EXHIBIT 4.4
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated as of March 16,
1998, among Wal-Mart Stores, Inc., a Delaware corporation
("the Company"), Xxxxxx Enterprises, L.P., a Delaware
limited partnership (the "Partnership") and the individuals
and entities named in Schedule I hereto (collectively, the
"Partners" and individually, a "Partner").
WHEREAS, this Agreement is made in connection with an offer (the
"Partnership Offer") by the Partnership to redeem from each Partner a
portion of its ownership interest in the Partnership in exchange for a
certain number of unregistered shares of the Company's common stock, par
value $.10 per share (the "Common Stock"), held by the Partnership;
WHEREAS, it is a precondition of the Partnership Offer that this
Agreement be executed by the Company and the Partnership prior to the
completion of the Partnership Offer; and
WHEREAS, it is a precondition to any Partner exercising its
rights under this Agreement that such Partner execute this Agreement.
At the request of the Partnership and in order to facilitate the
orderly distribution of the Common Stock to be received by the Partners
pursuant to the Partnership Offer, the Company has agreed to execute and
deliver this Agreement and provide for the one-time opportunity for
registration of such Common Stock to be received by the Partners.
Accordingly, it is hereby agreed as follows:
1. Definitions. For purposes of this Agreement the following
terms shall have the following meanings:
"Effective Date" means the date on which the SEC declares the
Registration Statement effective.
"Effective Period" means a period commencing on the Effective
Date and ending on the earlier of (i) the first date as of which all
Registrable Securities cease to be Registrable Securities and (ii) the date
two years from the Effective Date.
"Holder" means a holder of Registrable Securities.
"Partnership Offer Closing Date" means the date on which the
closing of the Partnership Offer occurs.
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"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Prospectus" means the prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Registrable Securities" means, collectively, (i) those shares of
Common Stock received by the Partners from the Partnership in connection
with the Partnership Offer which the Partners indicate (in the Partnership
Offer materials returned by them to the Partnership) should be included in
the number of shares registered by the Company in the Registration
Statement (such securities being referred to collectively herein as the
"Shares") and (ii) any securities issued or distributed in respect of any
Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise. It is understood and agreed that the number of
Shares included pursuant to item (i) above shall not exceed 25,000,000.
"Registration Expenses" means any and all out-of- pocket expenses
incurred by the Company incident to the drafting or performance of, or
compliance with, this Agreement, including, without limitation, (i) all SEC
and securities exchange registration and filing fees, (ii) all fees and
expenses of complying with securities or blue sky laws (including fees and
disbursements of counsel for any underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to Section 7(h), (v) the fees and disbursements of
counsel for the Company (including any fees or disbursements of counsel in
connection with any amendments or supplements to this Agreement or in the
performance hereof) and of its independent public accountants, and (vi) any
fees and disbursements of underwriters customarily paid by the issuers or
sellers of securities, and the reasonable fees and expenses of any special
experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if
any.
"Registration Statement" means any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to
such registration statement, including post-effective amendments, and all
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exhibits and all material incorporated by reference in such Registration
Statement.
"Related Securities" means any securities of the Company similar
or identical to any of the Registrable Securities.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Underwritten Registration or Underwritten Offering" shall mean a
registration of securities under the Securities Act and applicable blue sky
laws in which the securities of the Company are sold to an underwriter for
reoffering to the public.
2. Securities Subject to this Agreement. The securities
entitled to the benefits of this Agreement are the Registrable Securities.
For the purposes of this Agreement, Registrable Securities will cease to be
Registrable Securities when (i) a Registration Statement covering such
Registrable Securities has been declared effective under the Securities Act
and they have been disposed of pursuant to such effective Registration
Statement, (ii) such Registrable Securities are distributed to the public
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, (iii) such Registrable Securities shall have been otherwise
transferred, new certificates for such Registrable Securities not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such Registrable Securities shall not
require registration or qualification of such Registrable Securities under
the Securities Act or any state securities or blue sky law then in force,
(iv) twenty-four (24) months following the Effective Date have elapsed or
(v) such Registrable Securities shall have ceased to be outstanding.
3. Shelf Registration. As promptly as practicable after the
Partnership Offer Closing Date, the Company shall file and cause to be
declared effective one "shelf" Registration Statement on any appropriate
form pursuant to Rule 415 (or similar rule that may be adopted by the SEC)
under the Securities Act for all the Registrable Securities, which form
shall be available for the sale of the Registrable Securities in accordance
with the intended method or methods of distribution thereof. The Company
agrees to use its reasonable best efforts to keep such Registration
Statement continuously effective and usable for resale of Registrable
Securities, for a period of twenty-four (24) months from the Effective Date
or such shorter period which will terminate when all the Registrable
Securities covered by such Registration Statement cease to be Registrable
Securities; provided, however, that the Company may elect that such
Registration Statement not be
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filed, permitted to be declared effective or usable during any Blackout
Period (as defined in Section 4).
4. Blackout Period. The Company shall be entitled (i) to
postpone the filing of the Registration Statement otherwise required to be
prepared and filed by the Company pursuant to Section 3, or (ii) from time
to time to elect that the Registration Statement not be useable, for a
reasonable period of time, but not in excess of 90 days (a "Blackout
Period"), if (x) the Company determines in good faith that the registration
and distribution of Registrable Securities (or the use of the Registration
Statement or related Prospectus) would interfere with, or would require
premature disclosure of, any pending financing, acquisition, corporate
reorganization or any other corporate development (including the disclosure
of material non-public information) involving the Company or any of its
subsidiaries, or otherwise results in a violation of applicable securities
laws, and (y) promptly gives the Holders of Registrable Securities written
notice of such determination, containing a general statement of the reasons
for such postponement or restriction on use and an approximation of the
anticipated delay.
5. Selection of Underwriters. If any offering pursuant to the
Registration Statement is an Underwritten Offering, the Company will select
a managing underwriter or underwriters to administer the offering, which
managing underwriter or underwriters shall be reasonably satisfactory to
the Holders of a majority in number of the Registrable Securities to be
included in such Registration Statement; provided, however, that the
Holders of a majority in number of the Registrable Securities to be
included in such offering shall be entitled to select one co-managing
underwriter, which co-managing underwriter shall be reasonably satisfactory
to the Company. The managing underwriter or underwriters selected by the
Company shall be deemed to be reasonably satisfactory to the Holders of a
majority in number of the Registrable Securities to be registered unless
the Partnership, at the request of the Holders of a majority in number of
such Registrable Securities, sends a written notice of objection to the
Company within 10 days of receipt of notice from the Company of the
appointment of a managing underwriter or underwriters. Such notice shall
state the reasons for the Holders' objection to the managing underwriter or
underwriters.
6. Holdback Agreement. If (i) after the Partnership Offer
Closing Date and prior to the expiration of the Effective Period, the
Company shall file a registration statement (other than in connection with
the registration of securities issuable pursuant to an employee stock
option, stock purchase or similar plan or pursuant to a merger, exchange
offer or a transaction of the type specified in Rule 145(a) under the
Securities Act) with respect to its Common Stock or Related Securities and
(ii) with reasonable prior notice, the Company (in the case of a
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non-Underwritten Offering by the Company pursuant to such registration
statement) advises the Partnership (which shall in turn promptly notify the
Holders) in a writing addressed to the Holders that a public sale or
distribution of Registrable Securities would adversely affect such offering
or the managing underwriter or underwriters (in the case of an Underwritten
Offering by the Company pursuant to such registration statement) advises
the Company in writing (in which case the Company shall notify the
Partnership which shall in turn promptly notify the Holders) that a public
sale or distribution of Registrable Securities would adversely impact such
offering, then each Holder of Registrable Securities shall, to the extent
not inconsistent with applicable law, refrain from effecting any public
sale or distribution of Registrable Securities during the seven-day period
prior to, and during the 30-day period beginning on, the effective date of
such registration statement.
7. Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as
provided in this Agreement, the Company will, as promptly as practicable:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities 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 in accordance with the intended methods of
distribution thereof, and use its reasonable best efforts to cause
such Registration Statement to become and remain effective;
(b) prepare and file with the SEC amendments and post-effective
amendments to such Registration Statement and such amendments and
supplements to the Prospectus used in connection therewith as may be
necessary to maintain the effectiveness of such registration or as may
be required by the rules, regulations or instructions applicable to
the registration form utilized by the Company or by the Securities Act
or rules and regulations thereunder for shelf registration or
otherwise necessary to keep the Registration Statement effective
during the Effective Period and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to otherwise comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the Effective Period; provided, that
before filing a Registration Statement or Prospectus, or any
amendments or supplements thereto (other than reports required to be
filed by it under the Securities and Xxxxxxxx Xxx 0000, as amended,
and the rules and regulations adopted by the Commission thereunder),
the Company will furnish to the Partnership on behalf of
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the Holders and their counsel for review and comment, copies of all
documents proposed to be filed;
(c) furnish to each Holder of such Registrable Securities such
number of copies of such Registration Statement and of each amendment
and post-effective amendment thereto (in each case including all
exhibits), the Prospectus and Prospectus supplement, as applicable,
and such other documents as such Holder may reasonably request in
order to facilitate the disposition of the Registrable Securities by
such Holder (the Company hereby consenting to the use (subject to the
limitations set forth in the last paragraph of this Section 7) of the
Prospectus or any amendment or supplement thereto in connection with
such disposition);
(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such Registration Statement under
such other securities or blue sky laws of each jurisdiction in the
United States as counsel to the Company shall advise or as each Holder
shall reasonably request if an exemption from the registration or
qualification requirements under such laws is not available for the
disposition of Registrable Securities, and do any and all other acts
and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Holder, except that the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for
the requirements of this Section 7(d), it would not be obligated to be
so qualified, to subject itself to taxation in any such jurisdiction,
or to consent to general service of process in any such jurisdiction;
(e) notify the Partnership (which shall in turn promptly notify
each Holder) of any such Registrable Securities covered by such
Registration Statement, at any time when a Prospectus relating thereto
is required to be delivered under the Securities Act within the
Effective Period, of the Company's becoming aware that the Prospectus
included in such Registration Statement, as then in effect, may
include an untrue statement of a material fact or may omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and at the request of any such Holder, prepare and furnish
to such Holder a reasonable number of copies of an amendment or
supplement to the Registration Statement or related Prospectus as may
be necessary so that, as thereafter delivered to the purchasers of
such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or
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necessary to make the statements therein not misleading in light of
the circumstances then existing;
(f) notify the Partnership (which shall in turn promptly notify
each Holder) of Registrable Securities covered by such Registration
Statement at any time,
(1) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the
same has become effective,
(2) of any request by the SEC for amendments or supplements
to the Registration Statement or the Prospectus or for additional
information,
(3) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, and
(4) if at any time the representations and warranties of
the Company contemplated by paragraph (i)(1) below cease to be
true and correct;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the Registration
Statement, an earnings statement which shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(h) use reasonable efforts to cause all such Registrable
Securities to be listed on any securities exchange on which the Common
Stock is then listed, if such Registrable Securities are not already
so listed and if such listing is then permitted under the rules of
such exchange, and to provide a transfer agent and registrar for such
Registrable Securities covered by such Registration Statement no later
than the Effective Date;
(i) enter into agreements (including underwriting agreements) and
take all other reasonable actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection,
whether or not an underwriting agreement is entered into and whether
or not the registration is an Underwritten Registration:
(1) make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, if any, in
form, substance and
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scope as are customarily made by issuers to underwriters in
comparable underwritten offerings;
(2) 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, and the Holders of a majority in number of
the Registrable Securities being sold) addressed to each Holder
and the underwriters, if any, covering the matters customarily
covered in opinions requested in comparable underwritten
offerings and such other matters as may be reasonably requested
by such Holders and underwriters;
(3) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed
to the selling Holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with comparable
underwritten offerings;
(4) if requested, provide the indemnification in accordance
with the provisions and procedures of Section 9 hereof to all
parties to be indemnified pursuant to said Section; and
(5) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority of the
Registrable Securities being sold and the managing underwriters,
if any, to evidence compliance with clause (f) above and with any
customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
The matters set forth in this Section 7(i) shall be effected at each
closing under any underwriting or similar agreement as and to the
extent required thereunder.
(j) cooperate with the Holders of Registrable Securities covered
by such Registration Statement and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends)
representing the securities to be sold under such Registration
Statement, and enable such securities to be in such denominations and
registered in such names as the managing underwriter or underwriters,
if any, or such Holders may request;
(k) if requested by the managing underwriter or underwriters or
a Holder of Registrable Securities being sold in connection with an
Underwritten Offering,
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immediately incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the
Holders of majority in number of the Registrable Securities being sold
agree should be included therein relating to the plan of distribution
with respect to such Registrable Securities, including, without
limitation, information with respect to the principal amount of
Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and any other terms of
the Underwritten Offering of the Registrable Securities to be sold in
such offering and make all required filings of such Prospectus
supplement or post-effective amendment as promptly as practicable upon
being notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(l) make available for inspection by any Holder of Registrable
Securities included in such Registration Statement, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by any
such Holder or underwriter (collectively, the "Inspectors"), all
financial and other records and other information, pertinent corporate
documents and properties of any of the Company and its subsidiaries
and affiliates (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility; provided, however, that the Records that the Company
determines, in good faith, to be confidential and which it notifies
the Inspectors in writing are confidential shall not be disclosed to
any Inspector unless such Inspector signs a confidentiality agreement
reasonably satisfactory to the Company or either (i) the disclosure of
such Records is necessary to avoid or correct a misstatement or
omission in such Registration Statement or (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction; provided further, however, that any
decision regarding the disclosure of information pursuant to subclause
(i) shall be made only after consultation with counsel for the
applicable Inspectors. Each Holder of Registrable Securities agrees
that it will, promptly after learning that disclosure of such Records
is sought in a court having jurisdiction, give notice to the Company
and allow the Company, at the Partnership's expense (provided such
expenses are reasonable and documented), to undertake appropriate
action to prevent disclosure of such Records; and
(m) use reasonable efforts to assist the Holders to do any acts
which may be reasonably necessary or advisable to enable the Holders
to consummate the disposition of its Registrable Securities pursuant
to the Registration Statement and which acts shall not
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cause the Company to incur any undue expense or liability.
The Company may require each Holder of Registrable Securities as
to which any registration is being or has been effected to furnish, and
such Holder shall furnish, to the Company such information regarding such
Holder, such Holder's plan of distribution of the Registrable Securities
and such other information pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing. If the Holder
of Registrable Securities has furnished any such information and the
information furnished becomes inaccurate or incomplete, the Holder agrees
to provide to the Company such additional information necessary to correct
any such inaccurate information or to complete any such incomplete
information promptly after the Holder becomes aware of such inaccuracy or
incompleteness.
Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 7(e), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Prospectus or
Registration Statement covering such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 7(e), and, if so directed by the Company, such
Holder will deliver to the Company all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In
the event the Company shall give any such notice, the Effective Period
shall be extended by the number of days during the period from the date of
the giving of such notice pursuant to Section 7(e) and through the date
when each seller of Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 7(e).
8. Registration Expenses. The Partnership will pay promptly all
Registration Expenses in connection with the registration of Registrable
Securities pursuant to Section 3 upon the written request of any of the
Holders or the Company, and each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale
or disposition of such Holder's Registrable Securities pursuant to the
Registration Statement.
9. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify each
Holder of Registrable Securities, its officers and directors and each
Person who controls such Holder (within the meaning of the Securities Act),
and any agent thereof against all losses, claims, damages, liabilities and
expenses (including reasonable attorneys'
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fees and expenses of investigation) incurred by such party pursuant to any
actual or threatened action, suit, proceeding or investigation arising out
of or based upon (i) any untrue or alleged untrue statement of material
fact contained in the Registration Statement, any Prospectus or preliminary
Prospectus, or any amendment or supplement to any of the foregoing or (ii)
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 in each case insofar as the same arise out of or are
based upon, any such untrue statement or omission made in reliance on and
in conformity with information with respect to such indemnified party (or
Holder with respect to which such indemnified party is an officer or
director or Person who controls such Holder within the meaning of the
Securities Act, or agent thereof) furnished in writing to the Company by
such indemnified party (or Holder with respect to which such indemnified
party is an officer or director or Person who controls such Holder within
the meaning of the Securities Act, or agent thereof) or its counsel
expressly for use therein. In connection with an Underwritten Offering, the
Company will indemnify the underwriters thereof, their officers and
directors and each Person who controls such underwriters (within the
meaning of the Securities Act) up to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities.
Notwithstanding the foregoing provisions of this Section 9(a), the Company
will not be liable to any Holder of Registrable Securities, any Person who
participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such Holder or
underwriter (within the meaning of the Securities Act), under the indemnity
agreement in this Section 9(a) for any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense that arises out of
such Holder's or other Person's failure to send or give a copy of the final
Prospectus to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of the Registrable Securities to such Person if
such statement or omission was corrected in such final Prospectus and the
Company has previously furnished copies thereof in accordance with this
Agreement.
(b) Indemnification by Holders of Registrable Securities. In
connection with the Registration Statement, each Holder will furnish to the
Company in writing such information, including with respect to the name,
address and the amount of Registrable Securities held by such Holder, as
the Company reasonably requests for use in such Registration Statement or
the related Prospectus and agrees to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 9(a)) the
Company, all other prospective Holders or any underwriter, as the case may
be, and any of their respective affiliates, directors, officers and
controlling Persons (within the meaning of the Securities Act) against any
losses, claims, damages,
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liabilities and expenses resulting from any untrue or alleged untrue
statement of a material fact or any omission or alleged omission of a
material fact required to be stated in such Registration Statement or
Prospectus or any amendment or supplement to either of them or necessary to
make the statements therein not misleading, but only to the extent that any
such untrue statement or omission is made in reliance on and in conformity
with information with respect to such Holder furnished in writing to the
Company by such Holder or its counsel specifically for inclusion therein.
(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified
party may claim indemnification or contribution pursuant to this Agreement
(provided that failure to give such notification shall not affect the
obligations of the indemnifying person pursuant to this Section 9 except to
the extent the indemnifying party shall have been actually prejudiced as a
result of such failure). In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party (such consent not to
be unreasonably withheld), be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under these indemnification provisions
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation, unless an
indemnified party has received an opinion of counsel that a conflict of
interest is likely to exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable and documented
fees and expenses of such additional counsel or counsels. Except to the
extent set forth in the preceding sentence with respect to conflicts of
interests between indemnified parties, an indemnifying party shall not be
liable for the fees and expenses of more than one counsel (in addition to
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or related actions in the same
jurisdiction arising out of the same allegations or circumstances. The
indemnifying party will not be subject to any liability for any settlement
made without its express written consent (which will not be unreasonably
withheld).
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(d) Contribution. If the indemnification from the indemnifying
party provided for in this Section 9 is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party, shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages, liabilities or expenses (or actions
in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties 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 such Holder or such other indemnified person, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Section 9(c),
any reasonable and documented legal and other fees and expenses reasonably
incurred by such indemnified party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9(d), no Holder
of Registrable Securities shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such Holder were offered to the public (net of all
underwriting discounts and commissions) exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such
untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 9(a) or (b), as the case may be, without regard
to the relative fault of said indemnifying parties or indemnified party or
any other equitable consideration provided for in this Section 9(d).
(e) The provisions of this Section 9 shall be in addition to any
liability which any party may have to any
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other party and shall survive any termination of this Agreement.
10. Participation in Underwritten Registrations. No Holder of
Registrable Securities may participate in any Underwritten Offering of
Registrable Securities hereunder unless such Holder (a) agrees to sell such
Holder's securities to be sold in such offering on the basis provided in
any underwriting arrangements approved by the Company in its reasonable
discretion and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
11. Rule 144. For a period of two years following the
Partnership Offer Closing Date, the Company covenants that it will file the
reports required to be filed by it under the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
adopted by the Commission thereunder (or, if the Company is not required to
file such reports, it will, upon the request of any Holder of Registrable
Securities, make publicly available other information so long as necessary
to permit sales under Rule 144 under the Securities Act), and it will take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under
the Securities Act, as such Rule 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 of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
12. Miscellaneous. (a) Remedies. Each Holder of Registrable
Securities in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has agreed thereto and the
Company has obtained the written consent of Holders of at least a majority
in number of the Registrable Securities then outstanding.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopier,
registered or certified mail (return receipt requested), postage prepaid,
or courier guaranteeing next day delivery to the parties at the following
addresses (or at such other
15
address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt
thereof). Notices delivered personally shall be effective upon receipt,
notices sent by mail shall be effective three days after mailing, notices
sent by telex shall be effective when answered back, notices sent by
telecopier shall be effective when receipt is acknowledged in writing or by
telephone, and notices sent by courier guaranteeing next day delivery shall
be effective upon receipt by the addressee:
(i) if to a Holder of Registrable Securities at the address of
such Holder provided in Schedule I hereto or at such other address as
the applicable Holder may designate to the Company and the Partnership
in writing;
(ii) if to the Company at:
Wal-Mart Stores, Inc.
000 X.X.0xx Xx.
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
General Counsel
Telecopy: (000) 000-0000
(iii) if to the Partnership at:
Xxxxxx Enterprises, L.P.
c/o Wilmington Trust Company
0 Xxxxx XxXxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors of each of the parties;
provided, however, that this Agreement and the provisions of this Agreement
that are for the benefit of the Holders shall not be assignable by any
Holder to any Person and any such purported assignment shall be null and
void.
(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.
16
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed wholly within that State.
(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 contained herein
shall not be in any way impaired thereby, it being intended that all
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Partners shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter hereof. There are no restrictions, promises, warranties or
undertakings with respect to the subject matter hereof, other than those
set forth or referred to herein. This Agreement supersedes all prior
agreements and
17
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
WAL-MART STORES, INC.,
by:
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title:
XXXXXX ENTERPRISES, L.P.,
by:
/s/ X. Xxxxxx Xxxxxx
--------------------
Name: X. Xxxxxx Xxxxxx
Title:
