EXECUTION COPY
RITE AID CORPORATION
5.25% CONVERTIBLE SUBORDINATED NOTES
DUE SEPTEMBER 15, 2002
REGISTRATION RIGHTS AGREEMENT
Dated as of
September 4, 1997
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Bear, Xxxxxxx & Co. Inc.
Salomon Brothers Inc
c/o Goldman Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Rite Aid Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to the Purchasers (as
defined herein) upon the terms set forth in a purchase agreement
dated September 4, 1997 (the "Purchase Agreement") between the
Purchasers and the Company, its 5.25% Convertible Subordinated
Notes due September 15, 2002 (the "Securities"). As an
inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers (i)
for the benefit of the Purchasers and (ii) for the benefit of the
holders from time to time of the Securities and the Common Stock,
par value $1.00 per share (the "Stock"), of the Company issuable
upon conversion of the Securities (collectively, the "Registrable
Securities"), including the Purchasers (each of the foregoing a
"Holder" and, together, the "Holders"), as follows:
1. DEFINITIONS. (a) Capitalized terms used herein without
definition shall have their respective meanings set forth in or
pursuant to the Purchase Agreement or the Offering Circular,
dated September 4, 1997 in respect of the Securities. As used in
this Agreement, the following capitalized defined terms shall
have the following meanings:
"Act" or "Securities Act" means the United States Securities
Act of 1933, as amended.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with such specified person. For
purposes of this definition, control of a person means the power,
direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Commission" means the United States Securities and Exchange
Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section
2 hereof.
"Electing Holder" has the meaning assigned thereto in
Section 3(a)(3) hereof.
"Exchange Act" means the United States Securities and
Exchange Act of 1934, as amended.
"Indenture" means the Indenture, dated as of September 10,
1997, between the Company and Xxxxxx Trust and Savings Bank, as
amended and supplemented from time to time in accordance with is
terms.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer
an underwritten offering, if any, as set forth in Section 6
hereof.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially
in the form of Exhibit A hereto.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency
or political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable
Securities.
"Purchasers" means the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" means all or any portion of the
Securities issued from time to time under the Indenture in
registered form and the shares of Stock issuable upon conversion
of such Securities, including any Securities initially issued in
bearer form and constituting the unsold allotment of a
distributor (within the meaning of Regulation S under the
Securities Act) of such Securities and later exchanged for
Securities in registered form; provided, however, that a security
ceases to be a Registrable Security when it is no longer a
Restricted Security.
"Restricted Security" means any Security or share of Stock
issuable upon conversion thereof except any such Security or
share of Stock which (i) has been effectively registered under
the Securities Act and sold in a manner contemplated by the Shelf
Registration Statement, (ii) has been transferred in compliance
with Rule 144 under the Securities Act (or any successor
provision thereto), (iii) has been sold in compliance with
Regulation S under the Securities Act (or any successor thereto)
and does not constitute the unsold allotment of a distributor
within the meaning of Regulation S under the Securities Act, or
(iv) has otherwise been transferred and a new Security or share
of Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company
in accordance with Section 3.05 of the Indenture.
"Shelf Registration" means a registration effected pursuant
to Section 2 hereof.
"Shelf Registration Statement" means a shelf registration
statement of the Company pursuant to the provisions of Section 2
hereof filed with the Commission which covers some or all of the
Registrable Securities, as applicable, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, 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
therein.
"underwriter" means any underwriter of Registrable
Securities in connection with an offering thereof under a Shelf
Registration Statement.
(b) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of Registrable Securities,
Common Stock shall be treated as representing the principal
amount of Securities which was surrendered for conversion or
exchange in order to receive such number of shares of Common
Stock.
2. SHELF REGISTRATION. (a) The Company shall, within 90
days following the date of original issuance (the "Issue Date")
of the Securities, file with the Commission a Shelf Registration
Statement 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 and, thereafter, shall use
its best efforts to cause such Shelf Registration Statement to be
declared effective under the Act within 180 calendar days after
the Issue Date; provided, however, that no Holder shall be
entitled to have the Registrable Securities held by it covered by
such Shelf Registration unless such Holder is an Electing Holder.
(b) If (i) on or prior to 90 days following the date of
original issuance of the Securities, a Shelf Registration
Statement has not been filed with the Commission, or (ii) on
or prior to the 180th day following the date of original
issuance of the Securities, such Shelf Registration
Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will
accrue on the Securities from and including the day
following such Registration Default to but excluding the day
on which such Registration Default has been cured.
Liquidated Damages will be paid semi-annually in arrears,
with the first semi-annual payment due on the first Interest
Payment Date in respect of the Securities following the date
on which such Liquidated Damages begin to accrue, and will
accrue at a rate per annum equal to an additional one-
quarter of one percent (0.25%) of the principal amount of
the Securities outstanding to and including the 90th day
following such Registration Default and at a rate per annum
equal to one-half of one percent (0.50%) thereof from and
after the 90th day following such Registration Default. In
the event that the Shelf Registration Statement ceases to be
effective prior to the second annual anniversary of the
initial effective date of the Shelf Registration Statement
or such earlier date as is provided in the this Agreement
for a period in excess of 60 days, whether or not
consecutive, during any 12-month period, then the interest
rate borne by the Securities shall increase by an additional
one-half of one percent (0.50%) per annum on the 61st day of
the applicable 12-month period such Shelf Registration
Statement ceases to be effective to but excluding the day on
which the Shelf Registration Statement again becomes
effective.
(c) The Company shall use its best efforts:
(i) To keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of
two years from the date the Shelf Registration Statement is
declared effective or such shorter period that will
terminate upon the earlier of the following: (A) when all
the Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement,
(B) when all shares of Stock issued upon conversion of any
such Securities that had not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement and (C) when, in the written opinion
of independent counsel to the Company, all outstanding
Registrable Securities held by persons that are not
affiliates of the Company may be resold without registration
under the Act pursuant to Rule 144(k) under the Act or any
successor provision thereto (in any such case, such period
being called the "Effectiveness Period"); and
(ii) After the date the Shelf Registration Statement
becomes effective, within 30 days after the request of any
holder of Registrable Securities that is not then an
Electing Holder, to take any action necessary and required
by law to enable such holder to use the Prospectus forming a
part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to
identify such holder as a selling securityholder in the
Shelf Registration Statement; provided, however, that
nothing in this subparagraph shall relieve such holder of
the obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with
Section 3(a)(2) hereof; and
(iii) If at any time, the Securities, pursuant to
Article VIII of the Indenture, are convertible into
securities other than Common Stock, the Company shall, or
shall cause any successor under the Indenture to, cause such
securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may
then be convertible into such securities.
The Company shall be deemed not to have used its best efforts to
keep the Shelf Registration Statement effective during the
requisite period if the Company voluntarily takes any action that
would result in Holders of Registrable Securities covered thereby
not being able to offer and sell any such Registrable Securities
during that period, unless (i) such action in required by
applicable law, or (ii) the continued effectiveness of the Shelf
Registration Statement would require the Company to disclose a
material financing, acquisition or other corporate transaction,
and the Board of Directors shall have determined in good faith
that such disclosure is not in the best interests of the Company
and its stockholders; provided that in the case of clause (i)
above, the Company thereafter must promptly comply with the
requirements of paragraph 3(i) below, if applicable and in the
case of clauses (i) and (ii) above, the Company shall be entitled
to suspend the use of any prospectus forming a part of an
effective Registration Statement under this Section 2 for a
reasonable period of time (a "Delay Period"), except that the
aggregate number of days included in all Delay Periods during any
consecutive 12 months shall not exceed the aggregate of 90 days
(whether or not consecutive).
3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) (1) Not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, the
Company shall mail the Notice and Questionnaire to the
holders of Registrable Securities. No holder shall be
entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and
no holder shall be entitled to use the Prospectus forming a
part thereof for resales of Registrable Securities at any
time, unless such holder has returned a completed and signed
Notice and Questionnaire to the Company by the deadline for
response set forth therein; provided, however, holders of
Registrable Securities shall have at least 28 calendar days
from the date on which the Notice and Questionnaire is first
mailed to such holders to return a completed and signed
Notice and Questionnaire to the Company.
(2) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any holder
of Registrable Securities that is not then an Electing
Holder, promptly send a Notice and Questionnaire to such
holder. The Company shall not be required to take any
action to name such holder as a selling securityholder in
the Shelf Registration Statement or to enable such holder to
use the Prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the
Company.
(3) The term "Electing Holder" shall mean any holder of
Registrable Securities that has returned a completed and
signed Notice and Questionnaire to the Company in accordance
with Section 3(a)(1) or 3(a)(2) hereof.
(b) The Company shall furnish to the Purchasers, prior
to the filing thereof with the Commission, a copy of any
Shelf Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus
included therein.
(c) The Company shall promptly take such action as may
be necessary so that (i) any Shelf Registration Statement
and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto (and each
report or other document incorporated therein by reference
in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules
and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any
Shelf Registration Statement, and any amendment or
supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not
misleading.
(d) (1) The Company shall advise the Purchasers and,
in the case of clause (i), the Electing Holders, and, if
requested by the Purchasers or any such Electing Holder,
confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and
when the Shelf Registration Statement or any post-
effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional
information.
(2) The Company shall advise the Purchasers and the
Electing Holders and, if requested by the Purchasers or any
such Electing Holder, confirm such advice in writing of:
(i) the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) the receipt by the Company of any notification
with respect to the suspension of the qualification of
the securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such
purpose; and
(iii) the happening of any event that requires the
making of any changes in the Shelf Registration Statement
or the Prospectus so that, as of such date, the Shelf
Registration Statement and the Prospectus do not contain
an untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or
necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(e) The Company shall use its best efforts to prevent
the issuance and, if issued, to obtain the withdrawal, of
any order suspending the effectiveness of any Shelf
Registration Statement at the earliest possible time.
(f) The Company shall furnish to each Electing Holder
included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and,
if the Electing Holder so requests in writing, all reports,
other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration
Statement.
(g) The Company shall, during the Effectiveness Period,
deliver to each Electing Holder of Registrable Securities
included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement
thereto as such Electing Holder may reasonably request; and
the Company consents (except during the continuance of any
event described in Section 3(c)(2)(iii)) to the use of the
Prospectus or any amendment or supplement thereto by each of
the Electing Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement
thereto during the Shelf Registration Period.
(h) Prior to any offering of Registrable Securities
pursuant to any Shelf Registration Statement, the Company
shall register or qualify or cooperate with the Electing
Holders of Registrable Securities included therein and their
respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and
sale under the securities or blue sky laws of such
jurisdictions in the United States as any such Electing
Holders reasonably request in writing and do any and all
other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Registrable
Securities covered by such Shelf Registration Statement;
provided, however, that in no event shall the Company be
obligated to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to so qualify but for this Section
3(h), (ii) file any general consent to service of process in
any jurisdiction where it is not as of the date hereof then
so subject or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject.
(i) Unless any Registrable Securities shall be in book-
entry only form, the Company shall cooperate with the
Electing Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and
in such permitted denominations and registered in such names
as Electing Holders may request in connection with the sale
of Registrable Securities pursuant to such Shelf
Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraph 3(c)(2)(iii) above, the Company shall promptly
prepare a post-effective amendment to any Shelf Registration
Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Registrable
Securities included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading (except, in each case, for an untrue
statement of a material fact or omission of a material fact
made in reliance on and in conformity with written
information furnished to the Company by or on behalf of
Electing Holders specifically for use therein); provided,
however, if the Company determines that it is advisable to
disclose in the Shelf Registration Statement a financing,
acquisition or other corporate transaction, and the Board of
Directors of the Company shall have determined in good faith
that such disclosure would not be in the best interests of
the Company and its stockholders, the Company shall not be
required to prepare and file such amendment, supplement or
document for such period as the Board of Directors of the
Company shall have determined in good faith is in the best
interests of the Company. If the Company notifies the
Electing Holders of the occurrence of any event contemplated
by paragraph 3(c)(2)(iii) above, the Electing Holders shall
suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made.
(k) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall provide
a CUSIP number for the Securities registered under such
Shelf Registration Statement.
(l) The Company shall use its best efforts to comply
with all applicable rules and regulations of the Commission,
and to make generally available to its securityholders as
soon as practicable, but in any event not later than
eighteen months after (i) the effective date (as defined in
Rule 158(c) under the Securities Act) of the Shelf
Registration Statement, (ii) the effective date of each
post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company
with the Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Shelf Registration
Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities
Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule
158).
(m) Not later than the Effective Time of the Shelf
Registration Statement, the Company shall cause the
Indenture to be qualified under the Trust Indenture Act; in
connection with such qualification, the Company shall
cooperate with the Trustee under the Indenture and the
Electing Holders (as defined in the Indenture) to effect
such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and the Company shall execute, and
shall use all reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so
qualified in a timely manner. In the event that any such
amendment or modification referred to in this Section 3(m)
involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the
Indenture.
(n) The Company may require each Electing Holder of
Registrable Securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such
information regarding the Electing Holder and the
distribution of such Registrable Securities as may be
required by applicable law or regulation for inclusion in
such Shelf Registration Statement and the Company may
exclude from such registration the Registrable Securities of
any Electing Holder that fails to furnish such information
within a reasonable time after receiving such request.
(o) The Company shall, if requested, promptly include
or incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement, such
information as the Managing Underwriters reasonably agree
should be included therein and to which the Company does not
reasonably object and shall make all required filings of
such Prospectus supplement or post-effective amendment as
soon as practicable after they are notified of the matters
to be included or incorporated in such Prospectus supplement
or post-effective amendment.
(p) The Company shall enter into such customary
agreements (including underwriting agreements in customary
form) to take all other appropriate actions in order to
expedite or facilitate the registration or the disposition
of the Registrable Securities, and in connection therewith,
if an underwriting agreement is entered into, cause the same
to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 (or
such other provisions and procedures acceptable to the
Managing Underwriters, if any) with respect to all parties
to be indemnified pursuant to Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by the
Electing Holders of Registrable Securities to be
registered thereunder, any underwriter participating in
any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent
retained by such Electing Holders or any such underwriter
all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and
employees to make reasonably available for inspection all
relevant information reasonably requested by such
Electing Holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf
Registration Statement, in each case, as is customary for
similar due diligence examinations; provided, however,
that any information that is designated in writing by the
Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential
by such Electing Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by
law, or such information becomes available to the public
generally or through a third party without an
accompanying obligation of confidentiality; and provided
further that the foregoing inspection and information
gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the
other parties entitled thereto by one counsel designated
by and on behalf of such Electing Holders and other
parties reasonably acceptable to the Company;
(iii) make such representations and warranties to the
Electing Holders of Registrable Securities registered
thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by the
Company to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to
the Managing Underwriters, if any) in customary form
addressed to each Electing Holder and the underwriters,
if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such
Electing Holders and underwriters (it being agreed that
the matters to be covered by such opinion or written
statement by such counsel delivered in connection with
such opinions shall include in customary form, without
limitation, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case
may be, the absence from such Shelf Registration
Statement and the prospectus included therein, as then
amended or supplemented, including the documents
incorporated by reference therein, of an untrue statement
of a material fact or the omission to state therein a
material fact required to be stated therein or necessary
to make the statements therein not misleading);
(v) obtain "cold comfort" letters and updates
thereof from the independent public accountants of the
Company (and, if necessary, any other independent public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed
to each such Electing Holder of Registrable Securities
registered thereunder and the underwriters, if any, in
customary form and covering matters of the type
customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(vi) deliver such documents and certificates as may
be reasonably requested by any such Electing Holders and
the Managing Underwriters, if any, including those to
evidence compliance with Section 3(i) and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 3(q) shall be performed at each
closing under any underwritten offering to the extent
required thereunder.
(r) The Company will use its best efforts to cause the
Stock issuable upon conversion thereof to be listed for
quotation on the NYSE or other stock exchange or trading
system on which the Stock primarily trades on or prior to
the effective date of any Shelf Registration Statement
hereunder.
(s) 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 Conduct Rules and the By-Laws of
the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as an Electing Holder of such
Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without
limitation, by (A) such Rules or By-Laws, including Schedule
E thereto, shall so require, engaging a "qualified
independent underwriter" (as defined in Schedule E) to
participate in the preparation of the Shelf Registration
Statement relating to such Registrable Securities and to
exercise usual standards of due diligence in respect
thereto, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (C) 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 Fair Practice of the NASD.
(t) The Company shall use its best efforts to take all
other steps necessary to effect the registration, offering
and sale of the Registrable Securities covered by the Shelf
Registration Statement contemplated hereby.
4. REGISTRATION EXPENSES. Except as otherwise provided in
Section 6, the Company shall bear all fees and expenses incurred
in connection with the performance of its obligations under
Sections 2, 3 and 6 hereof.
5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection
with any Shelf Registration Statement, the Company shall
indemnify and hold harmless the Purchasers, each Electing Holder,
each underwriter who participates in an offering of Registrable
Securities, each person, if any, who controls any of such parties
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each of their respective directors,
officers, employees, trustees and agents (each such person being
sometimes referred to as an "Indemnified Person"), against any
losses, claims, damages or liabilities, joint or several, to
which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration
Statement under which such Registrable Securities are to be
registered under the Securities Act, or any Prospectus contained
therein or furnished by the Company to any Indemnified Person, or
any amendment or supplement thereto, or arise out of or are based
upon the 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 the Company hereby agrees
to reimburse such Indemnified Person for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in such Shelf Registration Statement or
Prospectus in reliance upon and in conformity with written
information furnished to the Company by such Indemnified Person
expressly for use therein; and provided further that the Company
shall not be liable to any Indemnified Person under the indemnity
agreement in this subsection (a) with respect to any Shelf
Registration or Prospectus to the extent that any such loss,
claim, damage or liability of such Indemnified Person results
from the fact that such Indemnified Person sold Securities to a
person as to whom it shall be established that there was not sent
or given, at or prior to the written confirmation of such sale, a
copy of the Shelf Registration Statement or Prospectus in any
case if the Company had previously furnished copies thereof in
sufficient quantity to such Indemnified Person and to the extent
the loss, claim, damage or liability of such Indemnified Person
results from an untrue statement or omission of a material fact
contained in the Shelf Registration Statement or Prospectus which
was identified in writing to such Indemnified Person and
subsequently corrected in the Shelf Registration Statement or
Prospectus and such loss, claim, damage or liability would have
been eliminated by the delivery of such corrected Shelf
Registration Statement or Prospectus.
(b) Each Electing Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company, the
Purchasers, each underwriter who participates in an offering of
Registrable Securities and the other Electing Holders and each of
their respective directors, officers (including each officer of
the Company who signed the Shelf Registration Statement),
employees, trustees and agents and each Person, if any, who
controls the Company, the Purchasers, any underwriter or any
other Electing Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and
against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 5(a)
hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in
the Shelf Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by such Electing Holder expressly for
use in the Shelf Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement
thereto); provided, however, that, no such Electing Holder shall
be liable for any claims hereunder in excess of the amount of net
proceeds received by such Electing Holder from the sale of
Registrable Securities pursuant to the Shelf Registration
Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, enclosing a
copy of all papers served on such indemnified party, but failure
to so notify an indemnifying party shall not relieve it of any
liability which it may have to the indemnified party otherwise
than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any
such action. If an indemnifying party so elects within a
reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying party, may assume the
defense of such action with counsel chosen by it and approved by
the indemnified party or parties defendant in such action,
provided that if any such indemnified party reasonably determines
that there may be legal defenses available to such indemnified
party which are different from or in addition to those available
to such indemnifying party or that representation of such
indemnifying party and any indemnified party by the same counsel
would present a conflict of interest, then such indemnifying
party or parties shall not be entitled to assume such defense.
If an indemnifying party is not entitled to assume the defense of
such action as a result of the proviso to the preceding sentence,
counsel for such indemnifying party shall be entitled to conduct
the defense of such indemnifying party and counsel for each
indemnified party or parties shall be entitled to conduct the
defense of such indemnified party or parties. If an indemnifying
party assumes the defense of an action in accordance with and as
permitted by the provisions of this paragraph, such indemnifying
party shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection
with such action. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. In no event shall an indemnifying party be liable
with respect to any action or claim settled without its written
consent.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity provision
agreement provided for in this Section 5 is for any reason held
to be unavailable to the indemnified parties although applicable
in accordance with its terms, the Company, the Purchasers and the
Electing Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company,
the Purchasers and the Electing Holders, as incurred; provided
that 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 that was not guilty of such
fraudulent misrepresentation. As between the Company, the
Purchasers and the Electing Holders, such parties shall
contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect
the relative fault of the Company, on the one hand, and the
Purchasers and the Electing Holders, on the other hand, with
respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect
thereof, as well as any other relevant equitable considerations.
The relative fault of the Company, on the one hand, and of the
Purchasers and the Electing Holders, on the other hand, 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, on the one hand, or by or on
behalf of the Purchasers or the Electing Holders, on the other,
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission; including with respect to any Purchaser or Electing
Holder, the extent to which such losses, claims, damages or
liabilities with respect to any Shelf Registration Statement or
Prospectus results from the fact that the Purchaser or Electing
Holder sold Securities to a person to whom there was not sent or
given a copy of the Shelf Registration Statement or Prospectus,
where the Company had previously furnished copies thereof in
sufficient quantity to such Purchaser or Electing Holder and to
the extent the loss, claim, damage or liability of such Purchaser
or Electing Holder results from an untrue statement or omission
of a material fact contained in the Shelf Registration Statement
or Prospectus which was identified in writing to such Purchaser
or Electing Holder and subsequently corrected in the Shelf
Registration Statement or Prospectus and such loss, claim, damage
or liability would have been eliminated by the delivery of such
corrected Shelf Registration Statement or Prospectus. The
Company, the Purchasers and the Electing Holders of the
Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 5 were to be
determined by pro rata allocation or by any other method of
allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 5(d), each
director, officer, employee, trustee, agent and Person, if any,
who controls the Purchasers or an Electing Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the
Purchasers or such Electing Holder, and each director, officer,
employee, trustee and agent of the Company, 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 shall have
the same rights to contribution as the Company. No party shall
be liable for contribution with respect to any action, suit,
proceeding or claim settled without its written consent.
(e) Notwithstanding any other provision of this Section 5,
in no event will any (i) Electing Holder be required to undertake
liability to any person under this Section 5 for any amounts in
excess of the dollar amount of the proceeds to be received by
such holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable
thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the
Securities Act and (ii) underwriter, selling agent or other
securities professional be required to undertake liability to any
person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter,
selling agent or other securities professional with respect to
the Registrable Securities underwritten by it and distributed to
the public.
(f) The obligations of the Company under this Section 5
shall be in addition to any liability which the Company may
otherwise have and shall extend, or not extend, as the case may
be, to any Indemnified Person and the obligations of any
Indemnified Person under this Section 5 shall be in addition to
any liability which such Indemnified Person may otherwise have
and shall extend, or not extend, as the case may be, to the
Company. The remedies provided in this Section 5 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to an indemnified party at law or in
equity.
6. UNDERWRITTEN OFFERING. The Electing Holders of
Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell such Registrable
Securities in an underwritten offering in accordance with the
conditions set forth below. 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 the Electing Holders of a majority of the Registrable
Securities to be included in such offering; provided, however,
that (i) with respect to the investment bankers and managers,
such investment bankers and managers will be selected by the
Company from a list of nationally recognized firms to be provided
by the Electing Holders and (ii) the Company shall not be
obligated to arrange for more than one underwritten offering
during the Effectiveness Period. No Electing Holder may
participate in any underwritten offering contemplated hereby
unless such Electing Holder (a) agrees to sell such Electing
Holder's Registrable Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting
arrangements and (c) at least 25% of the outstanding Registrable
Securities are included in such underwritten offering. The
Electing Holders participating in any underwritten offering shall
be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions
and fees and expenses of counsel to the selling securityholders
and shall reimburse the Company for the fees and disbursements of
their counsel, their independent public accountants and any
printing expenses incurred in connection with such underwritten
offerings. Notwithstanding the foregoing or the provisions of
Section 3(n) hereof, upon receipt of a request from the Managing
Underwriter or a representative of Electing Holders of a majority
of the Registrable Securities outstanding to prepare and file an
amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the
Company may delay the filing of any such amendment or supplement
for up to 90 days if the Company in good faith has a valid
business reason for such delay.
7. MISCELLANEOUS.
(a) Other Registration Rights. From the date of this
Agreement, the Company may grant registration rights that would
permit any Person that is a third party the right to piggy-back
on any Shelf Registration Statement, provided that if the
Managing Underwriter, if any, of such offering delivers an
opinion to the Electing Holders that the total amount of
securities which they and the holders of such piggy-back rights
intend to include in any Shelf Registration Statement is so large
as to materially adversely affect the success of such offering
(including the price at which such securities can be sold), then
only the amount, the number or kind of securities to be offered
for the account of holders of such piggy-back rights granted
after the date of this agreement will be reduced to the extent
necessary to reduce the total amount of securities to be included
in such offering to the amount, number or kind recommended by the
Managing Underwriter prior to any reduction in the amount of
Registrable Securities to be included.
(b) Amendments and Waivers. This Agreement, including
this Section 7(b), may be amended, and waivers or consents to
departures from the provisions hereof may be given, only upon the
written consent of the Purchasers or by a written instrument duly
executed by the Company and the holders of a majority in
aggregate principal amount of Registrable Securities then
outstanding. Each holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or
thereafter shall be bound by any amendment, waiver or consent
effected pursuant to this Section 7(b), whether or not any
notice, writing or marking indicating such amendment, waiver or
consent appears on the Registrable Securities or is delivered to
such holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be given as provided in
the Indenture.
(d) Parties in Interest. The parties to this Agreement
intend that all holders of Registrable Securities shall be
entitled to receive the benefits of this Agreement and that any
Electing Holder shall be bound by the terms and provisions of
this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration
Statement. All the terms and provisions of this Agreement shall
be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the
parties hereto and any holder from time to time of the
Registrable Securities to the aforesaid extent. 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 or action of any kind, be
entitled to receive the benefits of and, if an Electing Holder,
be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement to the
aforesaid extent.
(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by
and construed in accordance with the laws of the State of New
York.
(h) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the
rights and privileges of the parties shall be enforceable to the
fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in
this Agreement or made pursuant hereto shall remain in full force
and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Electing
Holder, any director, officer or partner of such holder, any
agent or underwriter, any director, officer or partner of such
agent or underwriter, or any controlling person of any of the
foregoing, and shall survive the transfer and registration of the
Registrable Securities of such holder.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
RITE AID CORPORATION
By /s/ Xxxxxx X. Xxxxxx
. . . . . . . . . . . . .
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
General Counsel
The foregoing Registration Rights Agreement is hereby confirmed
and accepted as of the date first above written:
Xxxxxxx Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Bear, Xxxxxxx & Co. Inc.
Salomon Brothers Inc
By: /s/ Xxxxxxx, Xxxxx & Co.
. . . . . . . . . . . . . . . . . . . . . .
(Xxxxxxx, Sachs & Co.)
Exhibit A
RITE AID CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a
DTC Participant through which beneficial interests in the Rite
Aid Corporation (the "Company") 5.25% Convertible Subordinated
Notes due September 15, 2002 (the "Securities") are held.
The Company is in the process of registering the Securities
under the Securities Act of 1933 for resale by the beneficial
owners thereof. In order to have their Securities included in
the registration statement, beneficial owners must complete and
return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It as important that beneficial owners of the Securities
receive a copy of the enclosed materials as soon as possible as
their rights to have the Securities included in the registration
statement depend upon their returning the Notice and
Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more
copies of the enclosed materials or have any questions pertaining
to this matter, please contact [Name, address and telephone
number of contact at the Company).
Rite Aid Corporation
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights
Agreement (the "Registration Rights Agreement") between Rite Aid
Corporation (the "Company") and the Purchasers named therein.
Pursuant to the Registration Rights Agreement, the Company has
filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the
"Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Company's 5.25% Convertible
Subordinated Notes due September 15, 2002 (the "Securities") and
the shares of Common Stock, par value $1.00 per share (the
"Common Stock"), issuable upon conversion thereof. A copy of the
Registration Rights Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined
below) is entitled to have the Registrable Securities
beneficially owned by it included in the Shelf Registration
Statement. In order to have Registrable Securities included in
the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the
Company's counsel at the address set forth herein for receipt ON
OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners of
Registrable Securities who do not complete, execute and return
this Notice and Questionnaire by such date (i) will not be named
as selling securityholders in the Shelf Registration Statement
and (ii) may not use the Prospectus forming a part thereof for
resales of Registrable Securities.
Certain legal consequences arise from being named as a
selling securityholder in the Shelf Registration Statement and
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 as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the
Registration Rights Agreement to mean all or any portion of the
Securities issued from time to time under the Indenture in
registered form and the shares of Common Stock issuable upon
conversion of such Securities, including any Securities initially
issued in bearer form and constituting the unsold allotment of a
distributor (within the meaning of Regulation S under the
Securities Act) of such Securities and later exchanged for
Securities in registered form; provided, however, that a security
ceases to be a Registrable Security when it is no longer a
Restricted Security.
The term "Restricted Security" is defined in the
Registration Rights Agreement to mean any Security or share of
Common Stock issuable upon conversion thereof except any such
Security or share of Common Stock which (i) has been effectively
registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act
(or any successor provision thereto) or is transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision
thereto), (ii) has been sold in compliance with Regulation S
under the Securities Act (or any successor thereto) and does not
constitute the unsold allotment of a distributor within the
meaning of Regulation S under the Securities Act, or (iv) has
otherwise been transferred and a new Security or share of Common
Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in
accordance with Section [ ] of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf
Registration Statement the Registrable Securities beneficially
owned by it and listed below in Item (3). The undersigned, by
signing and returning this Notice and Questionnaire, agrees to be
bound with respect to such Registrable Securities by the terms
and conditions of this Notice and Questionnaire and the
Registration Rights Agreement, including, without limitation,
Section 5 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the
Shelf Registration Statement, the Selling Securityholder will be
required to deliver to the Company and Trustee the Notice of
Transfer set forth in Appendix A to the Prospectus. This Notice
of Transfer is set forth as Exhibit A to the Prospectus.
The Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such
information is accurate and complete. The Selling Securityholder
also agrees, severally and not jointly, with respect to the
information so provided, to indemnify and hold harmless the
Company, the Purchasers, each underwriter who participates in the
offering and the other Selling Securityholders and each of their
respective directors, officers (including each officer of the
Company who signed the Shelf Registration Statement), employees,
trustees and agents and each Person, if any, who controls the
Company, the Purchasers, any underwriter or any other Selling
Securityholders within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and
against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 5(a)
of the Registration Rights Agreement, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the
written information furnished below to the Company by such
Selling Securityholder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto); provided,
however, that such Selling Securityholder shall not be liable for
any claims hereunder in excess of the amount of net proceeds
received by such Selling Securityholder from the sale of
Registrable Securities pursuant to the Shelf Registration
Statement.
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the
same as in (a) above) of Registrable Securities
Listed in (3) below:
(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 Securities and shares of Common
Stock issued upon conversion of Securities:
Except as set forth below in this Item (3), the undersigned
does not beneficially own any Securities or shares of Common
Stock issued upon conversion of any Securities.
(a) Principal amount of Registrable Securities (as
defined in the Registration Rights Agreement)
beneficially owned:
CUSIP No(s). of such Registrable Securities:
Number of shares of Common Stock (if any) issued upon
conversion of such Registrable Securities:
(b) Principal amount of Securities other than
Registrable Securities beneficially owned:
CUSIP No(s). of such other Securities:
Number of shares of Common Stock (if any) issued upon
conversion of such other Securities:
(c) Principal amount of Registrable Securities which
the undersigned wishes to be included in the Shelf
Registration Statement:
CUSIP No(s). of such Registrable Securities to be
included in the Shelf Registration Statement:
Number of shares of Common Stock (if any) issued upon
conversion of Registrable Securities which are to be
included in the Shelf Registration Statement:
(4) Beneficial ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned
Selling Securityholder is not the beneficial or registered owner
of any shares of Common Stock or any other securities of the
Company, other than the Securities and shares of Common Stock
listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling
Securityholder 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 its predecessors or affiliates) during the past three
years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling
Securityholder intends to distribute the Registrable Securities
listed above in Item (3) only as follows (if at all): Such
Registrable Securities may be sold from time to time directly by
the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. 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 crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
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 the Registrable Securities or otherwise, the Selling
Securityholder may enter into hedging transactions with broker-
dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions
they assume. The Selling Securityholder may also sell
Registrable Securities short 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 may such method(s) of distribution take
the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company.
By signing below, the Selling Securityholder acknowledges
that it understands its obligation to comply, and agrees that it
will comply, with the provisions of the Exchange Act and the
rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all
or any portion of the Registrable Securities listed in Item (3)
above after the date on which such information is provided to the
Company, the Selling Securityholder agrees to notify the
transferees at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the
Registration Rights Agreement.
By signing below, the Selling Securityholder 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 related Prospectus. The
Selling Securityholder understands that such information will be
relied upon by the Company in connection with the preparation of
the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation
under Section 3(a) of the Registration Rights Agreement to
provide such information as may be required by law for inclusion
in the Shelf Registration Statement, the Selling Securityholder
agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf
Registration Statement remains in effect. All notices hereunder
and pursuant to the Registration Rights Agreement shall be made
in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
Rite Aid Corporation
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
(ii) With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Once this Notice and Questionnaire is executed by the
Selling Securityholder and received by the Company's counsel, the
terms of this Notice and Questionnaire, and the representations
and warranties contained herein, shall be binding on, shall inure
to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the
Registrable Securities beneficially owned by such Selling
Securityholder and listed in Item (3) above. This Agreement
shall be governed in all respects by the laws of the State of New
York.
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:
Selling Securityholder
(Print/type full legal name of
beneficial owner of
Registrable Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR
RESPONSE] TO THE COMPANY'S COUNSEL AT:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Xxxxxx Trust and Savings Bank
Rite Aid Corporation
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services
Re: Rite Aid Corporation (the "Company")
5.25% Convertible Subordinated Notes due
September 15, 2002 (the"Notes")
Dear Sirs:
Please be advised that_____________________ has
transferred $____________ aggregate principal amount of the
above-referenced Notes pursuant to an effective Registration
Statement on Form S-3 (File No. 333-____) filed by the
Company.
We hereby certify that the prospectus delivery
requirements, if any, of the Securities Act of 1933, as
amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder"
in the Prospectus dated _____________ 1996 or in supplements
thereto, and that the aggregate principal amount of the
Notes transferred are the Notes listed in such Prospectus
opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
(Authorized Signature)
