benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions in each case set forth on the cover of the Final
Memorandum. Benefits received by any other Holders shall be deemed to be equal
to the value of receiving Securities or Exchange Securities, as applicable,
registered under the Securities Act. The
22
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Company or information
supplied by the Company on the one hand or to any Holders' Information supplied
by such Holder on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 7 were to be determined
by pro rata allocation 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 7
shall be deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, an indemnifying party that is
a Holder of Securities or Exchange Securities shall not be required to
contribute any amount in excess of the amount by which (A) with respect to any
Holder, the total price at which the Securities or Exchange Securities sold by
such indemnifying party to any purchaser, (B) with respect to a Purchaser, the
total consideration received by such Purchaser pursuant to the Purchase
Agreement, as the case may be, exceeds the amount of any damages which such
indemnifying party 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.
8. Rules 144 and 144A. So long as Transfer Restricted
Securities remain outstanding, the Company shall use its reasonable best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the written request of any Holder of
Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of such Holder's securities pursuant to Rules
144 and 144A. So long as Transfer Restricted Securities remain outstanding, the
Company covenants that after June 27, 2001 it will take such further action as
any Holder of Transfer Restricted Securities may reasonably request, all to the
extent required from time to
23
time to enable such Holder to sell Transfer Restricted Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). So long as Transfer Restricted Securities remain
outstanding, upon the written request of any Holder of Transfer Restricted
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions
of this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities; provided that,
with respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose
24
Securities or Exchange Securities, as the case may be, are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities being sold by
such Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or any courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture;
(2) if to you, initially at the respective addresses set forth
in the Purchase Agreement; and
(3) if to the Company, initially at the address of the Company
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one business
day after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) 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 the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Securities and the Exchange
Securities. The Company hereby agrees to extend the benefits of this Agreement
to any Holder of Securities and the Exchange Securities, and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
(d) Counterparts. This Agreement may be executed in any number
of counterparts (which may be delivered in original form or by telecopier) 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.
25
(e) Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act, (d) the term "Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act, (e) the term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder, (f) the term "Securities Act" shall mean
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, (g) the term "Exchange Offer Registration
Period" shall mean the one-year period following the consummation of the
Registered Exchange Offer, exclusive of any period during which any stop order
shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement, and (h) the term "Shelf Registration" shall mean a
registration effected pursuant to Section 2 hereof.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
(h) No Inconsistent Agreements. The Company has not entered
into, and shall not, on or after the date of this Agreement, enter into any
agreement that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
(i) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms,
26
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or Exchange Securities is required hereunder, Securities or Exchange
Securities, as applicable, held by the Company or its Affiliates shall be
disregarded and deemed not to be outstanding in determining whether such consent
or approval was given by the Holders of such required percentage.
27
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Initial Purchasers.
Very truly yours,
RITE AID CORPORATION,
By
----------------------------------
Name:
Title:
Accepted:
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Fleet Securities, Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By
--------------------------------------------
Name:
Title:
For themselves and the other several Initial Purchasers named in Schedule I to
the Purchase Agreement.
28
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-
dealer in connection with resales of Exchange Securities received in exchange
for Securities where such Securities were acquired by such broker-dealer as a
result of market- making activities or other trading activities. The Company has
agreed that, starting on the Expiration Date (as defined herein) and ending on
the close of business 180 days after the Expiration Date, it will make this
prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. This prospectus, as it may be amended or supplemented from time to
time, may be used by a broker- dealer in connection with resales of Exchange
Securities received in exchange for Securities where such Securities were
acquired as a result of market-making activities or other trading activities.
The Company has agreed that, starting on the Expiration Date (as defined herein)
and ending on the close of business 180 days after the Expiration Date, it will
make this prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until _______________,
200__, all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the over-the-
counter market, in negotiated transactions, through the writing of options on
the Exchange Securities or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker- dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date the Company
will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Registered Exchange Offer
(including the expenses of one counsel for the Holders of the Securities) other
than commissions or concessions of any broker-dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
2
ANNEX D
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
