Exhibit 4.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 12, 2000
By and Among
RITE AID CORPORATION
and
THE LENDERS LISTED HEREIN
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of June 12, 2000, by and among RITE AID CORPORA TION, a
Delaware corporation (the "COMPANY") and the Lenders listed herein (the
"LENDERS").
W I T N E S S E T H:
WHEREAS, pursuant to the Debt to Equity Conversion Letters
dated as of June 12, 2000 (each an "EQUITY CONVERSION LETTER") between each
Lender and the Company, the Company has agreed to issue to each Lender
shares of Common Stock of the Company, par value $.01 per share
(collectively, the "COMMON SHARES"), in the amounts set forth on Schedule A
hereto;
WHEREAS, in connection with the issuance of the Common Shares
to the Lenders, the Company has agreed to provide to the holders of the
Common Shares the registration rights set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to and on the terms and conditions herein set
forth, the parties hereto hereby agree as follows:
ARTICLE I
Certain Definitions
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
1.1 "Commission" shall mean the Securities and Exchange
Commission or any federal agency at the time administering the Securities
Act.
1.2 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any federal statute then in effect which has replaced
such statute.
1.3 "Group" shall mean two or more Persons that would be deemed
a "group" for purposes of Rule 13d-5 under the Exchange Act.
1.4 "Holder" means any Lender for so long as it owns any
Registrable Securities and any other Person who is a holder or beneficial
owner of Registrable Securities for so long as such Person owns any
Registrable Securities.
1.5 "Person" shall mean an individual, corporation, limited
liability company, joint venture, partnership, trust, unincorporated
organization, government or any agency or political subdivision thereof or
any other entity that may be treated as a person under applicable law.
1.6 "Registrable Securities" shall mean the Common Shares.
As to any Registrable Securities, such securities shall cease
to be Registrable Securities when (i) a registration statement registering
such Registrable Securities under the Securities Act has been declared or
becomes effective and such Registrable Securities have been sold or
otherwise transferred by the Holder thereof pursuant to such effective
registration statement; (ii) such Registrable Securities are sold pursuant
to Rule 144 under circumstances in which any legend borne by such
Registrable Securities relating to restrictions on the transferability
thereof, under the Securities Act or otherwise, is removed by the Company
or such Registrable Securi ties are eligible to be sold pursuant to
paragraph (k) of Rule 144; or (iii) such Registrable Securities shall cease
to be outstanding.
1.7 "Rule 144" shall mean Rule 144 promulgated under the
Securities Act.
1.8 "Securities Act" shall mean Securities Act of 1933, as
amended, or any federal statute then in effect which has replaced such
statute.
ARTICLE II
Public Offering Pursuant to Registration Rights
2.1 Demand Registrations.
(a) Holders of Registrable Securities representing not
less than one-half of the then-outstanding Registrable Securities (the
"INITIATING HOLD ERS") may require that the Company effect a registration
under the Securities Act at any time or times with respect to at least 25%
of the Common Shares issued pursuant to the Equity Conversion Letters (or,
if less, all remaining Registrable Securities) (a "DEMAND REGISTRATION").
Upon receipt of written notice of such demand, the Company will promptly
give written notice of the proposed registration to all Holders other than
Initiating Holders and will include in such registration (x) all
Registrable Securities specified in such demand, together with Registrable
Securities of like kind of any other Holder joining in such demand as are
specified in a written request received by the Company within 20 days after
delivery of the Company's notice and (y) all shares of equity securities of
the Company which the Company or other holders of equity securities having
registration rights may elect to register. Notwithstanding anything in this
Section 2.1(a) to the contrary, the Holders will collectively be entitled
to no more than an aggregate of two (2) Demand Registrations.
(b) The Company shall file a registration statement with
respect to each Demand Registration requested pursuant to Section 2.1(a) as
soon as practicable after receipt of the demand of the Initiating Holders;
provided, however, that (x) if in the good faith judgment of the Board of
Directors of the Company (the "BOARD"), deferral of such Demand
Registration or delivery of any prospectus supplement to be delivered
pursuant to Section 2.5 would be in the best interests of the Company in
that such registration or delivery would interfere with any other material
corporate transaction (as evidenced by an appropriate resolution of the
Board) of the Company or would require the disclosure of material
non-public information, then the Company shall have the right to defer such
filing or delivery, as the case may be, in order to effect such other
material corporate transaction; provided, further, however, that the
Company may not defer the filing or delivery, as the case may be, for any
period or periods aggregating more than 90 days after receipt of the demand
of the Initiating Holders, (y) the Company shall not be required to file
any registration statement or deliver any prospectus supplement (i) if such
filing or delivery is prohibited by applicable law, (ii) if the Company
cannot obtain, after using its reasonable best efforts, financial
information (or information used to prepare such information) necessary for
inclusion of such registration statement or prospectus supplement or (iii)
if the Company has already filed a registration statement which has not yet
been declared effective or 30 days prior to the anticipated consummation of
a public offering by the Company of its equity securities and 90 days
subsequent to the consummation of such public offering, and (z) if the
Company undertakes a registration within 90 days following an exercise of
its deferral right, the Holders shall have "piggyback" rights under Section
2.2 hereof such that they shall be entitled to include therein a number of
shares equal to not less than one-third (1/3) of the number of shares of
Common Stock to be sold in such offering unless such inclusion would be in
conflict with the express registration rights of any other party pursuant
to any agreement by and between the Company and such party as in existence
on the date hereof, in which instance such Holders shall be entitled to
include in such offering the maximum number of shares not resulting in such
conflict.
(c) If the Initiating Holders intend to distribute the
Registrable Securities covered by a Demand Registration by means of an
underwrit ing, they shall so advise the Company as part of their demand
made pursuant to Section 2.1(a) and the Company shall include such
information in its written notice to Holders. The Initiating Holders shall
have the right to select the managing underwriter(s) for any underwritten
Demand Registration, subject to the approval of the Board (which will not
be unreasonably withheld or delayed). The right of any Holder to
participate in an underwritten Demand Registration shall be conditioned
upon such Holder's participation in such underwriting in accordance with
the terms and conditions thereof, and the Company and all such Holders will
enter into an underwriting agreement in customary form.
(d) The Holders will have absolute priority over any
other securities of the Company sought to be included in a Demand
Registration. If such other securities are included in any Demand
Registration that is not an underwritten offering, all Registrable
Securities of the Holders included in such offering shall be sold prior to
or concurrently with the sale of any of such other securities. If other
securities of the Company are included in any Demand Registration that is
an underwritten offering, and the managing underwriter for such offering
advises the Company that in its opinion the amount of securities to be
included exceeds the amount of securities which can be sold in such
offering without adversely affecting the marketability thereof, the Company
will include in such registration all Registrable Securities requested to
be included therein by the Holders prior to the inclusion of any other
securities of the Company. If the number of Registrable Securities
requested by the Holders to be included in such registration exceeds the
amount of securities which in the opinion of such managing underwriter can
be sold without adversely affecting the marketability of such offering,
such Registrable Securities shall be included pro rata among the Holders
based on the percentage of the then-outstanding Registrable Securities held
by each such Holder.
2.2 Piggyback Registration.
(a) If the Company shall determine to register any equity
securities of the Company for its own account or for the account of other
holders of equity securities of the Company on any registration form (other
than Form S-4 or S- 8 or other successor forms) which permits the inclusion
of Registrable Securities held by any Holder (a "PIGGYBACK REGISTRATION"),
the Company will promptly give each Holder written notice thereof and,
subject to Section 2.2(c), shall include in such registration all
Registrable Securities requested to be included therein pursuant to the
written requests of Holders received within 20 days after delivery of the
Company's notice.
(b) If the Piggyback Registration relates to an
underwritten public offering, the Company shall so advise the Holders as
part of the written notice given pursuant to Section 2.2(a). In such event,
the right of any Holder to participate in such registration shall be
conditioned upon such Holder's participation in such underwriting in
accordance with the terms and conditions thereof. The Board shall have the
right to select the managing underwriter(s) for any underwritten Piggyback
Registration. All Holders proposing to distribute their Registrable
Securities through such underwriting shall (together with the Company)
enter into an underwriting agreement in customary form.
(c) If such proposed Piggyback Registration is an under
written offering and the managing underwriter for such offering advises the
Com pany that the securities requested to be included therein exceeds the
amount of securities that can be sold in such offering, except as provided
in Section 2.1(b), any securities to be sold by the Company or other
holders of the Company's securities initiating such offering in such
offering shall have priority over any Registrable Securities held by
Holders, and the number of shares to be included by a Holder and other
holders of the Company's securities that did not initiate the offering in
such registration shall be reduced pro rata on the basis of the percentage
of the then outstanding Registrable Securities held by each such Holder and
all other holders exercising similar registration rights.
2.3 Expenses of Registration. All expenses incurred in
connection with up to two Demand Registrations and all Piggyback
Registrations shall be borne by the Company, including without limitation
the reasonable cost of one counsel to all Holders reasonably acceptable to
the Company (the Company herein acknowledg ing that Xxxxx Xxxx & Xxxxxxxx
is acceptable counsel). All underwriting discounts, selling commissions and
other similar fees relating to Registrable Securities included in any
Demand or Piggyback Registration shall be borne by the holders of such
Registrable Securities pro rata on the basis of the amount of Registrable
Securities sold by them.
2.4 Registration Procedures. In the case of each registration
effected by the Company pursuant to this Article II, the Company will keep
each Holder advised in writing as to the initiation of such registration
and as to the completion thereof. At its expense, the Company will use its
best efforts to:
(a) cause such registration to be declared effective by
the Commission and, in the case of a Demand Registration, keep such
registration effective for a period of 180 days or until the Holders whose
Registrable Securities are included therein have completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
(b) as soon as reasonably possible, prepare and file with
the Commission such amendments and supplements to such registration
statement and the prospectus included therein (including post-effective
amendments, prospec tus supplements and pricing supplements) as may be
necessary to effect and maintain the effectiveness of such registration
statement for the period specified in Section 2.4(a);
(c) provide (A) the Holders of the Registrable Securities
to be included in such registration statement, (B) the underwriters (which
term, for purposes of this Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(11) of the Securities Act)
if any, thereof, (C) the sales or placement agent therefor, if any, (D)
counsel for such underwriters or agent, and (E) not more than one counsel
for all the holders of such Registrable Securities the opportunity to
participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each
amendment or supplement thereto;
(d) (A) register or qualify the Registrable Securities to
be included in such registration statement under such securities laws or
blue sky laws of such jurisdictions as any Holder of such Registrable
Securities and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, and (B) take any and
all other actions as may be reasonably necessary or advisable to enable
each such Holder, agent, if any, and underwriter, if any, to consummate the
disposition in such jurisdictions of such Registrable Securities; provided,
however, that the Company shall not be required for any other purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein it would
not otherwise be required to qualify but for the requirements of this
Section 2.4(d) or (2) consent to general service of process or taxation in
any such jurisdiction;
(e) furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as any Holder from time to time may reasonably request;
(f) promptly notify the selling Holders of Registrable
Securities, the sales or placement agent, if any, therefor and the managing
under writer or underwriters, if any, thereof and confirm such advice in
writing, (A) when such registration statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and with respect to such registration statement
or any post-effective amendment, when the same has become effective, (B) of
any comments by the Commission, the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company contemplated by Section 2.4(n) or Section 3 cease to be true
and correct in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Securities for the sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (F) at any time when
a prospectus is required to be delivered under the Securities Act, that
such registra tion statement, prospectus, prospectus amendment or
supplement or post-effective amendment, or any document incorporated by
reference in any of the foregoing, contains an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not mislead ing in
light of the circumstances then existing;
(g) obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective
amendment thereto at the earliest practicable date;
(h) if requested by any managing underwriter or underwrit
ers, any placement or sales agent or any Holder of Registrable Securities,
promptly incorporate in a prospectus supplement or post-effective amendment
such informa tion as is required by the applicable rules and regulations of
the Commission and as such managing underwriter or underwriters, such agent
or such holder specifies should be included therein relating to the terms
of the sale of such Registrable Securities, including, without limitation,
information with respect to the principal amount of Registrable Securities
being sold by such Holder or agent or to any underwriters, the name and
description of such Holder, agent or underwriter, the offering price of
such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Registrable Securities to be sold by such Holder or agent
or to such underwriters;
(i) furnish to each Holder of Registrable Securities
included in such registration statement, each placement or sales agent, if
any, therefor, each underwriter, if any, thereof and the respective counsel
referred to in Section 2.4(c) an executed copy of such registration
statement, each such amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein) and such number of copies of such registration statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically and reasonably so requested by such Holder, agent or
underwriter, as the case may be) and of the prospectus included in such
registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities
Act; and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Holder and by any such agent and
underwriter, if any, in each case in the form most recently provided to
such party by the Company, in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment thereto;
(j) cause all Registrable Securities covered by such
registration to be listed on each securities exchange or inter-dealer
quotation system on which similar securities issued by the Company are then
listed;
(k) provide a transfer agent and registrar for all
Registrable Securities covered by such registration and a CUSIP number for
all such Registrable Securities, in each case not later than the effective
date of such registration;
(l) cooperate with the Holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certifi xxxxx shall not bear any restrictive legends;
(m) with respect to an underwritten Demand Registration,
whether or not an agreement of the type referred to in Section 2.4(p)
hereof is entered into, obtain an opinion or opinions of counsel to the
Company in customary form and covering such other matters of the type
customarily covered by such an opinion, as the managing underwriters may
reasonably request, addressed to the underwriters thereof and dated the
closing date of such offering; obtain a "cold comfort" letter or letters
from the independent certified public accountants of the Company addressed
to the underwriters thereof, dated (i) the effective date of such
registration statement, (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration state ment which includes
unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such
prospectus (and, if such registration statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such registration statement or post-effective
amendment to such registration statement which includes unaudited or
audited financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus, dated the
date of the closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; deliver such
documents and certificates, including officers' certificates, as may be
reasonably requested by the managing underwriters thereof to evidence the
accuracy of the representations and warranties contained in Section 3
hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Company; and undertake such obligations relating to
expense reimbursement, indemnification and contribution as are provided in
Section 2.7 hereof;
(n) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Conduct (the "RULES OF
CONDUCT") of the National Association of Securities Dealers, Inc. ("NASD")
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise use its reasonable best efforts to assist such
broker-dealer in complying with the requirements of such Rules of Conduct,
including, without limitation, by providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the Rules of Conduct;
(o) otherwise comply with all applicable rules and regula
tions of the Commission and make available to its security holders, as soon
as reasonably practicable but in no event later than eighteen months after
the effective date of such registration statement, an earnings statement
covering the period of at least twelve months, but not more than 18 months,
beginning with the first month after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act (including, at the option of the Company, Rule
158 thereunder); and
(p) in connection with any underwritten Demand Registra
tion, the Company will enter into an underwriting agreement reasonably
satisfactory to the Initiating Holders containing customary underwriting
provisions, including indemnification and contribution provisions.
2.5 Delivery of Prospectus Supplement. Subject to Section
2.1(b), in the event that the Company would be required, pursuant to
Section 2.4(f) above, to notify the selling Holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall as soon as reasonably
practicable prepare and furnish to each such Holder, to each placement or
sales agent, if any, and to each underwriter, if any, a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter
delivered to initial purchasers of Registrable Securities, such prospectus
shall 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 not misleading in light of the circumstances then
existing. Each Holder of Registrable Securities agrees that upon receipt of
any notice from the Company pursuant to Section 2.4(f) hereof, such Holder
shall forthwith discontinue the disposition of Registrable Securities
pursuant to the registration statement applicable to such Registrable
Securities until such Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such Holder
shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Holder's possession of the
prospectus covering such Registrable Securities at the time of receipt of
such notice.
2.6 Furnishing Information by the Holders. The Company may
require each Holder of Registrable Securities as to which any registration
is being effected to furnish to the Company such information regarding such
Holder and such Holder's intended method of distribution of such
Registrable Securities as the Company may from time to time reasonably
request in writing, but only to the extent that such information is
required in order to comply with the Securities Act. Each such Holder
agrees to notify the Company as promptly as practicable of any inaccu racy
or change in information previously furnished by such Holder to the Company
or of the occurrence of any event in either case as a result of which any
prospectus relating to such registration contains or would contain an
untrue statement of a material fact regarding such Holder or such Holder's
intended method of distribution of such Registrable Securities or omits to
state any material fact regarding such Holder or such Holder's intended
method of distribution of such Registrable Securi ties required to be
stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish
information so required so that such prospectus shall not contain, with
respect to such Holder or the distribution of such Registrable Securities,
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or neces sary to make the statements therein
not misleading in light of the circumstances then existing.
2.7 Indemnification.
(a) The Company will indemnify each Holder whose
Registrable Securities are to be included in a registration pursuant to
this Article II, each of such Holder's officers, directors, partners,
agents, employees and representa tives and each person controlling such
Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, with respect to each registra tion, qualification or
compliance effected pursuant to this Article II, against all expenses,
claims, losses, damages and liabilities (or actions, proceedings or settle
ments in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any
registration statement, prospec tus, or other document incorporated by
reference therein, or compliance, or 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, and will xxxx xxxxx each such
indemnified person for any legal and any other expenses reasonably incurred
in connection with investigating and defending or settling any such claim,
loss, damage, liability or action; provided, however, that the Company will
not be liable in any such case to a Holder to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission based upon written information furnished to
the Company by such Holder and provided for use in such registration
statement, prospectus, offering circular or other document or the Holder
delivered a registration or prospectus in violation of Section 2.5 hereof
after notice was provided by the Company as provided in Section 2.5. It is
agreed that the indemnity agreement contained in this Section 2.7(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
the Company (which consent shall not be unreasonably withheld or delayed).
(b) Each Holder whose Registrable Securities are included
in any registration effected pursuant to this Article II shall indemnify
the Company, each of its directors, officers, agents, employees and
representatives, and each Person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, each other such Holder and each of their officers, directors,
partners, agents, employees and representatives and each person controlling
such Holder, and each underwriter, if any, of such Registrable Securities
and each Person who controls any such underwriter, against all expenses,
claims, losses, damages and liabilities (or actions, proceedings or
settlements in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document
incident to such registration, qualification or compliance, or 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,
and will xxxx xxxxx such indemnified persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in strict conformity with written information furnished
to the Company by such Holder and provided specifically for use therein;
provided, however, that (x) no Holder shall be liable hereunder for any
amounts in excess of the gross proceeds received by such Holder pursuant to
such registration, and (y) the obligations of such Holder hereunder shall
not apply to amounts paid in settlement of any such claims, losses, damages
or liabilities (or actions in respect thereof) if such settlement is
effected without the consent of such Holder (which consent shall not be
unreasonably withheld).
(c) Each party entitled to indemnification under this
Section 2.7 (the "INDEMNIFIED PARTY") shall give notice to the party
required to provide indemnification (the "INDEMNIFYING PARTY") promptly
after such Indemni fied Party has actual knowledge of any claim as to which
indemnity may be sought and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or any litigation resulting therefrom, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld or delayed, the Company herein and hereby approving Xxxxx Xxxx &
Xxxxxxxx as counsel to the Lenders for the purposes of this Section
2.7(c)), and the Indemnified Party may participate in such defense with
counsel reasonably accept able to and paid for by the Indemnifying Party
but otherwise at the Indemnified Party's expense, and provided, further,
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obliga tions under this
Section 2.7 to the extent such failure is not materially prejudicial. No
Indemnifying Party in the defense of any such claim or litigation shall
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include an
unconditional release of such Indemni fied Party from all liability in
respect of such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(d) If the indemnification provided for in this Section
2.7 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other in connection with the statements or
omissions which resulted in such loss, liability, claim, damage or expense
as well as any other relevant equitable considerations. The relative fault
of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agree ment entered into in connection with an underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
2.8 Other Obligations. With a view to making available the
benefits of certain rules and regulations of the Commission which may
effectuate the registration of Registrable Securities or permit the sale of
Registrable Securities to the public without registration, the Company
agrees to:
(a) exercise best efforts to cause the Company to be
eligible to utilize Form S-3 (or any similar form) for the registration of
securities;
(b) at such time as any Registrable Securities are
eligible for transfer under Rule 144(k), upon the request of the holder of
such Registrable Securities, remove any restrictive legend from the
certificates evidencing such Registrable Securities at no cost to such
holder;
(c) make and keep available public information as defined
in Rule 144 under the Securities Act at all times;
(d) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities
Act and the Exchange Act at any time after it has become subject to such
reporting requirements; and
(e) furnish any Holder upon request a written statement
by the Company as to its compliance with the reporting requirements of Rule
144 (at any time from and after 90 days following the effective date of the
first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission
(including Rule 144A) allowing a holder of Registrable Securities to sell
any such Registrable Securities without registration.
2.9 Hold-Back Agreements. If requested by the Company or any
underwriter of securities of the Company, Holders shall not sell or
otherwise transfer or dispose of any Common Stock (other than pursuant to
such registration) during the period 15 days prior to and 90 days following
the effective date of registration statement relating to the offering of
the Company's securities for its own account or such longer period that the
underwriters may reasonably request. The obligations described in this
Section 2.9 shall not apply to a registration on Form S-4 or Form S- 8 or
similar forms which may be promulgated in the future and shall not apply to
a Holder holding less than 1% of the then-outstanding Common Stock.
ARTICLE III
Representations and Warranties
The Company represents and warrants to, and agrees with, the
Lenders and each of the Holders from time to time of Registrable Securities
that:
(a) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any subsidiary of the Company is a party
or by which the Company or any subsidiary of the Company is bound or to
which any of the property or assets of the Company or any subsidiary of the
Company is subject nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of the Company or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any subsidiary of
the Company or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except the
registration under the Securities Act of the Registrable Securities, and
such consents, approvals, authorizations, registrations or qualifica tions
as may be required under State securities or blue sky laws in connection
with the offering and distribution of the Registrable Securities.
(b) This Agreement has been duly authorized, executed
and delivered by the Company.
ARTICLE IV
Termination
This Agreement shall terminate immediately following the moment
at which there exist no securities of the Company that constitute
Registrable Securities; provided, however, that Section 2.7 hereof shall
survive indefinitely.
ARTICLE V
Miscellaneous
5.1 Recapitalization, Exchanges, etc. Affecting the Common
Stock. The provisions of this Agreement shall apply to the full extent set
forth herein with respect to (a) the Registrable Securities and (b) any and
all shares of capital stock of the Company or any successor or assign of
the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or in substitution for
the Registrable Securities, by reason of any stock dividend, split, reverse
split, combination, recapitalization, reclassification, merger,
consolidation or otherwise. In the event of any change in the
capitalization of the Company as a result of any stock split, stock
dividend or stock combination, the provisions of this Agreement shall be
appropriately adjusted.
5.2 Injunctive Relief. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved
Person will be irreparably damaged and will not have an adequate remedy at
law. Any such Person shall, therefore, in addition to any other remedies
available under applicable law, be entitled to injunc tive relief,
including specific performance, to enforce such obligations, without the
posting of any bond, and if any action should be brought in equity to
enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
5.3 Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforce able by the respective successors and assigns of the parties
hereto. In the event that any transferee of any Holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing of any kind, be deemed a party hereto
for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of and be conclu sively deemed to have agreed to be bound by and
to perform all of the terms and provisions of this Agreement.
5.4 Survival. The respective indemnities, agreements,
representa tions, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statements as to the results thereto)
made by or on behalf of any Holder of Registrable Securities, any director,
officer or partner of such Holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of
the foregoing, and shall survive the transfer of Registrable Securities by
such Holder.
5.5 Amendment; Waiver.
(a) This Agreement may be amended only by a written
instrument signed by the Company and by Holders holding more than 76% of
the then outstanding Registrable Securities and, in the case of any
amendment that adversely affects any Holder or all of the members of any
group of Holders differ ently from any of the other Holders, by such Holder
or the holders of more than 76% in interest of the securities of the
Company held by such group of Holders.
(b) No provision of this Agreement may be waived orally,
but only by a written instrument signed by the party against whom
enforcement of such waiver is sought. Holders shall be bound from and after
the date of the receipt of a written notice from the Company setting forth
such amendment or waiver, whether or not the Registrable Securities shall
have been marked to indicate such amendment or waiver.
5.6 Notices. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing
(includ ing a writing delivered by facsimile transmission) and shall be
deemed to have been duly given if delivered personally, or sent by either
certified or registered mail, return receipt requested, postage prepaid, or
by overnight courier guaranteeing next day delivery, or by telex or
telecopier, at the following addresses:
if to the Company:
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
if to X.X. Xxxxxx:
X.X. Xxxxxx Ventures Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
if to any additional Lender, as set forth on
Schedule B hereto.
Any Lender may, by written notice given to the Company in accordance with
this Section 4.5, change the address to which such notice or other
communications are to be sent to it. All such notices and communications
shall be deemed to have been given on the date of delivery thereof, if
delivered by hand, on the fifth day after the mailing thereof, if mailed,
on the next day after the sending thereof, if by overnight courier and when
receipt is acknowledged, if telecopied.
5.7 Inspection. So long as this Agreement shall be in effect,
this Agreement and any amendments hereto shall be made available for
inspection by any Holder at the principal offices of the Company.
5.8 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
5.9 Headings. Article, section and paragraph headings are
inserted for convenience only and do not constitute a part of this
Agreement.
5.10 Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to the subject matter
hereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or under takings with respect to the subject matter
hereof other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and under standings between the
parties with respect to this subject matter.
5.11 Illegality. In case any provision in this Agreement shall
be declared or held invalid, illegal or unenforceable, in whole or in part,
whether generally or in any particular jurisdiction, such provision shall
be deemed amended to the extent, but only to the extent, necessary to cure
such invalidity, illegality or unenforceability, and the validity, legality
and enforceability of the remaining provisions, both generally and in every
other jurisdiction, shall not in any way be affected or impaired thereby.
5.12 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument, and it shall not be
necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
RITE AID CORPORATION
By:______________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:______________________________________
Name:
Title:
X.X. XXXXXX VENTURES CORPORATION
By:______________________________________
Name:
Title:
SALOMON BROTHERS HOLDING COMPANY, INC.
By:______________________________________
Name:
Title:
CHASE SECURITIES INC. as Agent for
THE CHASE MANHATTAN BANK
By:______________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:______________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By:______________________________________
Name:
Title:
ROYAL BANK OF CANADA
By:______________________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC
as agent for BANK OF AMERICA, N.A.
By:______________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:______________________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:______________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:______________________________________
Name:
Title:
SPECIAL SITUATIONS FUND ADVISORS, INC.
as agent for THE CHASE MANHATTAN BANK
By:______________________________________
Name:
Title:
FARALLON CAPITAL PARTNERS, L.P.
FARALLON CAPITAL INSTITUTIONAL
PARTNERS, L.P.
FARALLON CAPITAL INSTITUTIONAL
PARTNERS II, L.P.
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P.
TINICUM PARTNERS, L.P.
By: Farallon Partners, L.L.C., its
General Partner
By:______________________________________
Name:
Title:
FARALLON CAPITAL OFFSHORE INVESTORS, INC.
By: Farallon Capital Management, L.L.C.,
its Agent and Attorney-in-Fact
By:______________________________________
Name:
Title:
SCHEDULE A
SCHEDULE B
