REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of June 14, 2001, by and between RITE AID CORPORATION, a
Delaware corporation (the "Company"), and MARATHON SPECIAL OPPORTUNITY FUND LTD.
("Marathon Special") and MARATHON MASTER FUND LTD. ("Marathon Master" and
together with Marathon Special, "Marathon").
W I T N E S S E T H:
WHEREAS, the Company has issued to Marathon, in exchange for
certain outstanding indebtedness of the Company, the Exchange Shares (as defined
below) in accordance with the terms of two Equity for Debt Exchange Agreements
between the Company and each of (i) Marathon Master, and (ii) Marathon Special,
such exchange agreements dated as of April 20, 2001 and April 27, 2001
respectively (collectively, the "Exchange Agreements");
WHEREAS, in connection with the sale of the Exchange Shares to
Marathon, the Company has agreed to provide Marathon with the registration
rights set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto hereby agree as
follows:
ARTICLE I
Certain Definitions
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
1.1 "Commission" shall mean the Securities and Exchange
Commission or any federal agency at the time administering the Securities Act.
1.2 "Common Stock" shall mean the common stock of the Company,
par value $1.00 per share.
1.3 "Deferral Period" shall have the meaning set forth in
Section 2.1(d).
1.4 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any federal statute then in effect which has replaced such
statute.
1.5 "Exchange Shares" shall mean the shares of Common Stock
acquired by Marathon pursuant to the Exchange Agreements.
1.6 "Holder" shall mean Marathon for so long as it owns any
Registrable Securities and any other Person who is a holder or beneficial owner
of Registrable Securities for so long as such Person owns any Registrable
Securities.
1.7 "Person" shall mean an individual, corporation, limited
liability company, joint venture, partnership, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity that may be treated as a person under applicable law.
1.8 "Registrable Securities" shall mean the Exchange Shares,
provided that such securities shall cease to be Registrable Securities when (i)
a registration statement registering such Registrable Securities under the
Securities Act has been declared or becomes effective and such Registrable
Securities have been sold or otherwise transferred by the Holder thereof
pursuant to such effective registration statement; (ii) such Registrable
Securities are sold pursuant to Rule 144 under circumstances in which any legend
borne by such Registrable Securities relating to restrictions on the
transferability thereof, under the Securities Act or otherwise, is removed by
the Company or such Registrable Securities are eligible to be sold pursuant to
paragraph (k) of Rule 144; or (iii) such Registrable Securities shall cease to
be outstanding.
1.9 "Rule 144" shall mean Rule 144 promulgated under the
Securities Act.
1.10 "Securities Act" shall mean Securities Act of 1933, as
amended, or any federal statute then in effect which has replaced such statute.
1.11 "Shelf Registration Statement" shall have the meaning set
forth in Section 2.1(a).
2
ARTICLE II
Registration Rights
2.1 Shelf Registration
(a) As soon as is reasonably practicable but not later
than sixty (60) days after the Company files its Annual Report on Form 10-K for
the fiscal year ended March 3, 2001, the Company will file a shelf registration
statement with the Commission on Form S-1 or any other appropriate form (it
being understood by all parties that the Company will not be eligible to use
Form S-3 prior to October 11, 2001) under Rule 415 of the Securities Act, or any
similar rule that may be adopted by the Commission relating to the offer and
sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such shelf registration statement (together with all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the prospectus contained therein, all exhibits thereto
and all material incorporated by reference thereto, the "Shelf Registration
Statement"), provided that the Company may also register for sale on its own
account or that of any other holder of equity securities of the Company pursuant
to the Shelf Registration Statement such additional shares of the Company's
stock as it shall desire.
(b) The Company will use its reasonable best efforts to
cause the registration statement filed pursuant to Section 2.1(a) to be declared
effective as son as reasonably practicable, and to remain effective for a period
ending on the earlier of (i) the date two years after the effective date of the
Registration Statement and (ii) the date on which there cease to be any
Registrable Securities outstanding.
(c) Each Holder of Registrable Securities that wishes to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related prospectus agrees to deliver a notice and questionnaire in the form
attached hereto as Exhibit A (a "Notice and Questionnaire") at least 5 business
days prior to the intended distribution of Registrable Securities under the
Shelf Registration State ment. Provided that the Shelf Registration Statement
has been declared effective, the Company shall, as promptly as is practicable
after a Holder has delivered a Notice and Questionnaire and such other
information as the Company may reasonably require, (i) if required by applicable
law, file with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by
3
applicable law, file a supplement to the related prospectus or amendment to any
document incorporated therein by reference or file any other required document
so that such Holder is named as a selling security holder in the Shelf
Registration Statement and the related prospectus in such a manner as to permit
such Holder to deliver such prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use its best
efforts to cause such post-effective amend ments to be declared effective under
the Act as promptly as is practicable, (ii) provide such Holder copies of any
documents filed pursuant to the foregoing and (iii) notify such Holder as
promptly as practicable after the effectiveness of any post- effective amendment
filed hereunder, provided, however, that if the Notice and Questionnaire is
delivered during a Deferral Period, the Company shall so inform the Holder
delivering such Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 2.1(d) hereof.
(d) Notwithstanding anything in Section 2.1(b), 2.1(c) or
2.4 hereof, the Company may take action that would result in the Holders of
Registrable Securities being unable to offer and sell Registrable Securities
under a Shelf Registration Statement that has been filed pursuant to this
Section 2.1 (i) if such action is required by applicable law, (ii) upon the
occurrence of any event that requires any change to be made to the Shelf
Registration Statement so that, as of such date, the Shelf Registration
Statement does not 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, or (iii) if the continued effectiveness of
the Shelf Registration Statement would require the Company to disclose a
material financing, acquisition or other corporate development, and the Board of
Directors of the Company has determined in good faith that such disclosure would
be detrimental to the interests of the Company. The period during which the
Company is required to maintain the effectiveness of the Shelf Registration
Statement pursuant to Section 2.1(b)(i) shall be extended by the duration of all
periods during which the availability of the Shelf Registration Statement and
prospectus is suspended in accordance with the foregoing (each such period of
suspension being referred to herein as a "Deferral Period"). Except as set
provided below, in no event will the Deferral Periods exceed, in the aggregate,
ninety (90) days in any 365 day period. Notwithstanding anything to the contrary
contained in this Agreement, the Company may at any time, or from time to time,
cause one or more additional Deferral Periods (each, an "Additional Deferral
Period"), in order to file a post effective amendment to the Shelf Registra tion
Statement to (i) include and update the Company's financial statements for the
Company's first fiscal quarter ending June 2, 2001; (ii) include and update the
4
Company's financial statements for the Company's second fiscal quarter ending
September 1, 2001, or (iii) effectuate an offering pursuant to Section 2.1(e)
below. No Additional Deferral Period shall count against the 90 day limitation
above.
(e) The Holders may elect to sell Registrable Securities
in an underwritten offering in accordance with the conditions set forth in this
Section 2.1(e). In any such underwritten offering, the investment banker or
bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto will be
approved by a majority in interest of the Holders, subject, in each case, to the
consent of the Company, which consent will not be unreasonably withheld, and the
Holders will be responsible for all underwriting commissions and discounts in
connection therewith. The Company shall not be obligated to arrange for more
than one underwritten offering pursuant to the Shelf Registration Statement. No
Holder may participate in any underwritten offering hereunder unless the Holder
(i) agrees to sell the Holder's Registrable Securities on the basis provided in
any underwriting arrangements approved pursuant hereto and (ii) completes and
executes all other questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
2.2 Piggyback Registration.
(a) If the Company has not filed the Shelf Registration
Statement, and the Company shall determine to register any equity securities of
the Company for its own account or for the account of other holders of equity
securities of the Company on any registration form (other than Form S-4 or S-8
or other successor forms) which permits the inclusion of Registrable Securities
held by any Holder (a "Piggyback Registration"), the Company will promptly give
each Holder written notice thereof and, subject to Section 2.2(c), shall include
in such registration all Registrable Securities requested to be included therein
pursuant to the written requests of Holders received within 20 days after
delivery of the Company's notice.
(b) If the Piggyback Registration relates to an
underwritten public offering, the Company shall so advise the Holders as part of
the written notice given pursuant to Section 2.2(a). In such event, the right of
any Holder to participate in such registration shall be conditioned upon such
Holder's participation in such underwriting in accordance with the terms and
conditions thereof. The Board shall have the right to select the managing
underwriter(s) for any underwritten Piggyback Registration. All Holders
proposing to distribute their Registrable Securities through
5
such underwriting shall (together with the Company) enter into an underwriting
agreement in customary form.
(c) If such proposed Piggyback Registration is an under
written offering, and the managing underwriter for such offering advises the Com
pany that the securities requested to be included therein exceeds the amount of
securities that can be sold in such offering, any securities to be sold by the
Company or other holders of the Company's securities initiating such offering or
otherwise contractually entitled to be included in such offering prior to the
Holders of the Registrable Securities shall have priority over any Registrable
Securities held by Holders, and the number of shares to be included by a Holder
and other holders of the Company's securities that did not initiate the offering
in such registration shall be reduced pro rata on the basis of the percentage of
the then outstanding Registrable Securities held by each such Holder and all
other holders exercising similar registra tion rights.
(d) Notwithstanding the provisions of this Section 2.2,
the Company shall have the right at any time after it shall have given written
notice to the Holders pursuant to Section 2.2 (irrespective of whether a written
request for inclusion of any such securities shall have been made) to elect not
to file any such proposed registration statement, or to withdraw the same after
filing but prior to effectiveness.
2.3 Expenses of Registration. All expenses incurred in
connection with the registrations described herein shall be borne by the
Company, provided that the expenses borne by the Company shall not include the
fees or disbursements of any counsel to or any other adviser of any Holder;
provided, however, in the case of an underwritten offering pursuant to Section
2.1(e) herein, the Company shall pay the fees of one counsel selected by a
majority of the Holders of the Registrable Securities participating in such
underwritten offering, up to a maximum of $25,000. All underwriting discounts,
selling commissions and other similar fees relating to Registrable Securities
included in registration statement of the Company shall be borne by the Holders
of such Registrable Securities pro rata on the basis of the amount of
Registrable Securities sold by them.
2.4 Registration Procedures. In the case of each registration
effected by the Company pursuant to this Article II involving the registration
of Registrable Securities, the Company will keep each Holder advised in writing
as to the initiation of such registration and as to the completion thereof. At
its expense, the Company will use its best efforts to:
6
(a) cause such registration to be declared effective by
the Commission;
(b) as soon as reasonably possible, prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus included therein (including post-effective amendments,
prospec tus supplements and pricing supplements) as may be necessary, including
in the case of a Shelf Registration Statement such amendments and supplements as
are neces sary to effect and maintain the effectiveness of such registration
statement for the period specified in Section 2.1(b);
(c) provide (i) the Holders of the Registrable Securities
to be included in such registration statement, (ii) 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,
thereof, (iii) the sales or placement agent therefor, if any, (iv) counsel for
such underwriters or agent, and (v) not more than one counsel for all the
Holders of such Registrable Securities the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment or supplement thereto;
(d) (i) register or qualify the Registrable Securities to
be included in such registration statement under such securities laws or blue
sky laws of such jurisdictions as any Holder of such Registrable Securities and
each placement or sales agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, and (ii) take any and all other actions as may be
reasonably necessary or advisable to enable each such Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such jurisdictions of such
Registrable Securities; provided, however, that the Company shall not be
required for any other purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 2.4(d) or (2) consent to general service of process
or taxation in any such jurisdiction;
(e) furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as any Holder from time to time may reasonably request;
(f) promptly notify the selling Holders of Registrable
Securities, the sales or placement agent, if any, therefor and the managing
under writer or underwriters, if any, thereof and confirm such advice in
writing, (i) when such registration statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment
7
has been filed, and with respect to such registration statement or any
post-effective amendment, when the same has become effective, (ii) of any
comments by the Commission, the Blue Sky or securities commissioner or regulator
of any state with respect thereto or any request by the Commission for
amendments or supplements to such registration statement or prospectus or for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation or threatening of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for the sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (v) at any
time when a prospectus is required to be delivered under the Securities Act,
that such registra tion statement, prospectus, prospectus amendment or
supplement or post-effective amendment, or any document incorporated by
reference in any of the foregoing, contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not mislead ing in light of the
circumstances then existing;
(g) obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective amendment
thereto at the earliest practicable date;
(h) if requested by any managing underwriter or underwrit
ers, any placement or sales agent or any Holder of Registrable Securities,
promptly incorporate in a prospectus supplement or post-effective amendment such
informa tion as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or such
holder specifies should be included therein relating to the terms of the sale of
such Registrable Securities, including, without limitation, information with
respect to the principal amount of Registrable Securities being sold by such
Holder or agent or to any underwriters, the name and description of such Holder,
agent or underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the offering of the Registrable Securities to be sold by such
Holder or agent or to such underwriters;
(i) furnish to each Holder of Registrable Securities
included in such registration statement, each placement or sales agent, if any,
8
therefor, each underwriter, if any, thereof and the respective counsel referred
to in Section 2.4(c) an executed copy of such registration statement, each such
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically and reasonably so
requested by such Holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements of
the Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and any amendment
or supplement thereto by each such Holder and by any such agent and underwriter,
if any, in each case in the form most recently provided to such party by the
Company, in connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(j) cause all Registrable Securities covered by such
registration to be listed on each securities exchange or inter-dealer quotation
system on which similar securities issued by the Company are then listed;
(k) provide a transfer agent and registrar for all
Registrable Securities covered by such registration and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration;
(l) cooperate with the Holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certifi xxxxx shall not bear any restrictive legends;
(m) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable 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 Conduct (the "Rules of
Conduct") of the National Association of Securities Dealers, Inc. ("NASD")
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise use its reasonable best efforts to assist such
broker-dealer in complying with the requirements of such Rules of Conduct,
including, without limitation, by providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules of Conduct; and
9
(n) otherwise comply with all applicable rules and regula
tions of the Commission and make available to its security holders, as soon as
reasonably practicable but in no event later than eighteen months after the
effective date of such registration statement, an earnings statement covering
the period of at least twelve months, but not more than 18 months, beginning
with the first month after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158 thereunder).
2.5 Delivery of Prospectus Supplement. Subject to Section
2.1(d) herein, in the event that the Company would be required, pursuant to
Section 2.4(f) above, to notify the selling Holders of Registrable Securities,
the placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof, the Company shall as soon as reasonably practicable prepare and
furnish to each such Holder, to each placement or sales agent, if any, and to
each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to initial purchasers
of Registrable Securities, such prospectus shall not 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 in light of
the circumstances then existing. Each Holder of Registrable Securities agrees
that upon receipt of any notice from the Company pursuant to Section 2.4(f)
hereof, such Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the registration statement applicable to such Registrable
Securities until such Holder shall have received copies of such amended or
supple mented prospectus, and if so directed by the Company, such Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice.
2.6 Furnishing Information by the Holders. The Company may
require each Holder of Registrable Securities as to which any registration is
being effected to furnish to the Company such information regarding such Holder
and such Holder's intended method of distribution of such Registrable Securities
as the Company may from time to time request in writing. Each such Holder agrees
to promptly notify the Company of any inaccuracy or change in information
previously furnished by such Holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of distribution of such
Registrable Securities or omits to
10
state any material fact regarding such Holder or such Holder's intended method
of distribution of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish information so required so
that such prospectus shall not contain, with respect to such Holder or the
distribution of such Registrable Securities, 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 mislead ing in light of the circumstances
then existing.
2.7 Indemnification.
(a) The Company will indemnify each Holder whose
Registrable Securities are to be included in a registration pursuant to this
Article II, each of such Holder's officers, directors, partners, agents,
employees and representa tives and each person controlling such Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, with respect to each registra tion, qualification or compliance effected
pursuant to this Article II, against all expenses, claims, losses, damages and
liabilities (or actions, proceedings or settle ments in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement, prospec tus, or other
document incorporated by reference therein, or compliance, 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, and will xxxx xxxxx
each such indemnified person for any reasonable legal and other expenses
reasonably incurred in connection with investigating and defending or settling
any such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to a Holder to the extent that any
such claim, loss, damage, liability or expense arises out of or is based on any
untrue statement (or alleged untrue statement) or omission (or alleged omission)
based upon information furnished to the Company by such Holder and provided for
use in such registration statement, prospectus, offering circular or other
document or the Holder delivered a registration or prospectus in violation of
Section 2.5 hereof after notice was provided by the Company as provided in
Section 2.5. It is agreed that the indemnity agree ment contained in this
Section 2.7(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld or
delayed).
(b) Each Holder whose Registrable Securities are included
in any registration effected pursuant to this Article II shall indemnify the
Company,
11
each of its directors, officers, agents, employees and representatives, and each
Person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each other such Holder and
each of their officers, directors, partners, agents, employees and
representatives and each person controlling such Holder, and each underwriter,
if any, of such Registrable Securities and each Person who controls any such
underwriter, against all expenses, claims, losses, damages and liabilities (or
actions, proceedings or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document incident to such registration, qualification or compliance, 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, and
will xxxx xxxxx such indemnified persons for any reasonable legal or other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in strict
conformity with written information furnished to the Company by such Holder and
provided specifically for use therein; provided, however, that (x) no Holder
shall be liable hereunder for any amounts in excess of the gross proceeds
received by such Holder pursuant to such registration, and (y) the obligations
of such Holder hereunder shall not apply to amounts paid in settlement of any
such claims, losses, damages or liabilities (or actions in respect thereof) if
such settlement is effected without the consent of such Holder (which consent
shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this
Section 2.7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld or delayed), and the
Indemnified Party may participate in such defense with counsel reasonably
acceptable to and paid for by the Indemnifying Party but other wise at the
Indemnified Party's expense, and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnify ing Party of its obligations under this Section 2.7 to the extent such
failure is not materially prejudicial. No Indemnifying Party in the defense of
any such claim or
12
litigation shall except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include an
unconditional release of such Indemnified Party from all liability in respect of
such claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section
2.7 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense 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 loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party 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. 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agree ment entered into in connection with an underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
2.8 Other Obligations. With a view to making available the
benefits of certain rules and regulations of the Commission which may effectuate
the registration of Registrable Securities or permit the sale of Registrable
Securities to the public without registration, the Company agrees to:
(a) at such time as any Registrable Securities are
eligible for transfer under Rule 144(k), upon the request of the holder of such
Registrable
13
Securities, remove any restrictive legend from the certificates evidencing such
Registrable Securities at no cost to such holder;
(b) make and keep available public information as defined
in Rule 144 under the Securities Act at all times;
(c) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act at any time after it has become subject to such reporting
requirements; and
(d) furnish any Holder upon request a written statement by
the Company as to its compliance with the reporting requirements of Rule 144 (at
any time from and after 90 days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission (including Rule 144A) allowing a holder of
Registrable Securities to sell any such Registrable Securities without
registration.
ARTICLE III
Termination
This Agreement shall terminate immediately following the
moment at which there exist no securities of the Company that constitute
Registrable Securities; provided, however, that Section 2.7 hereof shall survive
indefinitely.
ARTICLE IV
Miscellaneous
4.1 Recapitalization, Exchanges, etc. Affecting the Common
Stock. The provisions of this Agreement shall apply to the full extent set forth
herein with respect to (a) the Registrable Securities and (b) any and all shares
of capital stock of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of,
14
in exchange for, or in substitution for the Registrable Securities, by reason of
any stock dividend, split, reverse split, combination, recapitalization,
reclassification, merger, consolidation or otherwise. In the event of any change
in the capitalization of the Company as a result of any stock split, stock
dividend or stock combination, the provisions of this Agreement shall be
appropriately adjusted.
4.2 Injunctive Relief. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved Person
will be irreparably damaged and will not have an adequate remedy at law. Any
such Person shall, therefore, in addition to any other remedies available under
applicable law, be entitled to injunc tive relief, including specific
performance, to enforce such obligations, without the posting of any bond, and
if any action should be brought in equity to enforce any of the provisions of
this Agreement, none of the parties hereto shall raise the defense that there is
an adequate remedy at law.
4.3 Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforce able by the respective successors and assigns of the parties hereto. In
the event that any transferee of any Holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing of any kind, be deemed a party hereto for all purposes and such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of and be conclu sively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement.
4.4 Survival. The respective indemnities, agreements,
representa tions, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statements as to the results thereto) made
by or on behalf of any Holder of Registrable Securities, any director, officer
or partner of such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive the transfer of Registrable Securities by such Holder.
4.5 Amendment; Waiver.
15
(a) This Agreement may be amended only by a written
instrument signed by the Company and by Holders holding more than 66% of the
then outstanding Registrable Securities and, in the case of any amendment that
adversely affects any Holder or all of the members of any group of Holders
differ ently from any of the other Holders, by such Holder or the holders of
more than 66% in interest of the securities of the Company held by such group of
Holders.
(b) No provision of this Agreement may be waived orally,
but only by a written instrument signed by the party against whom enforcement of
such waiver is sought. Holders shall be bound from and after the date of the
receipt of a written notice from the Company setting forth such amendment or
waiver, whether or not the Registrable Securities shall have been marked to
indicate such amendment or waiver.
4.6 Notices. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing
(includ ing a writing delivered by facsimile transmission) and shall be deemed
to have been duly given if delivered personally, or sent by either certified or
registered mail, return receipt requested, postage prepaid, or by overnight
courier guaranteeing next day delivery, or by telex or telecopier, at the
following addresses:
16
if to the Company:
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.,
Senior Executive Vice President
and General Counsel
Telecopier: (000) 000-0000
with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
if to Marathon:
with a copy to:
Marathon may, by written notice given to the Company in accordance with this
Section 4.6, change the address to which such notice or other communications are
to be sent to it. All such notices and communications shall be deemed to have
been given on the date of delivery thereof, if delivered by hand, on the fifth
day after the mailing thereof, if mailed, on the next day after the sending
thereof, if by overnight courier and when receipt is acknowledged, if
telecopied.
4.7 Inspection. So long as this Agreement shall be in effect,
this Agreement and any amendments hereto shall be made available for inspection
by any Holder at the principal offices of the Company.
4.8 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
4.9 Headings. Article, section and paragraph headings are
inserted for convenience only and do not constitute a part of this Agreement.
17
4.10 Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof. There
are no restrictions, agreements, promises, representations, warranties,
covenants or under takings with respect to the subject matter hereof other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and under standings between the parties with respect to this
subject matter.
4.11 Illegality. In case any provision in this Agreement shall
be declared or held invalid, illegal or unenforceable, in whole or in part,
whether generally or in any particular jurisdiction, such provision shall be
deemed amended to the extent, but only to the extent, necessary to cure such
invalidity, illegality or unenforceability, and the validity, legality and
enforceability of the remaining provisions, both generally and in every other
jurisdiction, shall not in any way be affected or impaired thereby.
4.12 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart.
18
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth above.
RITE AID CORPORATION
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Executive Vice President and
General Counsel
MARATHON SPECIAL OPPORTUNITY FUND LTD.
By:
---------------------------------------
Name:
Title:
MARATHON MASTER FUND LTD.
By:
---------------------------------------
Name:
Title:
19
EXHIBIT A
Selling Securityholder Notice and Questionnaire
The undersigned holder of shares of the common stock of Rite Aid
Corporation (the "Company") that are Registrable Securities (as that term is
defined in the Registra tion Rights Agreement, dated as of June 14, 2001 (the
"Registration Rights Agree ment") by and among the Company and Marathon Special
Opportunity Fund Ltd. and Marathon Master Fund Ltd, and understands that the
Company has filed with the Securities and Exchange Commission (the "Commission"
a registration statement (the "Shelf Registration Statement" for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"). All capitalized terms not otherwise defined herein shall
have the meaning ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below). Beneficial owners are required to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registra tion Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, as promptly as practicable,
file such amendments to the Shelf Registration Statement or supplements to the
related prospec tus as are necessary to permit such holder to deliver such
prospectus to purchasers of Registrable Securities. The Company has agreed to
pay liquidated damages pursuant to the Registration Rights Agreement under
certain circumstances as set forth therein.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named
A-1
as a selling securityholder in the Shelf Registration Statement and the related
prospectus.
Notice
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
______________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3)
below are held:
______________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in (3) below are held:
2. Address for Notices to Selling Securityholder:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Telephone: ___________________________________________________________
Fax: _________________________________________________________________
Contact Person: ______________________________________________________
3. Beneficial Ownership of Registrable Securities:
A-2
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
______________________________________________________________________
______________________________________________________________________
(b) CUSIP No(s). of such Registrable Securities beneficially owned:
______________________________________________________________________
______________________________________________________________________
4. Beneficial Ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other than the
Registrable Securi ties listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
(b) CUSIP No(s). of such Other Securities beneficially owned:
______________________________________________________________________
______________________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or their predecessors or affiliates)
during the past three years.
State any exceptions here:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as
follows if at all): such Registrable
A-3
Securities may be sold from time to time directly by the undersigned or
alterna tively, through underwriters, broker-dealers or agents. If the
Registrable Securities are sold through underwriters or broker-dealers,
the Selling Securityholder will be responsible for underwriting
discounts or commissions or agent's commissions. Such Registrable
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may
be effected in transactions (which may involve block transac tions) (i)
on any national securities exchange or quotation service on which the
Registrable Securities may be listed or quoted at the time of sale,.
(ii) in the over-the-counter market, (iii) in transactions otherwise
than on such exchanges or services, or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of
Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities and deliver Registrable
Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Note: In no event will such method(s) of distribution take the
form of an underwritten offering of the Registrable Securities without
the prior agree ment of the Company.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Exchange Act and the rules thereunder relating
to stock manipulation, particularly Regulation M thereunder (or any successor
rules or regula tions), in connection with any offering of Registrable
Securities pursuant to the Shelf Registration Statement. The undersigned agrees
that neither it nor any person acting on its behalf will engage in any
transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth therein.
A-4
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholders against
certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided. herein that may occur subsequent to the date hereof at anytime while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
A-5
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Beneficial Owner
By:
-------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
RITE AID CORPORATION. AT:
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq,
Senior Executive Vice President and
General Counsel
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
A-6
