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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of November 1,
1996, by and among Dominick's Supermarkets, Inc., a Delaware corporation (the
"Company"), and each other person executing this Agreement (the "Investors").
WHEREAS, the Company and Dominick's Finer Foods, Inc. ("Dominick's") and
The Yucaipa Companies are parties to a Consulting Agreement dated as of March
22, 1995 which the Company and Dominick's intend to terminate concurrently with
the consummation of an initial public offering of the common stock of the
Company;
WHEREAS, the Company, in order to induce The Yucaipa Companies to enter
into a new management agreement upon termination of such Consulting Agreement,
desires to grant to certain affiliates of The Yucaipa Companies the
registration rights provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of the parties hereto and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, 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 Amended and Restated
Stockholders Agreement (the "Stockholders Agreement"), dated as of the date
hereof, among the Company, 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).
"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.
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"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 Holders.
"Selling Holder" means a Holder who sells or proposes to sell Registrable
Securities pursuant to a registration statement under the Securities Act.
"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 after the date hereof, the
Holders 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 Holders; provided,
that the Company shall in no event be obligated to effect more than two Demand
Registrations in any 12-month period. 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 any
Holder, which request complies with this Section 2.1(a), within 10 days after
the receipt thereof, to each other Holder who did not initially join in such
request. Within 20 days after receipt of such notice, any such other Holder
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 Holder requested to be so included,
subject to the provisions of Section 2.4. Each such request shall specify the
number of shares of Registrable Securities proposed to be sold and the intended
method of disposition thereof.
(a) 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 Selling 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.
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
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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), 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 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).
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SECTION 2.3 SHELF REGISTRATION. (a) At any time prior to March 22,
1998, but not more than once, upon the written request of one or more Yucaipa
Affiliates, the Company shall cause to be filed with the Commission as promptly
as practicable after such request, but in no event later than 60 days
thereafter, a shelf registration statement pursuant to Rule 415 under the
Securities Act (a "Shelf Registration" or a "Shelf Registration Statement"),
which Shelf Registration Statement shall provide for resales of all Registrable
Securities held by such Yucaipa Affiliate(s). The Company shall use its best
efforts to have such Shelf Registration declared effective and to keep such
Shelf Registration Statement continuously effective, supplemented and amended
to the extent necessary to ensure that it is available for resales of
Registrable Securities by such Yucaipa Affiliate(s), and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of at least 12 months following the date on which such Shelf
Registration Statement becomes effective under the Securities Act.
(b) Effective Registration. A registration will not be deemed to have
been effected as a Shelf 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 omission of the Holders) such registration will be deemed not to
have been effected. If (i) the Shelf Registration is deemed not to have been
effected in accordance with the provisions of the preceding sentence or (ii)
the Shelf Registration does not remain continuously effective for the period
described in Section 2.3(a) hereof, then such Shelf Registration Statement
shall not count as a Shelf Registration and the Company shall continue to be
obligated to a effect a registration pursuant to this Section 2.3.
SECTION 2.4 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 (other than
such other holders exercising contractual piggy-back rights pursuant to the
Registration Rights Agreement dated as of March 22, 1995 among the Company and
the stockholders named therein (the "1995 Registration Rights Agreement")) 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 and such other holders exercising
contractual piggy-back rights pursuant to the 1995 Registration Rights Agreement
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 and such
other holders exercising contractual piggy-back rights pursuant to the 1995
Registration Rights Agreement shall be reduced pro
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rata in proportion to the respective number of Shares requested to
be registered by the Demanding Holders and such other 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 2.4(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.
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 or Section 2.3 hereof, 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 hereof if the Company reasonably determines that
such a filing would adversely affect any proposed financing or
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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
24-month period. If the Company postpones the filing of a registration
statement, it shall promptly notify each Selling Holder 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 the period specified in
Section 2.1, Section 2.2 or Section 2.3 hereof, as applicable, 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 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
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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.
(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
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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 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.
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(n) Prior to the effective date of the first Demand Registration, the
first Piggy-Back Registration or the Shelf 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.
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, any registration statement filed
pursuant to Section 2.2 hereof and the Shelf Registration pursuant to Section
2.3 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
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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 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,
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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 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
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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 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
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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 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
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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 part 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 part 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 (other than the
Investors selling pursuant to any registration statement hereunder) 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 such 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 hereof
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 and (b) the holders of a majority
of the Registrable Securities held by the Investors. 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)
Yucaipa 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.
(a) 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.
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(c) In the event that the Company's performance of its obligations under
this Agreement would cause the Company to violate or fail to fulfill any of its
obligations under the 1995 Registration Rights Agreement, as in effect on the
date hereof, then the Company shall be entitled to perform its obligations
under the 1995 Registration Rights Agreement prior to performing its
obligations hereunder.
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 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To the Investors:
To the address specified on the signature page hereto
executed by such Investor.
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.
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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.
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) November 1, 2011.
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.
(signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DOMINICK'S SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
YUCAIPA BLACKHAWK PARTNERS, L.P.
By: Yucaipa Management L.L.C., its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
YUCAIPA CHICAGO PARTNERS, L.P.
By: Yucaipa Management L.L.C., its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
YUCAIPA DOMINICK'S PARTNERS, L.P.
By: Yucaipa Management L.L.C., its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
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