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EXHIBIT 10.9
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
March 22, 1995, by and among Dominick's Supermarkets, Inc., a Delaware
corporation (the "Company"), and each other person executing this Agreement
(the "Investors").
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used herein and
not otherwise defined herein have the meanings ascribed to them in the
Stockholders Agreement (the "Stockholders Agreement"), dated as of the date
hereof, among the Company, DFF Supermarkets, Inc., a Delaware corporation,
Dominick's Finer Foods, Inc., the Investors and certain other stockholders of
the Company. In addition, the following terms shall have the meanings ascribed
to them below:
"Demanding Holder" means any Holder who has initiated a
registration request in compliance with Section 2.1(a); provided, that if such
request was initiated by Other Purchasers or their transferees, (i) "Demanding
Holders" shall include each Other Purchaser and each such transferee who has
requested to have included in a Demand Registration Registrable Securities
pursuant to the notice provision of Section 2.1(a) and (ii) any action required
or permitted to be taken under this Agreement by any Demanding Holders shall be
taken by action of the holders of a majority of the Registrable Securities held
by such Demanding Holders.
"Demand Registration" means a registration of Registrable
Securities under the Securities Act pursuant to a request made under Section
2.1.
"Holder" means each Investor that holds Registrable Securities
and any party who shall hereafter acquire from an investor and hold Registrable
Securities pursuant to the provisions of, and subject to the rights and
restrictions set forth in, the Stockholders Agreement.
"Registrable Security" means each Share until (i) it has been
effectively registered under the Securities Act and disposed of pursuant to an
effective registration statement, (ii) it is sold under circumstances in which
all of the applicable conditions of Rule 144 (or any similar provisions then in
force) under the Securities Act are met, including a sale pursuant to the
provisions of Rule 144(k) or (iii) it has been otherwise Transferred and the
certificate or other evidence of ownership for it is not required to bear the
legend required pursuant to the Stockholders Agreement and it may be resold by
the person receiving such certificate without registration under the Securities
Act.
"Requisite Share Number" on any date means a number of
Registrable Securities representing not less than 35% of the issued and
outstanding Registrable Securities held in the aggregate on such date by the
Other Purchasers and their transferees.
"Selling Holder" means a Holder who sells or proposes to sell
Registrable Securities pursuant to a registration statement under the
Securities Act.
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"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal in an underwritten offering and not as part
of such dealer's market-making activities.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Demand Registration. (a) Request for
Registration by the Purchasers. At any time and from time to time on or after
the earlier of (i) the second anniversary of the Effective Date and (ii) the
consummation of a Qualified IPO, (A) the Other Purchasers and transferees of
Other Purchasers owning, individually or in the aggregate, at least the
Requisite Share Number may make a total of two written requests for a Demand
Registration of not less than 10% of the Registrable Securities held by all
Other Purchasers and transferees of Other Purchasers and (B) Apollo may make a
total of two written requests for a Demand Registration of not less than 10% of
its Registrable Securities; provided, that (1) the Company shall in no event be
obligated to effect more than two Demand Registrations in any 12-month period,
and (2) if any request for a Demand Registration pursuant to (A) or (B) above
shall be made prior to the earliest to occur of an Initial Public Offering or a
Qualified IPO, then the Company shall not be obligated to effect such Demand
Registration unless the Shares to be included therein (including those sold for
the account of the Company, any Piggy-Back Holders and all other Persons)
equals or exceeds 5% (on a fully diluted basis) of the outstanding Shares.
Each such request will specify the number of Registrable Securities proposed to
be sold and will also specify the intended method of disposition thereof.
The Company shall give written notice of any registration
request by Other Purchasers and transferees of Other Purchasers, which request
complies with this Section 2.1(a), within 10 days after the receipt thereof, to
each Other Purchaser and transferee of an Other Purchaser who did not initially
join in such request. Within 20 days after receipt of such notice, any such
Other Purchaser or transferee may request in writing that Registrable
Securities be included in such registration, and the Company shall include in
the Demand Registration the Registrable Securities of each such Other Purchaser
and transferee of an Other Purchaser requested to be so included, subject to
the provisions of Section 2.3. Each such request shall specify the number of
shares of Registrable Securities proposed to be sold and the intended method of
disposition thereof.
(b) Effective Registration. A registration will not be
deemed to have been effected as a Demand Registration unless it has been
declared effective by the Commission and the Company has complied in all
material respects with its obligations under this Agreement with respect
thereto; provided that if, after it has become effective, the offering of
Registrable Securities pursuant to such registration is or becomes the subject
of any Stop order, injunction or other order or requirement of the Commission
or any other governmental or administrative agency, or if any court prevents or
otherwise limits the sale of Registrable Securities pursuant to the
registration (for any reason other than the acts or omissions of the Holders),
such registration will be deemed not to have been effected. If (i) a
registration requested pursuant to this Section 2.1 is deemed not to have been
effected or (ii) the registration requested pursuant to this Section 2.1 does
not remain effective for a period of at least 200 days beyond the effective
date thereof or until the consummation of the distribution by the Holders of
the Registrable Securities included in such registration statement, then such
registration statement shall not count as one of the two Demand Registrations
that may be requested by the Demanding Holder(s) in question and the Company
shall continue to be obligated to effect a registration pursuant to this
Section 2.1.
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The Demanding Holders may withdraw all or any part of the
Registrable Securities from a Demand Registration at any time (whether before
or after the filing or effective date of such Demand Registration), and if all
such Registrable Securities are withdrawn, to withdraw the demand related
thereto. If at any time a registration statement is filed pursuant to a Demand
Registration, and subsequently a sufficient number of Registrable Securities
are withdrawn from the Demand Registration so that such registration statement
does not cover at least the required amounts specified by Section 2.1(a), and
an additional number of Registrable Securities is not so included, the Company
may (or shall, if requested by the Demanding Holders) withdraw the registration
statement, provided that if the Demanding Holders bear the expenses associated
with such withdrawn registration statement, such registration statement will
not count as a Demand Registration and the Company shall continue to be
obligated to effect a registration pursuant to this Section 2.1. If the
Demanding Holders determine to bear such expenses, such expenses shall be borne
by the Demanding Holder(s) whose withdrawal of Registrable Securities resulted
in such registration statement not covering the specified required amounts.
(c) Selection of Underwriter. If the Demanding Holders
so elect, the offering of Registrable Securities pursuant to a Demand
Registration shall be in the form of an underwritten offering. The Demanding
Holders shall select one or more nationally recognized firms of investment
bankers to act as the book-running managing Underwriter or Underwriters in
connection with such offering and shall select any additional investment
bankers and managers to be used in connection with the offering; provided that
such investment bankers and managers must be reasonably satisfactory to the
Company.
Section 2.2 Piggy-Back Registration. If at any time the
Company proposes to file a registration statement under the Securities Act with
respect to an offering by the Company for its own account or for the account of
any securityholders of any class of its equity securities (other than (i) a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission) or (ii) a registration statement filed in connection
with an exchange offer or offering of securities solely to the Company's
existing securityholders), including a registration statement relating to a
Demand Registration, then the Company shall give written notice of such
proposed filing to the Holders as soon as practicable (but in no event less
than 20 days before the anticipated filing date), and such notice shall offer
such Holders the opportunity to register such number of shares of Registrable
Securities as each such Holder may request (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof) (a "Piggy-Back Registration").
The Company shall use its best efforts to cause the managing
Underwriter or Underwriters of a proposed underwritten offering to permit the
Registrable Securities requested by the Holders thereof to be included in a
Piggy-Back Registration (the "Piggy-Back Holders") to be included on the same
terms and conditions as any similar securities of the Company or any other
securityholder included therein and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method of
distribution thereof. Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw. Subject to the provisions of Section 2.1, the Company may
withdraw a Piggy-Back Registration at any time prior to the time it becomes
effective, provided that the Company shall reimburse the Piggy-Back Holders for
all reasonable out-of-pocket expenses (including counsel fees and expenses)
incurred prior to such withdrawal.
No registration effected under this Section 2.2, and no
failure to effect a registration under this Section 2.2, shall relieve the
Company of its obligations pursuant to Section 2.1, and no failure to effect a
registration under this Section 2.2 and to complete the sale of Shares in
connection therewith
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shall relieve the Company of any other obligation under this Agreement
(including, without limitation, the Company's obligations under Sections 3.2
and 4.1).
Section 2.3 Reduction of Offering. (a) Demand Registration.
The Company may include in a Demand Registration shares of Common Stock for the
account of the Company and Registrable Securities for the account of the
Piggy-Back Holders and Shares for the account of other holders thereof
exercising contractual piggy-back rights, on the same terms and conditions as
the Registrable Securities to be included therein for the account of the
Demanding Holders; provided, however, that (i) if the managing Underwriter or
Underwriters of any underwritten offering described in Section 2.1 have
informed the Company in writing that it is their opinion that the total number
of shares which the Demanding Holders, the Company, any Piggy-Back Holders and
any such other holders intend to include in such offering is such as to
materially and adversely affect the success of such offering, then (x) the
number of Shares to be offered for the account of the Company (if any) shall be
reduced (to zero, if necessary) and (y) thereafter, if necessary, the number of
Shares to be offered for the account of such Piggy-Back Holders and such other
holders shall be reduced (to zero, if necessary), in the case of this clause
(Y) pro rata in proportion to the respective number of Shares requested to be
registered, to the extent necessary to reduce the total number of Shares
requested to be included in such offering to the number of Shares, if any,
recommended by such managing Underwriters (and if the number of Shares to be
offered for the account of each such Person has been reduced to zero, and the
number of Shares requested to be registered by the Demanding Holders exceeds
the number of Shares recommended by such managing Underwriters, then the number
of Shares to be offered for the account of the Demanding Holders shall be
reduced pro rata in proportion to the respective number of Shares requested to
be registered by the Demanding Holders) and (ii) if the offering is not
underwritten, no other party (other than Piggy-Back Holders and any other
holders exercising contractual piggy-back rights not subject to the reduction
contemplated by this clause (ii)), including the Company, shall be permitted to
offer securities under any such Demand Registration unless a majority of the
Shares held by the Demanding Holder or Holders consent to the inclusion of such
shares therein.
(b) Piggy-Back Registration. Notwithstanding anything
contained herein, if the managing Underwriter or Underwriters of any
underwritten offering described in Section 2.2 have informed, in writing, the
Piggy-Back Holders that it is their opinion that the total number of Shares
that the Company and Holders of Registrable Securities and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to materially and adversely affect the success of such offering,
then the number of Shares to be offered for the account of the Piggy-Back
Holders and all such other Persons (other than the Company) participating in
such registration shall be reduced (to zero if necessary) or limited pro rata
in proportion to the respective number of Shares requested to be registered to
the extent necessary to reduce the total number of Shares requested to be
included in such offering to the number of Shares, if any, recommended by such
managing Underwriters; provided, however, that (A) if such offering is effected
for the account of Demanding Holders pursuant to Section 2.1, then the number
of Shares to be offered for the account of each Person shall be reduced in
accordance with Section 2.3(a), and (B) if such offering is effected for the
account of any other securityholder of the Company pursuant to the demand
registration rights of such securityholder, then (x) the number of Shares to be
offered for the account of the Company (if any) shall be reduced (to zero, if
necessary) and (y) thereafter, if necessary, the number of Shares to be offered
for the account of the Piggy-Back Holders and any other holders that have
requested to include Shares in such registration (but not such securityholders
who have exercised their demand registration rights) shall be reduced (to zero,
if necessary), in the case of this clause (y) pro rata in proportion to the
respective number of Shares requested to be registered, to the extent necessary
to reduce the total number of Shares requested to be included in such offering
to the number of Shares, if any, recommended by such managing Underwriters.
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ARTICLE III
REGISTRATION PROCEDURES
Section 3.1 Filings; Information. Whenever the Company is
required to effect or cause the registration of Registrable Securities pursuant
to Section 2.1, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof as quickly as practicable, and in
connection with any such request:
(a) The Company will as expeditiously as possible prepare
and file with the Commission a registration statement on any form for which the
Company then qualifies or which counsel for the Company shall deem appropriate
and which form shall be available for the sale of the Registrable Securities to
be registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration statement to
become and remain effective for a period of not less than 200 days (or such
shorter period as is required to complete the distribution of the shares);
provided that the Company may postpone the filing of a registration statement
for a period of not more than 135 days from the date of receipt of the request
in accordance with Section 2.1 if the Company reasonably determines that such a
filing would adversely affect any proposed financing or acquisition by the
Company and furnishes to the Demanding Holder a certificate signed by an
executive officer of the Company to such effect; provided that the Company
shall only be entitled to postpone any such filing one time in any twenty-four
month period. If the Company postpones the filing of a Registration Statement,
it shall promptly notify the Purchasers in writing when the events or
circumstances permitting such postponement have ended.
(b) The Company will as expeditiously as possible prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be necessary to keep such registration statement continuously effective for a
period of not less than 200 days or such shorter period which will terminate
when all securities covered by such registration statement have been sold (but
not before the expiration of the 90-day period referred to in Section 4(3) of
the Securities Act and Rule 174 thereunder, if applicable) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by each Selling Holder
thereof set forth in such registration statement.
(c) The Company will, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to each
Selling Holder, counsel representing such Selling Holders, and each
Underwriter, if any, of the Registrable Securities covered by such registration
statement copies of such registration statement as proposed to be filed,
together with exhibits thereto, which documents will be subject to review and
comment by the foregoing within five days after delivery, and thereafter
furnish to such Selling Holder, counsel and Underwriter, if any, for their
review and comment such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein), the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents or information as such Selling Holder, counsel or Underwriter
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Selling Holder.
(d) After the filing of the registration statement, the
Company will promptly notify each Selling Holder of Registrable Securities
covered by such registration statement, and (if requested
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by any such Selling Holder) confirm such notice in writing, (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
Commission or any other Federal or state governmental authority for amendments
or supplements to a registration statement or related prospectus or for
additional information, (iii) of the issuance by the Commission or any other
Federal or state governmental authority of any stop order suspending the
effectiveness of a registration statement or the initiation of any proceedings
for that purpose, (iv) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Securities the representations and warranties of the Company contained in any
agreement contemplated by Section 3.1(h) (including any underwriting agreement)
cease to be true and correct in all material respects, (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the happening of any event which makes any
statement made in such registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in a
registration statement, prospectus or documents incorporated therein by
reference so that, in the case of the registration statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the prospectus, it will not contain any
untrue statement of a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and (vii) of the Company's reasonable determination
that a post-effective amendment to a registration statement would be necessary.
(e) The Company will use its best efforts to (i) register
or qualify the Registrable Securities under such other securities or blue sky
laws of such jurisdictions in the United States as any Selling Holder
reasonably (in light of such Selling Holder's intended plan of distribution)
requests, and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities in the United
States as may be necessary by virtue of the business and operations of the
Company and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Selling Holder to consummate the
disposition of the Registrable Securities owned by such Selling Holder;
provided that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (e), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(f) The Company will take all reasonable actions required
to prevent the entry, or obtain the withdrawal, of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of any Registrable
Securities for sale in any jurisdiction, at the earliest moment.
(g) Upon the occurrence of any event contemplated by
paragraph 3.1(d)(vi) or 3.1(d)(vii) above, the Company will (i) prepare a
supplement or post-effective amendment to such registration statement or a
supplement to the related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, such
prospectus will 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, in light of the circumstances under which they were made,
not misleading, and (ii) promptly make available to each Selling Holder any
such supplement or amendment.
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(h) The Company will enter into customary agreements
(including, if applicable, an underwriting agreement in customary form and
which is reasonably satisfactory to the Company) and take such other actions as
are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities (the Selling Holders may, at their option, require
that any or all of the representations, warranties and covenants of the Company
to or for the benefit of such Underwriters also be made to and for the benefit
of such Selling Holders).
(i) The Company will make available to each Selling
Holder (and will deliver to their counsel) and each Underwriter, if any,
subject to restrictions imposed by the United States federal government or any
agency or instrumentality thereof, copies of all correspondence between the
Commission and the Company, its counsel or auditors and will also make
available for inspection by any Selling Holder, any Underwriter participating
in any disposition pursuant to such registration statement and any attorney,
accountant or other professional retained by any such Selling Holder or
Underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers and employees to
supply all information reasonably requested by any Inspectors in connection
with such registration statement. Records which the Company determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
such registration statement or (ii) the disclosure or release of such Records
is requested or required pursuant to oral questions, interrogatories, requests
for information or documents or a subpoena or other order from a court of
competent jurisdiction or other process; provided that prior to any disclosure
or release pursuant to clause (ii), the Inspectors shall provide the Company
with prompt notice of any such request or requirement so that the Company may
seek an appropriate protective order or waive such Inspectors' obligation not
to disclose such Records; and, provided further, that if failing the entry of a
protective order or the waiver by the Company permitting the disclosure or
release of such Records, the Inspectors, upon advice of counsel, are compelled
to disclose such Records, the Inspectors may disclose that portion of the
Records which counsel has advised the Inspectors that the Inspectors are
compelled to disclose. Each Selling Holder agrees that information obtained by
it solely as a result of such inspections (not including any information
obtained from a third party who, insofar as is known to the Selling Holder
after reasonable inquiry, is not prohibited from providing such information by
a contractual, legal or fiduciary obligation to the Company) shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates unless and
until such information is made generally available to the public. Each Selling
Holder further agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
(j) The Company will furnish to each Selling Holder and
to each Underwriter, if any, a signed counterpart, addressed to such Selling
Holder or Underwriter, of (i) an opinion or opinions of counsel to the Company,
and (ii) a comfort letter or comfort letters from the Company's independent
public accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case may be, as
the Selling Holders or the managing Underwriter therefor reasonably requests.
(k) The Company will otherwise use its best efforts to
comply with all applicable rules and regulations of the Commission, and make
available to its securityholders, as soon as reasonably practicable, an
earnings statement covering a period of 12 months, beginning within three
months after
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the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act.
(l) The Company will use its best efforts (a) to cause
any class of Registrable Securities to be listed on a national securities
exchange (if such shares are not already so listed) and on each additional
national securities exchange on which similar securities issued by the Company
are then listed (if any), if the listing of such Registrable Securities is then
permitted under the rules of such exchange or (b) to secure designation of all
such Registrable Securities covered by such registration statement as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, to secure NASDAQ authorization for such
Registrable Securities and, without limiting the generality of the foregoing,
to arrange for at least two market makers to register as such with respect to
such Registrable Securities with the National Association of Securities
Dealers, Inc. (the "NASD").
(m) The Company will appoint a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement.
(n) Prior to the effective date of the first Demand
Registration or the first Piggy-Back Registration, whichever shall occur first,
(i) provide the transfer agent with printed certificates for the Registrable
Securities in a form eligible for deposit with The Depository Trust Company,
and (ii) provide a CUSIP number for the Registrable Securities.
(o) In connection with an underwritten offering, the
Company will participate, to the extent reasonably requested by the managing
Underwriter for the offering or the Selling Holders, in customary efforts to
sell the securities under the offering, including, without limitation,
participating in "road shows"; provided that the Company shall not be obligated
so to participate in more than one such offering in any 12-month period.
The Company may require each Selling Holder to promptly
furnish in writing to the Company such information regarding the distribution
of the Registrable Securities by such Selling Holder as the Company may from
time to time reasonably request and such other information as may be legally
required in connection with such registration including, without limitation,
all such information as may be requested by the Commission or the NASD. The
Company may exclude from such registration any Holder who fails to provide such
information.
Each Selling Holder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
Sections 3.1(d)(iii), (v), (vi) and (vii) hereof, such Selling Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Selling
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3.1(g) hereof, and, if so directed by the Company, such
Selling Holder will deliver to the Company all copies, other than permanent
file copies, then in such Selling Holder's possession of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 3.1(a) hereof) by the
number of days during the period from and including the date of the giving of
notice pursuant to Section 3.1(d)(iii), (v), (vi) or (vii) hereof to the date
when the Company shall make available to the Selling Holders a prospectus
supplemented or amended to conform with the requirements of Section 3.1(g)
hereof.
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In connection with any registration of Registrable Securities
pursuant to Section 2.2, the Company will take the actions contemplated by
paragraphs (c), (d), (e), (i), (j), (k), (l) and (n) above.
Section 3.2 Registration Expenses. In connection with the
Demand Registrations pursuant to Section 2.1 hereof, and any registration
statement filed pursuant to Section 2.2 hereof, the Company shall pay the
following registration expenses incurred in connection with the registration
hereunder (the "Registration Expenses"): (i) all registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities), (iii) printing expenses,
(iv) the Company's internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties) and all fees and expenses incident to the performance of or
compliance with this Agreement by the Company, (v) the fees and expenses
incurred in connection with the listing of the Registrable Securities, (vi)
reasonable fees and disbursements of counsel for the Company and customary fees
and expenses for independent certified public accountants retained by the
Company (including the expenses of any comfort letters or costs associated with
the delivery by independent certified public accountants of a comfort letter or
comfort letters requested pursuant to Section 3.1(i) hereof), (vii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration, and (viii) reasonable fees and expenses of
one firm of counsel for the Holders (together with necessary local counsel fees
and expenses), which counsel shall be chosen by the Demanding Holders or, if
none, by the Holders of a majority of the Registrable Securities being included
in such Registration Statement. The Company shall have no obligation to pay
any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.1 Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Selling Holder, its partners,
officers, directors, employees and agents, and each Person, if any, who
controls such Selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, together with the partners, officers,
directors, employees and agents of such controlling Person (collectively, the
"Controlling Persons"), from and against any loss, claim, damage, liability,
reasonable attorneys' fee, cost or expense and costs and expenses of
investigating and defending any such claim (collectively, the "Damages"), joint
or several, and any action in respect thereof to which such Selling Holder, its
partners, officers, directors, employees and agents, and any such Controlling
Person may become subject under the Securities Act or otherwise, insofar as
such Damages (or proceedings in respect thereof) arise out of, or are based
upon, any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities or any preliminary prospectus, or arises out of, or are
based upon, any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based upon information furnished in
writing to the Company by a Selling Holder or Underwriter expressly for use
therein, and shall reimburse each Selling Holder, its partners, officers,
directors, employees and agents, and each such Controlling Person for any legal
and other expenses reasonably incurred by that Selling Holder, its partners,
officers, directors, employees and agents, or any such Controlling Person in
investigating or defending or preparing to defend against any such Damages or
proceedings; provided, however, that the Company shall not be liable to any
Selling Holder to the extent that (a) any such Damages arise out of or are
based upon an untrue statement or omission made in any preliminary prospectus
if (i) such Holder failed to send or
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deliver a copy of the final prospectus with or prior to the delivery of written
confirmation of the sale by such Selling Holder to the Person asserting the
claim from which such Damages arise, and (ii) the final prospectus would have
corrected such untrue statement or such omission; or (b) any such Damages arise
out of or are based upon an untrue statement or omission in any prospectus if
(x) such untrue statement or omission is corrected in an amendment or
supplement to such prospectus, and (y) having previously been furnished by or
on behalf of the Company with copies of such prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such prospectus as so
amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the Person asserting the claim from which such Damages arise. The
Company also agrees to indemnify any Underwriters of the Registrable
Securities, their officers and directors and each Person who controls such
Underwriters on substantially the same basis as that of the indemnification of
the Selling Holders provided in this Section 4.1.
Section 4.2 Indemnification by Holders of Registrable
Securities. Each Selling Holder agrees, severally but not jointly, to
indemnify and hold harmless the Company, its officers, directors, employees and
agents and each Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, together
with the partners, officers, directors, employees and agents of such
controlling Person, to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with reference to information related
to such Selling Holder, or its plan of distribution, furnished in writing by
such Selling Holder or on such Selling Holder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case
any action or proceeding shall be brought against the Company or its officers,
directors, employees or agents or any such controlling Person or its partners,
officers, directors, employees or agents, in respect of which indemnity may be
sought against such Selling Holder, such Selling Holder shall have the rights
and duties given to the Company, and the Company or its officers, directors,
employees or agents, controlling Person, or its partners, officers, directors,
employees or agents, shall have the rights and duties given to such Selling
Holder, under Section 4.1. Each Selling Holder also agrees to indemnify and
hold harmless each other Selling Holder and any Underwriters of the Registrable
Securities, and their respective officers and directors and each Person who
controls each such other Selling Holder or Underwriter on substantially the
same basis as that of the indemnification of the Company provided in this
Section 4.2. The Company shall be entitled to receive indemnities from
Underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above, with respect to information so furnished in writing by such Persons
specifically for inclusion in any prospectus or registration statement. In no
event shall the liability of any Selling Holder be greater in amount than the
dollar amount of the proceeds (net of payment of all expenses) received by such
Selling Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
Section 4.3 Conduct of Indemnification Proceedings. Promptly
after receipt by any Person in respect of which indemnity may be sought
pursuant to Section 4.1 or 4.2 (an "Indemnified Party") 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 Person against whom such indemnity
may be sought (an "Indemnifying Party") notify the Indemnifying Party in
writing of the claim or the commencement of such action, provided that the
failure to notify the Indemnifying Party shall not relieve it from any
liability except to the extent of any material prejudice resulting therefrom.
If any such claim or action shall be brought against an Indemnified Party, and
it shall notify the Indemnifying Parry 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;
provided, that the Indemnifying Party acknowledges, in a writing in form and
substance reasonably satisfactory to such Indemnified Party, such Indemnifying
Party's
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liability for all Damages of such Indemnified Party to the extent specified in,
and in accordance with this Article IV. 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 for any legal or other expenses subsequently incurred by the Indemnified
Party in connection with the defense thereof other than reasonable costs of
investigation; provided that the Indemnified Party shall have the right to
employ separate counsel to represent the Indemnified Party and its controlling
Persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Indemnified Party against the Indemnifying
Party, but the fees and expenses of such counsel shall be for the account of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in
the reasonable judgment of the Indemnifying Party and such Indemnified Party,
representation of both parties by the same counsel would be inappropriate due
to actual or potential conflicts of interest between them, it being understood,
however, that the Indemnifying Party shall not, in connection with any one such
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel) at any time for all
Indemnified Parties, or for fees and expenses that are not reasonable. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any claim or pending or threatened proceeding
in respect of which the 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 arising out of such claim or proceeding. Whether or not the
defense of any claim or action is assumed by the Indemnifying Party, such
Indemnifying Party will not be subject to any liability for any settlement made
without its consent, which consent will not be unreasonably withheld.
Section 4.4 Contribution. If the indemnification provided for
in this Article IV is unavailable to the Indemnified Parties in respect of any
Damages referred to herein, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Damages (i) as between the
Company and the Selling Holders on the one hand and the Underwriters on the
other, in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Holders on the one hand and the
Underwriters on the other from the offering of the Registrable Securities, or if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such Damages, as well as any other relevant equitable
considerations, and (ii) as between the Company on the one hand and each Selling
Holder on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each Selling Holder in connection with such
statements or omissions, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Holders on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and the Selling Holders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the prospectus. The relative fault of the Company and the Selling
Holders on the one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the Selling
Holders or by the Underwriters. The relative fault of the Company on the one
hand and of each Selling Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged
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untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be
just and equitable if contribution pursuant to this Section 4.4 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of
the Damages referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no Selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Selling Holder were offered
to the public (less underwriting discounts and commissions) exceeds the amount
of any damages which such Selling Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. Each
Selling Holder's obligations to contribute pursuant to this Section 4.4 is
several and not joint.
The indemnity, contribution and expense reimbursement
obligations contained in this Article IV are in addition to any liability any
Indemnifying Party may otherwise have to an Indemnified Party or otherwise.
The provisions of this Article IV shall survive, notwithstanding any transfer
of the Registrable Securities by any Holder or any termination of this
Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Participation in Underwritten Registrations. No
Person may participate in any underwritten registration hereunder unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements, and (b) completes and executes all questionnaires,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and these registration rights;
provided that (i) no Selling Holder shall be required to make any
representations or warranties except those which relate solely to such Holder
and its intended method of distribution, and (ii) the liability of each such
Holder to any Underwriter under such underwriting agreement will be limited to
liability arising from misstatements or omissions regarding such Holder and its
intended method of distribution and any such liability shall not exceed an
amount equal to the amount of net proceeds such Holder derives from such
registration; provided, however, that in an offering by the Company in which any
Holder requests to be included in a Piggy-Back Registration, the Company shall
use its best efforts to arrange the terms of the offering such that the
provisions set forth in clauses (i) and (ii) of this Section 5.1 are true;
provided further, that if the Company fails in its best efforts to so arrange
the terms, the Holder may withdraw all or any part of its Registrable Securities
from the Piggy-Back
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Registration and the Company shall reimburse such Holder for all reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred prior to
such withdrawal.
Section 5.2 Rule 144 and 144A. The Company covenants that it
will file any reports required to be filed by it under the Securities Act and
the Exchange Act and that it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable
Holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
or Rule 144A under the Securities Act, as such Rules may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder, the Company will deliver to such
Holder a written statement as to whether it has complied with such
requirements.
Section 5.3 Holdback Agreements. (a) Restrictions on Public
Sale by Holder of Registrable Securities. Each Holder agrees not to effect any
public sale or distribution of the issue being registered or of a similar
security of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act, during the 14 days prior to, and during the
90-day period beginning on, the effective date of any registration statement
filed by the Company (except as pan of such registration), in the case of an
underwritten public offering, if, and to the extent, requested by the managing
underwriter or underwriters.
The foregoing provisions shall not apply to any Holder that is
prevented by applicable statute or regulation from entering into any such
agreement; provided, however, that any such Holder shall undertake not to
effect any public sale or distribution of the class of securities covered by
such registration statement (except as pan of such underwritten offering)
during such period unless it has provided 60 days' prior written notice of such
sale or distribution to the managing underwriter.
(b) Restrictions on Sale by the Company and Others. The
Company agrees and it shall use its best efforts to cause its Affiliates to
agree (i) not to effect any public sale or distribution of any securities
similar to those being registered in accordance with Section 2.1 hereof, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to, and during the 90-day period beginning on, the
effective date of any registration statement (except as part of such
registration statement), in the case of an underwritten offering, if, and to
the extent, reasonably requested by the managing Underwriter or Underwriters,
and (ii) to use its best efforts to ensure that any agreement entered into
after the date of the Stockholders Agreement pursuant to which the Company
issues or agrees to issue any privately placed securities (other than to
officers or employees) shall contain a provision under which holders of such
securities agree not to effect any sale or distribution of any such securities
during the periods described in (i) above, in each case including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act (except as part of
any such registration, if permitted); provided, however, that the provisions of
this paragraph (b) shall not prevent (x) the conversion or exchange of any
securities pursuant to their terms into or for other securities or (y) the
issuance of any securities to employees of the Company or pursuant to any
employee plan.
Section 5.4 Amendment and Modification. Any provision of
this Agreement may be waived, provided that such waiver is set forth in a
writing executed by the party against whom the enforcement of such waiver is
sought. This Agreement may not be amended, modified or supplemented other than
by a written instrument signed by (a) the Company, (b) the holders of a
majority of the Registrable Securities held by the Purchasers and (c) at least
two unrelated Purchasers; provided, however, that (i) so long as Apollo
beneficially owns at least 25% of the Registrable Securities held by
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Apollo on the Effective Date, without the consent of Apollo, no amendment or
modification which adversely affects the rights or duties of Apollo hereunder
may be effected, (ii) so long as any Other Purchaser beneficially owns at least
25% of the Registrable Securities held by it on the Effective Date and not less
than 47,750 Shares (which number shall be adjusted to reflect stock dividends,
stock-splits, combinations or other reclassifications of stock), without the
consent of such Other Purchaser, no amendment or modification which adversely
affects the rights or duties of such Other Purchaser hereunder may be effected
and (iii) so long as the investors beneficially own at least 25% of the Shares
beneficially owned by such Persons on the Effective Date, without the consent
of a majority of the Registrable Securities held by the Investors, no amendment
or modification which adversely affects the rights or duties of such Investors
hereunder may be affected. No course of dealing between or among any Persons
having any interest in this Agreement will be deemed effective to modify, amend
or discharge any part of this Agreement or any rights or obligations of any
Person under or by reason of this Agreement.
Section 5.5 Successors and Assigns; Entire Agreement. (a)
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns and executors, administrators and heirs; provided, that (i) except as
otherwise specifically permitted pursuant to this Agreement, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by the Company without the prior written consent of each of the
Holders and (ii) Apollo may assign a right to request a Demand Registration
solely in connection with a Transfer to any single Person or group of
affiliated Persons (in a single transaction or series of related transactions)
of at least 25% of the Registrable Securities held by it on the date hereof.
(b) This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges
and supersedes all prior discussions, agreements and understandings of any and
every nature among them.
Section 5.6 Separability. In the event that any provision of
this Agreement or the application of any provision hereof is declared to be
illegal, invalid or otherwise unenforceable by a court of competent
jurisdiction, the remainder of this Agreement shall not be affected except to
the extent necessary to delete such illegal, invalid or unenforceable provision
unless that provision held invalid shall substantially impair the benefits of
the remaining portions of this Agreement.
Section 5.7 Notices. All notices, demands, requests,
consents or approvals (collectively, "Notices") required or permitted to be
given hereunder or which are given with respect to this Agreement shall be in
writing and shall be personally delivered or delivered by a reputable overnight
courier service with charges prepaid, or transmitted by hand delivery,
telegram, telex or facsimile, addressed as set forth below, or such other
address as such party shall have specified most recently by written notice.
Notice shall be deemed given or delivered on the date of service or
transmission if personally served or transmitted by telegram, telex or
facsimile. Notice otherwise sent as provided herein shall be deemed given or
delivered on the next business day following delivery of such notice to a
reputable overnight courier service.
To the Company:
Dominick's Supermarkets, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
and
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To Apollo:
Apollo Advisors, L.P.
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
To the Other Purchasers or the Other Investors:
To the address specified on the signature page of the
Stockholders Agreement executed by such Other
Purchaser.
Section 5.8 Governing Law. This Agreement shall be governed
by and construed in accordance with the internal law of the State of New York,
without giving effect to principles of conflicts of law.
Section 5.9 Headings. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this
Agreement, nor shall they affect their meaning, construction or effect.
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Section 5.10 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original
instrument and all of which together shall constitute one and the same
instrument.
Section 5.11 Further Assurances. Each party shall cooperate
and take such action as may be reasonably requested by another party in order
to carry out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
Section 5.12 Termination. Unless sooner terminated in
accordance with its terms or as otherwise herein provided, this Agreement shall
terminate upon the earlier to occur of (i) the mutual agreement by the parties
hereto, (ii) with respect to any Holder, such Holder ceasing to own any
Registrable Securities or (iii) the fifteenth anniversary of the Effective
Date.
Section 5.13 Remedies. ln the event of a breach or a
threatened breach by any party to this Agreement of its obligations under this
Agreement, any party injured or to be injured by such breach will be entitled
to specific performance of its rights under this Agreement or to injunctive
relief, in addition to being entitled to exercise all rights provided in this
Agreement and granted by law. The parties agree that the provisions of this
Agreement shall be specifically enforceable, it being agreed by the parties
that the remedy at law, including monetary damages, for breach of any such
provision will be inadequate compensation for any loss and that any defense or
objection in any action for specific performance or injunctive relief that a
remedy at law would be adequate is waived.
Section 5.14 Pronouns. Whenever the context may require, any
pronouns used herein shall be deemed also to include the corresponding neuter,
masculine or feminine forms.
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