RITE AID CORPORATION
$152,025,000 12.50% Senior Secured Notes due 2006
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 27, 2001
State Street Bank and Trust Company
and the Holders of the 12.50% Senior
Secured Notes due 2006
c/o State Street Bank and
Trust Company
Corporate Trust
Xxxxxxx Square, 23rd Floor
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Rite Aid Corporation, a Delaware corporation (the "Company"),
proposes to issue to the entities listed on Schedule I hereto (the "Exchanging
Holders") an aggregate of $152,025,000 principal amount of its 12.50% Senior
Secured Notes due 2006 (the "Securities") in exchange for a like aggregate
principal amount of its validly tendered 10.50% Senior Secured Notes due 2002
(the "Existing Notes"), in accordance with the Note Exchange Agreement dated as
of June 27, 2001 (the "Exchange Agreement") by and among the Company and the
Exchanging Holders. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Exchange Agreement.
As an inducement to the Exchanging Holders to tender the
Existing Notes, the Company and each of the subsidiaries of the Company listed
on the signature pages hereto (the "Subsidiary Guarantors") agrees, jointly and
severally, with the Trustee (as defined herein), for the benefit of the
Exchanging Holders and the holders of the Securities and the Exchange Securities
(as defined herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Company and the Subsidiary
Guarantors shall (i) prepare and, not later than the date that is forty-five
(45) days after the Closing Date (the date of such filing being referred to
herein as the "Filing Date"), file with the Commission a registration statement
(the "Exchange Offer Registration Statement") on an appropriate form under the
Securities Act with respect to a proposed offer to the Holders of the Securities
(the "Registered Exchange Offer") to issue and deliver to such Holders, in
exchange for the Securities, a like aggregate principal amount of debt
securities of the Company (the "Exchange Securities") that are identical in all
material respects to the Securities, except for the transfer restrictions
relating to the Securities, (ii) use their best efforts to cause the Exchange
Offer Registration Statement to become effective under the Securities Act no
later than 180 days after the Filing Date, (iii) as soon as practicable after
the effectiveness of the Exchange Offer Registration Statement, initiate the
Registered Exchange Offer as set forth in the following paragraph and (iv) keep
the Registered Exchange Offer open for not less than 30 days (or longer, if
required by applicable law) after the date on which notice of the Registered
Exchange Offer is mailed to the Holders in accordance with the following
paragraph (such period being called the "Exchange Offer Registration Period").
The Exchange Securities will be issued under the same indenture as the
Securities (the "Indenture") among the Company, the Subsidiary Guarantors and
the trustee named therein (the "Trustee"), as the Securities, with such
modifications as may be appropriate to account for the registration of the
Exchange Securities under the Securities Act.
As soon as practicable after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Securities for Exchange Securities (assuming that
such Holder (a) is not an affiliate of the Company or an Exchanging Dealer (as
defined herein) not complying with the requirements of the next sentence, (b) is
not holding Securities that have, or that are reasonably likely to have, the
status of an unsold allotment in an initial distribution, (c) acquires the
Exchange Securities in the ordinary course of such Holder's business and (d) has
no arrangements or understandings with any person to participate, and is not
participating, in the distribution of the Exchange Securities) and to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
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the securities laws of the several states of the United States. The Company, the
Holders and each Exchanging Dealer (as defined below) acknowledge that, pursuant
to current interpretations by the Commission's staff of Section 5 of the
Securities Act, each Holder that is a broker-dealer electing to exchange
Securities, acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Securities (an "Exchanging Dealer"),
is required, in connection with a sale of any such Exchange Securities received
by such Exchanging Dealer pursuant to the Registered Exchange Offer, to deliver
a prospectus containing substantially the information set forth (i) in Annex A
hereto on the cover of such prospectus, (ii) in Annex B hereto in the "Exchange
Offer Procedures" section and the "Purpose of the Exchange Offer" section of
such prospectus and (iii) in Annex C hereto in the "Plan of Distribution"
section of such prospectus.
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder of Securities a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders of Securities;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(d) permit Holders to withdraw tendered Securities at any time
prior to the end of the Registered Exchange Offer, as set forth in the materials
originally mailed to Holders of Securities or otherwise extended by the Company;
(e) prior to effectiveness of the Exchange Offer Registration
Statement, if requested or required by the Securities and Exchange Commission
(the "Commission"), use its best efforts to provide a supplemental letter to the
Commission (A) stating that the Company is conducting the Registered Exchange
Offer in reliance on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub.
avail. June 5, 1991); and (B) including a representation that the Company has
not entered into any arrangement or understanding with any person to distribute
the Exchange Securities to be received in the Registered Exchange Offer and
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that, to the best of the Company's information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the Exchange
Securities in the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of the Exchange
Securities; and
(f) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(a) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(c) cause the Trustee promptly to authenticate and deliver to
each Holder, Exchange Securities equal in principal amount to the Securities of
such Holder so accepted for exchange.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the earlier of one year from the close
of the Registered Exchange Offer and the date on which all Exchanging Dealers
have sold all Exchange Securities held by them and (ii) the Company shall make
such prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 90 days after the consummation of the Registered
Exchange Offer.
The Indenture shall provide that the Securities and the
Exchange Securities shall vote and consent together on all matters as to which
the Indenture provides for voting and consent as one class and that neither the
Securities nor the Exchange Securities will have the right to vote or consent as
a separate class on any matter.
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Interest on each Exchange Security issued pursuant to the
Registered Exchange Offer will accrue from the last interest payment date on
which interest was paid on the Securities surrendered in exchange therefor or,
if no interest has been paid on the Securities, from the date of the closing of
the Exchange Offer.
Each Holder hereby acknowledges and agrees that any such
Holder using the Registered Exchange Offer to participate in a distribution of
the Exchange Securities (x) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission in Xxxxxx
Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), as interpreted in the Commission's
letter to Xxxxxxxx & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any secondary resale transaction which
must be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Securities Act if the resales are of Exchange
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate and is not
participating in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act and (iii) such Holder is not an
affiliate of the Company or, if it is such an affiliate (as defined in Section
10 (e)), such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not, as of the
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consummation of the Registered Exchange Offer, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) the Registered Exchange Offer is not completed within 220 days
after the Filing Date, or (iii) a Holder of Securities notifies the Company
following the completion of the Registered Exchange Offer that the Securities
held by such Holder are not eligible to be exchanged for Exchange Securities in
the Registered Exchange Offer, or (iv) certain Holders of the Securities are
prohibited by law or the policy of the Commission from participating in the
Registered Exchange Offer or the Exchange Securities may not be freely
transferable by such Holders, then the following provisions shall apply:
(a) The Company and the Subsidiary Guarantors shall promptly
file (but in no event more than 30 days after so required or requested pursuant
to this Section 2) with the Commission, and thereafter shall use their best
efforts to cause to be declared effective, a shelf registration statement on an
appropriate form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities (as defined below) by the Holders thereof from
time to time in accordance with the methods of distribution set forth in such
registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Company and the Subsidiary Guarantors shall keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer Restricted
Securities for a period ending on the earlier of (i) two years from the
effective date of the Shelf Registration Statement or such shorter period that
will terminate when all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant thereto and (ii) the date on
which the Securities become eligible for resale without volume restrictions
pursuant to Rule 144 under the Securities Act (in any such case, such period
being called the "Shelf Registration Period"). The Company and the Subsidiary
Guarantors shall be deemed not to have complied with this paragraph (b) if they
voluntarily take any action that would result in Holders of Transfer Restricted
Securities covered thereby not being able to offer and sell such Transfer
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Restricted Securities during that period, unless such action is required by
applicable law.
(c) Notwithstanding any other provisions hereof, the Company
and the Subsidiary Guarantors shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto complies in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder, (ii) any Shelf
Registration Statement and any amendment thereto (in either case, other than
with respect to information included therein in reliance upon or in conformity
with written information furnished to the Company by or on behalf of any Holder
specifically for use therein (the "Holders' Information")) does 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 and
(iii) any prospectus forming part of any Shelf Registration Statement, and any
supplement to such prospectus (in either case, other than with respect to
Holders' Information), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
3. Additional Interest. (a) If (i) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to
forty-five (45) days after the Closing Date, (ii) the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
is not declared effective within 180 days after the Filing Date (or in the case
of a Shelf Registration, after the day the filing is required by Section 2 (a)),
(iii) the Registered Exchange Offer is not consummated on or prior to 40 days
after the Exchange Offer Registration Statement is declared effective, (iv) if
the Company is required to file the Shelf Registration Statement in accordance
with Section 2, the Company does not so file the Shelf Registration Statement on
or prior to the 30th day after the Company's obligation to file such Shelf
Registration Statement arises, or (v) the applicable Registration Statement is
filed and declared effective but shall thereafter cease to be effective (at any
time that the Company is obligated to maintain the effectiveness thereof)
without being again effective within 30 days or being succeeded within 30 days
by an additional Registration Statement filed and declared effective (each such
event referred to in clauses (i) through (v), a "Registration Default"), the
Company shall be obligated to pay additional interest ("Additional Interest") to
each Holder of Transfer Restricted Securities, during the period of one or more
such Registration Defaults, at a rate of 0.25% per annum on the applicable
principal amount of Transfer Restricted Securities held by such Holder for the
first 90-day period immediately following the occurrence of a Registration
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Default, and such rate will increase by an additional 0.25% with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum additional rate of 1.00% per annum. Such obligation to pay Additional
Interest shall survive until (i) the applicable Registration Statement is filed,
(ii) the Exchange Offer Registration Statement is declared effective and the
Registered Exchange Offer is consummated with respect to all properly tendered
Securities, (iii) the Shelf Registration Statement is declared effective or (iv)
the Shelf Registration Statement again becomes effective (or is superseded by
another effective Shelf Registration Statement), as the case may be. Following
the cure of all Registration Defaults, the accrual of Additional Interest will
cease.
As used herein, the term "Transfer Restricted Securities"
means (i) each Security until the date on which such Security has been exchanged
for a freely transferable Exchange Security in the Registered Exchange Offer,
(ii) each Security until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable without restriction pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 3 (a), the Company
shall not be required to pay Additional Interest to a Holder of Transfer
Restricted Securities if such Holder failed to comply with its obligations to
make the representations set forth in the second to last paragraph of Section 1
or failed to provide the information required to be provided by it, if any,
pursuant to Section 4 (n).
(b) The Company shall notify the Trustee and the paying agent
under the Indenture immediately upon the happening of each and every
Registration Default. The Company shall pay the Additional Interest due on the
Transfer Restricted Securities by depositing with the paying agent (which may
not be the Company for these purposes), in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time, on the next applicable
interest payment date specified by the Indenture and the Securities, sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each applicable interest payment date specified by the
Indenture and the Securities to the record holder entitled to receive the
interest payment to be made on such date. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the date of the applicable
Registration Default.
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(c) The parties hereto agree that the Additional Interest
provided for in this Section 3 constitute a reasonable estimate of and are
intended to constitute the sole damages that will be suffered by Holders of
Transfer Restricted Securities by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to remain effective or (iii) the Exchange
Offer Registration Statement to be declared effective and the Registered
Exchange Offer to be consummated, in each case to the extent required by this
Agreement.
4. Registration Procedures. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Holder, prior to the
filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as any Holder may
reasonably propose; (ii) include the information set forth (A) in Annex A hereto
on the cover of such prospectus, (B) in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section of such
prospectus and (C) in Annex C hereto in the "Plan of Distribution" section of
the prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and (iii) if requested by
any Holder, include the information required by Items 507 or 508 of Regulation
S-K, as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement.
(b) The Company shall advise each Exchanging Dealer and the
Holders (if applicable) and, if requested by any such person, confirm such
advice in writing (which advice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
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(iii) if known by the Company, of the issuance by the
Commission of any stop order suspending the effectiveness of any
Registration Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities or
the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and
do not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(c) The Company and the Subsidiary Guarantors shall make every
reasonable effort to obtain the withdrawal at the earliest possible time of any
order suspending the effectiveness of any Registration Statement.
(d) The Company shall furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Company shall, during the Shelf Registration Period,
promptly deliver to each Holder of Transfer Restricted Securities included
within the coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included in
such Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company and the Subsidiary
Guarantors consent to the use of such prospectus or any amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Securities in
connection with the offer and sale of the Transfer Restricted Securities covered
by such prospectus or any amendment or supplement thereto.
(f) The Company shall furnish to each Exchanging Dealer, and
to any Holder who so requests, without charge, at least one conformed copy of
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the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules and, if any Exchanging
Dealer or any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(g) The Company shall, during the Exchange Offer Registration
Period or the Shelf Registration Period, as applicable, promptly deliver to each
Exchanging Dealer and such other persons that are required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement or the Shelf Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer or other persons may reasonably request; and
the Company and the Subsidiary Guarantors consent to the use of such prospectus
or any amendment or supplement thereto by any such Exchanging Dealer or other
persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement,
the Company and the Subsidiary Guarantors shall use their best efforts to
register or qualify, or cooperate with the Holders of Securities or Exchange
Securities included therein and their respective counsel in connection with the
registration or qualification of, such Securities or Exchange Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
any such Holder reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Securities or Exchange Securities covered by such Registration Statement;
provided that the Company and the Subsidiary Guarantors shall not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of Securities
or Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities or Exchange Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders thereof may request
in writing prior to sales of Securities or Exchange Securities pursuant to such
Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Company is required to maintain an
effective Registration Statement, the Company and the Subsidiary Guarantors
shall promptly prepare and file with the Commission a post-effective amendment
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to the Registration Statement or a supplement to the related prospectus or file
any other required document so that, as thereafter delivered to purchasers of
the Securities or Exchange Securities from a Holder, the prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Company shall provide a CUSIP number for the
Securities and the Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the Securities or the Exchange
Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company and the Subsidiary Guarantors shall comply
with all applicable rules and regulations of the Commission and shall make
generally available to the Company's security holders as soon as practicable
after the effective date of the applicable Registration Statement an earning
statement satisfying the provisions of Section 11(a) of the Securities Act;
provided that in no event shall such earning statement be delivered later than
45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the applicable Registration
Statement, which statement shall cover such 12-month period.
(m) The Company and the Subsidiary Guarantors shall cause the
Indenture to be qualified under the Trust Indenture Act as required by
applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Company may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder
of Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (v), such Holder
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will discontinue disposition of such Transfer Restricted Securities until such
Xxxxxx's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(j) or until advised in writing (the "Advice") by the
Company that the use of the applicable prospectus may be resumed. If the Company
shall give any notice under Section 4(b)(ii) through (v) during the period that
the Company is required to maintain an effective Registration Statement (the
"Effectiveness Period"), such Effectiveness Period shall be extended by the
number of days during such period from and including the date of the giving of
such notice to and including the date when each seller of Transfer Restricted
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemental or amended prospectus contemplated by Section 4(j)
(if an amended or supplemental prospectus is required) or (y) the Advice (if no
amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company
and the Subsidiary Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as Holders of a majority in aggregate principal
amount of the Securities or Exchange Securities being sold or the managing
underwriters, if any, shall reasonably request in order to facilitate any
disposition of Securities or Exchange Securities pursuant to such Shelf
Registration Statement.
(q) In the case of any Shelf Registration Statement, the
Company and the Subsidiary Guarantors, as applicable, shall:
(i) make reasonably available for inspection by the Holders
of, representatives and counsel to, a majority in aggregate
principal amount of the Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by such Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection
with any such Shelf Registration Statement as is customary for
similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such underwriter,
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attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten
offerings;
(iv) if requested by Holders of a majority in aggregate
principal amount of the Securities to be registered thereunder or by
any underwriter participating in any disposition pursuant to such
Shelf Registration Statement, to use its reasonable best efforts to
have its counsel issue legal opinions and updates thereof (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) if requested by Holders of a majority in aggregate
principal amount of the Securities to be registered thereunder or by
any underwriter participating in any disposition pursuant to such
Shelf Registration Statement, to use its reasonable best efforts to
obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which, in each case, financial statements and financial data
are, or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder of Securities
registered thereunder and the underwriters, if any, in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities being
sold and the underwriters, if any, and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company and the Subsidiary Guarantors.
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The actions set forth in clauses (iii), (iv), (v) and (vi) of this subsection
shall be performed at (A) the effectiveness of such Shelf Registration Statement
and each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other person as
directed by the Company) in exchange for the Exchange Securities, the Company
shall mark, or cause to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the Exchange Securities. In no
event shall the Securities be marked as paid or otherwise satisfied.
(s) The Company will use its reasonable best efforts to cause
the Securities covered by a Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by Holders of a
majority in aggregate principal amount of the Securities and the Exchange
Securities being sold with respect to the related Registration Statement or by
any underwriters.
(t) In the event that any broker-dealer shall underwrite any
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 Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
assist such broker-dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and,
if any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
15
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Rules.
5. Registration Expenses. The Company and the Subsidiary
Guarantors shall bear all expenses incurred in connection with the performance
of its obligations under Sections 1, 2, 3 and 4 and, in the case of a Shelf
Registration Statement, the Company and the Subsidiary Guarantors shall
reimburse the Holders for the reasonable fees and disbursements of one firm of
attorneys (in addition to any local counsel) chosen by the Holders of a majority
in aggregate principal amount of the Securities and the Exchange Securities to
be sold pursuant to each Registration Statement (the "Special Counsel") acting
for the Holders in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Exchanging Dealer, the Company and the
Subsidiary Guarantors shall, jointly and severally, indemnify and hold harmless
each Holder (including, without limitation, any such Exchanging Dealer), their
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls such Holder, as applicable, within
the meaning of the Securities Act or the Exchange Act (collectively referred to
for purposes of this Section 6 and Section 7 as a Holder) from and against any
loss, claim, damage or liability, joint or several or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of Securities or Exchange Securities), to
which that Holder may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming a part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and shall reimburse each Holder promptly upon demand for any
legal or other expenses reasonably incurred by that Holder in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company and
the Subsidiary Guarantors shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, an untrue statement or alleged untrue statement in or omission or
16
alleged omission from any of such documents in reliance upon and in conformity
with any Holders' Information; and provided further, however, that with respect
to any such untrue statement in or omission from any related preliminary
prospectus, the indemnity agreement contained in this Section 6(a) shall not
inure to the benefit of any Holder from whom the person asserting any such loss,
claim, damage, liability or action received Securities or Exchange Securities
to the extent that such loss, claim, damage, liability or action of or with
respect to such Holder results from the fact that both (A) a copy of the final
prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities or Exchange Securities to such
person and (B) the untrue statement in or omission from the related preliminary
prospectus was corrected in the final prospectus unless, in either case, such
failure to deliver the final prospectus was a result of non-compliance by the
Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Company, the Subsidiary Guarantors,
their affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Company or
any such Subsidiary Guarantor, as the case may be, within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6 (b) and Section 7 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming a part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Holders' Information furnished to the Company or
any Subsidiary Guarantor by such Holder, and shall reimburse the Company or
such Subsidiary Guarantor, as the case may be, for any legal or other expenses
reasonably incurred by the Company or such Subsidiary Guarantor, as the case may
be, in connection with investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that no such Holder shall be liable for any indemnity claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Securities or Exchange Securities pursuant to such Shelf Registration Statement.
17
(c) Promptly after receipt by an indemnified party under this
Section 6 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
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided further, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party 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. 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 under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
18
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any 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 or claims that were raised or could
have been raised by such plaintiff in such proceeding.
7. Contribution. If the indemnification provided for in
Section 6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Subsidiary
Guarantors from the offering and sale of the Securities and the Exchange Offer,
on the one hand, and a Holder with respect to the sale by such Holder of
Securities or Exchange Securities on the other, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Subsidiary Guarantors on the one hand and such Holder on the other with respect
to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Subsidiary
Guarantors on the one hand and a Holder on the other with respect to such
offering and such sale shall be deemed to be in the same proportion as the
aggregate principal amount of Existing Notes received by the Company in exchange
for the Securities on the one hand bear to the total proceeds received by such
Holder with respect to its sale of Securities or Exchange Securities on the
other. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
19
omission or alleged omission to state a material fact relates to the Company and
the Subsidiary Guarantors or information supplied by the Company and the
Subsidiary Guarantors on the one hand or to any Holders' Information supplied by
such Holder on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 7 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 7
shall be deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, an indemnifying party that is
a Holder of Securities or Exchange Securities shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities or Exchange Securities sold by such indemnifying party to any
purchaser exceeds the amount of any damages which such indemnifying party has
otherwise paid or become liable to pay by reason of any 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.
8. Rules 144 and 144A. So long as Transfer Restricted
Securities remain outstanding, after July 26, 2001, the Company shall use its
reasonable best efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, will upon the written request of
any Holder of Transfer Re stricted Securities, make publicly available other
information so long as necessary to permit sales of such Holder's securities
pursuant to Rules 144 and 144A. So long as Transfer Restricted Securities remain
outstanding, the Company covenants that after July 26, 2001 it will take such
further action as any Holder of Transfer Restricted Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rules 144 and 144A
(including, without limitation, the requirements of Rule 144A(d)(4)). So long as
Transfer Restricted Securities remain outstanding, upon the written request of
any Holder of Transfer Restricted Securities, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
20
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. 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 obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate principal amount of the Securities and the
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 10(b), which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under
the Indenture; and
21
(2) if to the Company or any Subsidiary Guarantor,
initially at the address of the Company set forth in the Indenture.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one business
day after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding
upon the Company and the Subsidiary Guarantors and their successors and assigns.
(d) Counterparts. This Agreement may be executed in any number
of counterparts (which may be delivered in original form or by telecopier) 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.
(e) Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Company, the
Subsidiary Guarantors or by any Holder of any of their obligations under this
Agreement, each Holder, the Company or each Subsidiary Guarantor, as the case
may be, in addition to being entitled to exercise all rights granted by law,
including recovery of damages (other than the recovery of damages for a breach
by the Company or such Subsidiary Guarantors, as the case may be, of its
obligations under Sections 1 or 2 hereof for which Additional Interest has been
paid pursuant to Section 3 hereof), will be entitled to specific performance of
its rights under this Agreement. The Company, each Subsidiary Guarantor and each
Holder agree that monetary damages would not be adequate compensation for any
22
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agree that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
(i) No Inconsistent Agreements. The Company and each of the
Subsidiary Guarantors represents, warrants and agrees that (i) it has not
entered into, shall not, on or after the date of this Agreement, enter into any
agreement that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof, (ii) it has not
previously entered into any agreement granting any registration rights with
respect to any of its debt securities to any person, except for such agreements
where the Company has complied and is in compliance with its registration
obligations to date, and (iii) without limiting the generality of the foregoing,
so long as Transfer Restricted Securities remain outstanding, without the
written consent of the Holders of a majority in aggregate principal amount of
the then outstanding Transfer Restricted Securities, it shall not grant to any
person the right to request the Company to register any debt securities of the
Company under the Securities Act unless the rights so granted are not, in
conflict or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor any
of its security holders (other than the Holders of Transfer Restricted
Securities in such capacity) shall have the right to include any securities of
the Company in any Shelf Registration or Registered Exchange Offer other than
Transfer Restricted Securities.
(k) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
23
(l) Notice of Limitation of Liability. A copy of the Agreement
and Declaration of Trust of each Fidelity fund or series investment company
(each, a "Fund") that is a Massachusetts business trust is on file with the
Secretary of State of The Commonwealth of Massachusetts and notice is hereby
given that this Agreement is executed on behalf of the Trustees of the relevant
Fund as Trustees and not individually and that the obligations of this Agreement
are not binding upon any of the Trustees, officers or shareholders of the Fund
individually but are binding only upon the assets property of such Fund.
24
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Holders.
Very truly yours,
RITE AID CORPORATION,
By:__________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Executive Vice
President, General Counsel
and Assistant Secretary
THRIFTY PAYLESS, INC., as a
Subsidiary Guarantor,
By:__________________________________
Name:
Title:
EACH OF THE SUBSIDIARY
GUARANTORS LISTED ON SCHEDULE
A HERETO,
By:__________________________________
Name:
Title: Authorized Signatory
25
Accepted:
HOLDERS OF THE SECURITIES
By: State Street Bank and Trust Company, on behalf of the
Holders in its capacity
as Trustee,
By:___________________________
Name:
Title:
26
SCHEDULE I
Exchanging Holders
1. Fidelity Xxxxxxx Street Trust: Fidelity Asset Manager: Growth
2. Fidelity Xxxxxxx Street Trust: Fidelity Asset Manager: Income
3. Fidelity Devonshire Trust: Fidelity Equity-Income Fund
4. Fidelity Advisor Series I: Fidelity Advisor Asset Allocation Fund
5. Fidelity Advisor Series II: Fidelity Advisor High Income Fund
6. Fidelity Advisor Series II: Fidelity Advisor High Yield Fund
7. Fidelity Xxxxxxx Street Trust: Fidelity Asset Manager: Aggressive
8. Fidelity Xxxxxxx Street Trust: Fidelity Asset Manager
9. Fidelity Puritan Trust: Fidelity Balanced Fund
10. Fidelity Summer Street Trust: Fidelity Capital & Income Fund
11. Fidelity Fixed-Income Trust: Fidelity High Income Fund
12. Variable Insurance Products Fund: Equity-Income Portfolio
13. Variable Insurance Products Fund III: Balanced Portfolio
14. Fidelity Canadian Balanced Fund
15. Fidelity Global Asset Allocation Fund
16. Commonwealth of Massachusetts Pension Reserve Investment Management Board
17. Fidelity Management Trust Company, as Trustee for the Fidelity Group Trust
for Employee Benefit Plans, Fidelity High Yield Collective Trust
18. Pension Investment Committee of General Motors for General Motors Employees
Domestic Group Pension Trust
27
SCHEDULE A
Subsidiary Guarantors
000 Xxxxxxxx Xxxxxx Norfolk, LLC
0000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx, LLC
0000 Xxxxxxx Xxxx-Brooklyn Inc.
1740 Associates, LLC
0000 Xxxxxx Xxxx Xxxx-Xxxxxxxxxx Corp.
0000 Xxxxxxxxxxxx Xxxxxx Xxxx-Xxxxxxxxxxxx Xxxx, Inc.
5277 Associates, Inc.
000 Xxx Xxxxxx Corporation
5600 Superior Properties, Inc.
000-000 Xxxxxxxx Xx. Corp.
000 Xxxxx Xxxxxxxx-Xxxxxx, Xxxx, LLC
Xxx & Government Streets-Mobile, Alabama, LLC
Apex Drug Stores, Inc.
Baltimore/Annapolis Boulevard & Governor Xxxxxx Xxx-Glen Burnie, MD, LLC
Broadview and Wallings-Broadview Heights Ohio, Inc.
Central Avenue and Main Street-Petal, MS, LLC
Dominion Action Four Corporation
Dominion Action One Corporation
Dominion Action Three Corporation
Dominion Action Two Corporation
Dominion Drug Stores Corporation
Drug Fair of PA, Inc.
Drug Fair, Inc.
Eagle Managed Care Corp.
Eighth and Water Streets-Ulrichsville, Ohio, LLC
England Street-Asheland Corporation GDF, Inc.
Gettysburg and Xxxxxx-Dayton, Ohio, LLC
Gratiot & Center-Saginaw Township, Michigan, LLC
Harco, Inc.
Xxxxx Xxxxxx Xxxxxx Corporation
K&B Alabama Corporation
K&B Florida Corporation
K&B Louisiana Corporation
K&B Mississippi Corporation
K&B Services, Inc.
K&B Tennessee Corporation
K&B Texas Corporation
28
K&B Trainees, Inc.
K&B, Incorporated
Xxxx & Xxxxxxxx, Incorporated
Keystone Centers, Inc.
Lakehurst and Broadway Corporation
Xxxxxxxx & Chillicothe Roads-Chesterland, LLC
Xxxxxx & Xxxxxxx LLC
Name Rite, LLC
Northline & Xxx-Xxxxxx-Southgate, LLC
Ocean Acquisition Corporation
P.L.D. Enterprises, Inc.
Xxxxxx Drive and Navy Boulevard Property Corporation
Paw Paw Lake Road & Paw Paw Avenue-Coloma, Michigan, LLC
PDS-1 Michigan, Inc.
Perry Distributors, Inc.
Perry Drug Stores, Inc.
PL Xpress, Inc.
Portfolio Medical Services, Inc.
Rack Rite Distributors, Inc.
Ram-Utica, Inc.
RDS Detroit, Inc.
Reads, Inc.
Rite Aid Drug Palace, Inc.
Rite Aid Hdqtrs. Corp.
Rite Aid of Alabama, Inc.
Rite Aid of Connecticut, Inc.
Rite Aid of Delaware, Inc.
Rite Aid of Florida, Inc.
Rite Aid of Georgia, Inc.
Rite Aid of Illinois, Inc.
Rite Aid of Indiana, Inc.
Rite Aid of Kentucky, Inc.
Rite Aid of Maine, Inc.
Rite Aid of Maryland, Inc.
Rite Aid of Massachusetts, Inc.
Rite Aid of Michigan, Inc.
Rite Aid of New Hampshire, Inc.
Rite Aid of New Jersey, Inc.
Rite Aid of New York, Inc.
Rite Aid of North Carolina, Inc.
Rite Aid of Ohio, Inc.
Rite Aid of Pennsylvania, Inc.
29
Rite Aid of South Carolina, Inc.
Rite Aid of Tennessee, Inc.
Rite Aid of Vermont, Inc.
Rite Aid of Virginia, Inc.
Rite Aid of Washington, D.C., Inc.
Rite Aid of West Virginia, Inc.
Rite Aid Realty Corp.
Rite Aid Rome Distribution Center, Inc.
Rite Aid Transport, Inc.
Rite Aid Venturer #1, Inc.
Rite Fund, Inc.
Rite Investments Corporation
RX Choice, Inc.
Script South
Seven Mile and Evergreen-Detroit, LLC
Silver Springs Road-Baltimore, Maryland/One, LLC
Silver Springs Road- Baltimore, Maryland/Two, LLC
Sophie One Corp.
State & Fortification Streets-Jackson, Mississippi, LLC
State Street and Hill Road-Xxxxxx, Ohio, LLC
Super Distributors, Inc.
Super Ice Cream Suppliers, Inc.
Super Laboratories, Inc.
Super Pharmacy Network, Inc.
Super Tobacco Distributors, Inc.
The Lane Drug Company
The Xxxx Company
Thrifty Corporation
Thrifty Payless, Inc.
Thrifty Wilshire, Inc.
Tyler and Xxxxxxx Roads, Birmingham-Alabama, LLC
Virginia Corporation
W.R.A.C., Inc.
Fairground, LLC
Xxxxxxxxxx'x Enterprises, Inc.
Leader Drugs, Inc.
30
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the [Closing Date] (as defined herein), it
will make this prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
31
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
32
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. This prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Securities where such Securities were
acquired as a result of market-making activities or other trading activities.
The Company has agreed that, for a period of 180 days after the [Closing Date],
it will make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
_______________, 200_, all dealers effecting transactions in the Exchange
Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registered Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the [Closing Date] the Company
will promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including, any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
