Exhibit 9
This RIGHT OF FIRST REFUSAL between LIMITED DIRECT ASSOCIATES, L.P. (the
"Stockholder") and UNITED RETAIL GROUP, INC. (the "Corporation"), dated
September 17, 1999.
WHEREAS, the Stockholder holds shares of Common Stock, $.001 par value per
share ("Shares"), of the Corporation;
WHEREAS, the Shares are traded on the NASDAQ National Market System
("NASDAQ"); and
WHEREAS, from time to time the Stockholder may desire to sell Shares and
the Corporation may desire to repurchase Shares.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. Fee. The Corporation paid the Stockholder $1,000, receipt of
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which is hereby acknowledged, in consideration of the issuance and delivery of
this Right of First Refusal.
SECTION 2. Rights of First Refusal. (a) Subject to the provisions of
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Section 2(b) and 2(c), if the Stockholder wishes to sell or otherwise transfer
any or all of the Shares then owned by it, it shall first give notice (the
"Transfer Notice") to the Corporation specifying the number of Shares it wishes
to transfer (the "Transfer Shares"), the identity of the proposed transferee,
the proposed consideration per Share to be received (which proposed
consideration shall be deemed to be the "Transfer Price", except as otherwise
provided in Section 2(b), and except that if all or any part of the proposed
consideration to be received is not cash, the corresponding portion of the
Transfer Price shall be the amount of cash equal to the fair value of such non-
cash consideration), and any other material terms and conditions of the proposed
transfer, and containing an irrevocable offer (open to acceptance for a period
of three business days after the date such Transfer Notice is given) to sell any
or all of the Transfer Shares to the Corporation at the Transfer Price.
(b) Anything in Section 2(a) to the contrary notwithstanding, if the
Stockholder wishes to transfer shares in transactions to be executed on NASDAQ,
the Transfer Notice shall so state and shall specify the number of Shares the
Stockholder wishes to sell on NASDAQ and the closing price for Shares on NASDAQ
on the day the Transfer Notice is given (which closing price shall be deemed to
be the "Transfer Price"), and the Transfer Notice need not contain any other
information, and such Transfer Notice shall constitute an irrevocable offer
(open to acceptance until 9:15 a.m. Eastern Time on the business day following
the date such Transfer Notice is given) to sell any or all of the Transfer
Shares to the Corporation at the Transfer Price.
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(c) Anything in Section 2(a) and 2(b) to the contrary notwithstanding, the
Stockholder shall have the unconditional right at any time to donate Shares to
operating charities and charitable foundations, and to transfer Shares to any
affiliate of the Stockholder, and such donations and transfers shall not be
subject to the terms and provisions of this Right of First Refusal, provided
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that in the case of a transfer to an affiliate, such affiliate shall be bound by
this Right of First Refusal.
(d) The number of Transfer Shares shall in no event be less than 25,000
Shares, unless the Stockholder holds fewer than 25,000 Shares, in which event
the Transfer Notice must be for all Shares owned by the Stockholder.
(e) The Corporation shall have the right to purchase any or all of the
Transfer Shares; provided that the Corporation must determine the number of the
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Transfer Shares it will purchase and evidence its irrevocable acceptance of the
offer and its agreement to purchase such Transfer Shares by delivering to the
Stockholder, prior to the expiration of the period during which the offer
remains open for acceptance pursuant to Section 2(a) or 2(b), notice (the
"Notice of Acceptance") of the number of Transfer Shares the Corporation has
elected to purchase.
(f) The closing of the purchase by the Corporation of any Transfer Shares
that it elects to purchase shall be effected in accordance with the same
procedures that would apply to a trade on NASDAQ, including as to timing of
settlement (T+3) and form of payment (immediately available funds), through such
broker as the Stockholder may designate by notice to the Corporation from time
to time. In the event that either the Stockholder shall default in the delivery
of the Transfer Shares or the Corporation shall default in the delivery of
funds, the other party and its broker shall be entitled to the same rights and
remedies as would be available to such party if such failure occurred in
connection with a sale on NASDAQ. The Corporation hereby acknowledges that
certain certificates representing Shares are legended and waives any default by
the Stockholder resulting from the existence of such legends.
(g) If, at the expiration of the period during which the offer remains
open for acceptance pursuant to Section 2(a) or 2(b), the Corporation has either
not delivered a Notice of Acceptance of the offer contained in a Transfer Notice
or has delivered a Notice of Acceptance with respect to fewer than all of the
Transfer Shares, then the Stockholder shall have 90 days in which to sell any or
all of the Transfer Shares not accepted for purchase by the Corporation at a
price not lower than the Transfer Price, unless such Transfer Shares are sold on
NASDAQ, in which case at whatever price is obtainable on NASDAQ. If, at the end
of such 90-day period, the Stockholder has not completed the transfer of all of
such Transfer Shares, it shall no longer be permitted to transfer any such
Transfer Shares without again complying with this Right of First Refusal in its
entirety.
(h) If the Stockholder determines at any time within such 90-day period
that it is impractical to sell all or any part of such Transfer Shares in
accordance with Section 2(g), it may terminate all attempts to sell such
Transfer Shares and recommence the procedures of this Right
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of First Refusal in their entirety without waiting for
the expiration of such 90-day period by delivering written notice of such
decision to the Corporation.
SECTION 3. Severability; Governing Law. If any provision of this Right of
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First Refusal shall be determined to be illegal and unenforceable by any court
of law, the remaining provisions shall be severable and enforceable in
accordance with their terms. This Right of First Refusal shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 4. Benefits of Agreement. This Agreement shall be binding upon
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and inure to the benefit of the parties and their respective successors and
assigns.
SECTION 5. Notices. All notices and communications to be given or to
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otherwise be made to any party shall be effective upon delivery if contained in
a written instrument delivered by fax, e-mail, in person or by a recognized
national courier service, charges prepaid, addressed to:
(a) If to the Corporation:
United Retail Group, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Administrative Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
with a copy to:
United Retail Group, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Attention: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxxxxxx.xxx
(b) If to the Stockholder:
Limited Direct Associates, L.P.
c/o The Limited, Inc.
Three Limited Parkway
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Vice Chairman
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Telephone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
with a copy to:
The Limited, Inc.
Three Limited Parkway
Attention: Xxxxxxx Xxxxxxxx
Treasurer
Xxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxxx.xxx
provided that Transfer Notices with respect to proposed sales on NASDAQ and
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Notices of Acceptance in response to such Transfer Notices shall be delivered by
fax and e-mail.
SECTION 6. Modification; Amendment. Except as otherwise provided herein,
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neither this Right of First Refusal nor any provision hereof can be modified,
changed, discharged or terminated except by an instrument in writing signed by
the party to be bound.
SECTION 7. Disclosure; Public Announcements. None of the parties hereto
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shall furnish copies of, disclose the terms or existence of or make any public
announcement regarding this Right of First Refusal without first identifying the
persons to which such copies are proposed to be furnished and delivering the
text of any such proposed disclosure or public announcement to the other parties
hereto and receiving the prior written consent of such other parties to such
furnishing, disclosure or public announcement, which consent shall not be
unreasonably withheld or delayed.
SECTION 8. Term. Unless extended by written consent of each party hereto,
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this Right of First Refusal shall expire on September 17, 2000.
SECTION 9 Captions and References to Sections. The captions herein are
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inserted for convenience only and shall not define, limit, extend or describe
the scope of this Right of First Refusal or affect the construction hereof.
SECTION 10. Entire Agreement. This Right of First Refusal sets forth the
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entire understanding of the parties with respect to the subject matter hereof.
There are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the
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subject matter hereof other than those expressly set forth herein. This Right
of First Refusal supersedes all prior agreements and understandings between the
parties with respect to its subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Right of First
Refusal on the date first above written.
LIMITED DIRECT ASSOCIATES, L.P.
By: LIMITED DIRECT, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Treasurer
UNITED RETAIL GROUP, INC.
By: /s/ X. X. Xxxxxx
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Vice Chairman and
Chief Administrative Officer
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