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Exhibit C
REGISTRATION RIGHTS AGREEMENT
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Registration Rights Agreement, dated as of
December 1, 1995, by and among Dairy Mart Convenience
Stores, Inc., a Delaware corporation (the "Company"), and
holders (each a "Holder" and collectively, the "Holders") of
(i) the Company's 10-1/4% Senior Subordinated Notes
(Series B), due March 15, 2004 (the "Series B Notes") and
(ii) warrants to purchase shares of Class A Common Stock,
par value $.01 per share, of the Company (the "Warrants").
W I T N E S S E T H :
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BACKGROUND. This Agreement is entered into in
connection with (A) the several Note and Warrant Purchase
Agreements, dated as of December 1, 1995, among the Company
and each of the purchasers, respectively (the "Purchasers")
listed on Schedule I (the "Schedule of Purchasers") thereto
(the "Purchase Agreement"), relating to the issuance and
sale by the Company of an aggregate of U.S. $13,500,000 of
the Series B Notes and Warrants to purchase an aggregate of
1,215,000 shares of the Class A Common Stock, (B) the
Consent Agreement, dated as of December 1, 1995, by and
among the Company and the consenting noteholders (the
"Consenting Noteholders") listed in Schedule A thereto (the
"Consent Agreement"), relating to the waiver of certain
defaults and the consent to certain amendments to the
Indenture, dated as of March 3, 1994, by and among the
Company, the Guarantors (as defined therein) and Society
National Bank, as trustee, as supplemented (the "Original
Indenture"). In order to induce the Purchasers to enter
into the Purchase Agreement and to induce the Consenting
Noteholders to enter into the Consent Agreement, the Company
has agreed to provide the registration rights set forth in
this Agreement for the equal benefit of all Holders from
time to time of Registrable Securities (as hereinafter
defined). The execution and delivery of this Agreement is a
condition precedent to each such Purchaser's obligation to
purchase the Series B Notes and Warrants pursuant to the
Purchase Agreement and each such Consenting Noteholder's
obligation to deliver a waiver and consent pursuant to the
Consent Agreement.
NOW, THEREFORE, in consideration of the premises
and the covenants hereinafter contained, it is agreed as
follows:
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ARTICLE I
1.1. DEFINITIONS. The following shall have
(unless otherwise provided elsewhere in this Registration
Rights Agreement) the following respective meanings (such
meanings being equally applicable to both the singular and
plural form of the terms defined):
"Agreement" shall mean this Registration Rights
Agreement, including all amendments, modifications and
supplements and any exhibits or schedules to any of the
foregoing, and shall refer to the Agreement as the same may
be in effect at the time such reference becomes operative.
"Business Day" shall mean any day that is not a
Saturday, a Sunday or a day on which banks are required or
permitted to be closed in the State of Connecticut. Unless
specifically stated herein as a Business Day, all days
referred to herein shall mean calendar days.
"Commission" shall mean the Securities and
Exchange Commission or any other federal agency then
administering the Securities Act and other federal
securities laws.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, or any similar federal statute, and
the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Holders" has the meaning set forth in the
introductory paragraph hereto.
"NASD" shall mean the National Association of
Securities Dealers, Inc., or any successor corporation
thereto.
"Registrable Debt Securities" shall mean (a) the
Series B Notes; (b) any other securities issued in exchange
for or substitution of any Series B Notes; and (c) any
securities issued or issuable with respect to the Series B
Notes or any other securities issued or issuable in exchange
for or substitution of any such Series B Notes in connection
with a combination, recapitalization, merger, consolidation
or other reorganization or otherwise; PROVIDED that any such
securities shall cease to be Registrable Debt Securities
with respect to a proposed offer or sale thereof when a
Registration Statement with respect to the sale of such
securities shall have become effective under the Securities
Act and such securities have been disposed of in accordance
with the plan of distribution set forth in such Registration
Statement or when they shall have been distributed to the
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public pursuant to Rule 144, Rule 144A or any successor
provisions under the Securities Act.
"Registrable Equity Securities" shall mean (a) the
Warrants, (b) any securities, including without limitation,
any Class A Common Stock, issued or issuable upon exercise
of the Warrants, (c) any securities issued or issuable with
respect to the Warrants or any securities issued or issuable
upon exercise of the Warrants, by way of a dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other
reorganization or otherwise; PROVIDED that any such
Registrable Equity Securities shall cease to be Registrable
Equity Securities (i) with respect to a proposed offer or
sale thereof when a Registration Statement with respect to
the sale of such securities shall have become effective
under the Securities Act and such securities have been
disposed of in accordance with the plan of distribution set
forth in such Registration Statement, (ii) when they shall
have been distributed to the public pursuant to Rule 144,
Rule 144A or any successor provisions under the Securities
Act, or (iii) with respect to any Warrant, if and when such
Warrant is exercised or terminates by its terms without
having been exercised; PROVIDED that the securities issued
or issuable upon exercise of any Warrant shall not cease to
be "Registrable Equity Securities" by reason of such
exercise of a Warrant.
"Registrable Securities" shall mean, collectively,
the Registrable Debt Securities and the Registrable Equity
Securities.
"Registration Expenses" shall mean all expenses
incident to the Company's performance of or compliance with
Article II or Article III hereof, including, without
limitation: (i) all Commission and stock exchange or NASD
registration and filing fees and expenses; (ii) all fees and
expenses of compliance with applicable state securities or
"blue sky" laws (including, without limitation, reasonable
fees and disbursements of counsel for the underwriters in
connection with "blue sky" qualification of any Registrable
Security); (iii) all word processing, duplicating, printing
expenses, messenger and delivery expenses; (iv) all fees and
expenses incurred in connection with the listing of the
Registrable Securities to be registered on each securities
exchange or national market system on which such securities
are listed; (v) all fees and disbursements of counsel for
the Company and all independent certified public accountants
(including the expenses of any annual audit and "cold
comfort" letters required by or incident to such performance
and compliance); (vi) all fees and disbursements of
underwriters customarily paid by issuers or sellers of
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securities (including the fees and expenses of any
"qualified independent underwriters" required by the NASD);
(vii) the reasonable fees and expenses of one counsel
retained in connection with each such registration by each
of the Holders of a majority of the Registrable Securities
being registered; (viii) the fees and expenses of any
special experts retained by the Company; (ix) fees and
expenses of any other persons retained by the Company; and
(x) premiums and other costs of policies of insurance
against liabilities arising out of the public offering of
the Registrable Securities being registered. The foregoing
shall not include any underwriting discounts or commissions
or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable
Securities if obtained at the discretion of the Company.
"Registration Statement" shall mean each
registration statement filed with the Commission pursuant to
the provisions provided herein and all amendments and
supplements to such registration statement, including post-
effective amendments, in each case including the prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute, and the
rules and regulations of the Commission thereunder, all as
the same shall be in effect from time to time.
"Shelf Registration Statement" shall mean a
"shelf" registration statement with respect to Registrable
Securities on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by
the Commission, and all amendments and supplements to such
registration statement, including post-effective amendments,
in each case including the prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"Trust Indenture Act" shall mean the Trust
Indenture Act of 1939, as amended, or any similar federal
statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to
time.
"Underwritten Offering" shall mean a sale of
securities of the Company to an underwriter or underwriters
for reoffering to the public.
"Warrants" has the meaning set forth in the
introductory paragraph hereto.
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1.2. CONSTRUCTION. Unless the context otherwise
requires, "or" is not exclusive.
ARTICLE II
2.1. SHELF REGISTRATION. The Company shall file
within 90 calendar days of the date hereof one or more Shelf
Registration Statements providing for the sale by the
Holders of all of the Registrable Securities. The Company
shall use its best efforts to have such Shelf Registration
Statement declared effective by the Commission as soon as
practicable after such filing. The Company shall use its
best efforts to keep the Shelf Registration Statement
continuously effective for a period of at least three years
following the date on which such Shelf Registration
Statement is initially declared effective or such shorter
period which will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement. The
Company further agrees, if necessary, to supplement or amend
the Shelf Registration Statement, if required by, or
appropriate under, the rules, regulations or instructions
applicable to the registration form used by the Company for
such Shelf Registration Statement or by the Securities Act
or by any other rules and regulations thereunder.
2.2. REQUIRED REGISTRATION. (a) From and after
the expiration of the Shelf Registration Statement provided
for in Section 2.1, after receipt of a written request from
(x) the Holders of Registrable Equity Securities
representing at least an aggregate of 50% of the total of
all Registrable Equity Securities outstanding or (y) the
Holders of Registrable Debt Securities representing at least
an aggregate of 50% of the total of all Registrable Debt
Security outstanding, requesting that the Company effect the
registration of such Registrable Securities under the
Securities Act, the Company shall promptly give written
notice, pursuant to Section 2.2(c) hereof, to the Holders of
such Registrable Equity Securities or Registrable Debt
Securities, as the case may be, of the receipt of such
request and each such other Holder, in lieu of exercising
its rights under Section 2.3, may elect (by written notice
sent to the Company within ten Business Days from the date
of such Holder's receipt of the aforementioned notice) to
have such Registrable Equity Securities or Registrable Debt
Securities, as the case may be, held by it included in such
registration thereof pursuant to this Section 2.2.
Thereupon the Company shall, as expeditiously as is possible
and subject to the other terms and conditions of this
Agreement, file with the Commission a Registration Statement
under the Securities Act in accordance with Section 2.5
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covering the Registrable Securities requested to be included
in such registration, and the Company will use its best
efforts to cause such Registration Statement to become
effective as expeditiously as practicable.
(b) FORM OF REQUEST. (i) All requests for
registration pursuant to this Section 2.2 of any Holder
shall (A) describe the number and class of Registrable
Securities to be sold, (B) contain an undertaking to furnish
all such information and materials of such Holder and to
take all such action as may be reasonably required by such
Holder in order to permit the Company to comply with all
applicable requirements of the Commission and to obtain
acceleration of the effective date of the Registration
Statement; update, to the extent required by applicable law,
any information about such Holder contained in such
Registration Statement during the period such Registration
Statement is effective; and indicate whether such request
pertains to an Underwritten Offering.
(ii) As a condition precedent to the
inclusion of Registrable Securities owned by or
issuable to any Holder that has not executed a copy of
this Agreement in any registration, such Holder's
request for registration pursuant to this Section 2.2
shall in addition to the information required by
subparagraph (i) of this subsection (b) contain an
undertaking to comply with all provisions of this
Agreement.
(c) RIGHTS OF OTHER HOLDERS. If the Company
shall receive a request to file a Registration Statement
pursuant to Section 2.2(a), the Company shall (A) give
written notice within 10 Business Days of such request to
the other Holders of the Registrable Securities to be
subject to the Registration Statement, which notice shall
identify the number and type of Registrable Securities
proposed to be registered by such Holder, and (B) use its
best efforts to include in such offering, subject to Section
2.2(f), Registrable Securities subject to such registration
as are owned by or issuable to each Holder as such Holder
shall request within 20 Business Days after the date of such
notice from the Company.
(d) LIMITATIONS ON FILING. Notwithstanding the
foregoing provisions of this Section 2.2, the Company shall
not be obligated to file a registration statement pursuant
to this Section 2.2 during any 180 day period following the
date on which a prior Registration Statement filed pursuant
to this Section 2.2 becomes effective. The Company shall be
obligated to effect, pursuant to this Section 2.2, no more
than two (2) registrations required to be effected by
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Holders of Registrable Equity Securities and no more than
two (2) registrations required to be effected by Holders of
Registrable Debt Securities pursuant to this Section 2.2.
(e) EFFECTIVE REGISTRATION STATEMENT. A
registration requested pursuant to this Section 2.2 will not
be deemed to have been effected (i) unless it has become
effective, PROVIDED that a registration which does not
become effective after the Company has filed a Registration
Statement with respect thereto solely by reason of the
refusal to proceed of the Holders initiating such request
shall be deemed to have been effected by the Company at the
request of such Holders, unless such Holders shall have
elected to pay all Registration Expenses in connection with
such registration, (ii) if, after it has become effective,
such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission
or other governmental agency or court, or (iii) if the
conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such
registration are not satisfied.
(f) UNDERWRITING PROCEDURES. If the Holders of a
majority of the Registrable Securities subject to a
registration requested pursuant this Section 2.2 so elect,
the offering of all or a portion of such Registrable
Securities shall be in the form of an Underwritten Offering.
The managing underwriter or underwriters for such offering
shall be selected by such Holders, and shall be reasonably
acceptable to the Company. The Holders shall provide the
Company with notice of the identity or identities of the
managing underwriter or underwriters they have selected
within a reasonable time prior to the commencement of the
Underwritten Offering. If the managing underwriter advises
in writing that, in its opinion the number of securities to
be included in such registration exceeds the number which
can be sold in such offering, the Company will include in
such registration Registrable Securities requested to be
included, PRO RATA among the Holders thereof.
2.3. INCIDENTAL REGISTRATION. (a) (i) If the
Company at any time proposes to register any of its equity
securities under the Securities Act, on its behalf and/or on
behalf of any of its security holders ("the demanding
security holders") (other than a registration pursuant to
Section 2.1 or 2.2 or registration on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction
of the type referred to in Rule 145 under the Securities Act
or to employees of the Company pursuant to any employee
benefit plan, respectively), on a form and in a manner that
would permit registration of the Registrable Equity
Securities for sale to the public under the Securities Act,
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it will give written notice to all Holders of such
Registrable Equity Securities promptly of its intention to
do so, describing such securities and specifying the form
and manner and the other relevant facts (including, without
limitation, (x) whether or not such registration will be in
connection with an Underwritten Offering and, if so, the
identity of the managing underwriter and whether such
offering will be pursuant to a "best efforts" or "firm
commitment" underwriting, and (y) the price (net of
underwriting commissions, discounts and the like) at which
the securities are reasonably expected to be sold).
(ii) If the Company at any time proposes to
register any of its debt securities under the Securities
Act, on its behalf and/or on behalf of any of its security
holders ("the demanding security holders") (other than a
registration pursuant to Section 2.1 or 2.2) on a form and
in a manner than would permit registration of the
Registrable Debt Securities for sale to the public under the
Securities Act, it will give written notice to all Holders
of such Registrable Debt Securities promptly of its
intention to do so, describing such securities and
specifying the form and manner and the other relevant facts
(including, without limitation, (x) whether or not such
registration will be in connection with an Underwritten
Offering and, if so, the identity of the managing
underwriter and whether such offering will be pursuant to a
"best efforts" or "firm commitment" underwriting, and (y)
the price (net of underwriting commissions, discounts and
the like) at which the securities are reasonably expected to
be sold).
(b) Each Holder of any such Registrable
Securities desiring to have Registrable Securities
registered under this Section 2.3 shall advise the Company
in writing within 20 Business Days after the date of such
notice from the Company, setting forth the amount of such
Registrable Securities for which registration is requested.
The Company shall thereupon include in such filing the
number of shares of Registrable Securities for which
registration is so requested, subject to the next sentence,
and shall use its best efforts to effect registration under
the Securities Act of such securities. If, in an
Underwritten Offering, the managing underwriter shall advise
the Company in writing that, in its opinion, the number of
securities proposed to be included in such registration must
be limited due to market considerations, then the Company
will include in such registration to the extent of the
number which the Company is so advised can be sold in such
offering securities determined as follows:
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(i) if such registration as initially
proposed by the Company was solely a primary
registration of its securities, (x) first, the
securities proposed by the Company to be sold for its
own account, and (y) second, any Registrable Securities
requested to be included in such registration PRO RATA
among the Holders thereof requesting such registration
on the basis of the number of shares of such securities
requested to be included by such holders, and (z) third
any other securities of the Company proposed to be
included in such registration, in accordance with the
priorities, if any, then existing among the Company and
the holders of such other securities, and
(ii) if such registration as initially
proposed by the Company was in whole or in part
requested by holders of securities of the Company,
other than holders of Registrable Securities, pursuant
to demand registration rights, (x) first, such
securities held by the holders initiating such
registration, PRO RATA among the holders thereof, on
the basis of the number of shares of such securities
requested to be included by such holders, (y) second,
any Registrable Securities requested to be included in
such registration and any other securities proposed to
be sold by the Company in such registration), PRO RATA
among the holders thereof requesting such registration
and the Company on the basis of the number of shares of
such securities requested to be included by such
holders and the shares to be sold by the Company and
(z) third, any other securities of the Company proposed
to be included in such registration, in accordance with
the priorities, if any, then existing among the Company
and the holders of such other securities.
(c) If any registration under Sections 2.1 or 2.2
or this Section 2.3 involves an Underwritten Offering, all
Holders requesting inclusion of Registrable Securities must
sell their Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as
apply to the Company or other selling security holders
participating in such registration. No registration under
this Section 2.3 shall relieve the Company of its
obligations to effect any registration pursuant to Section
2.2 hereof.
(d) In connection with an Underwritten Offering
with respect to which Holders of Registrable Securities
shall have requested registration pursuant to this Section
2.3, the Company shall have the right to select the managing
underwriter. The Holders of Registrable Securities to be
distributed to the underwriter or underwriters shall be
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parties to the underwriting agreement between the Company
and such underwriter(s) and the representations and
warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriter(s) shall
also be made to and for the benefit of the Holders and the
conditions precedent to the obligations of such Holders of
Registrable Securities under such underwriting agreement
shall be reasonably satisfactory to such Holders. Such
Holders shall not be required to make any representations or
warranties to the Company or its underwriter(s) other than
representations or warranties regarding such Holder and such
Holder's intended method of distribution, the ownership of
Registrable Securities to be distributed to the underwriter
or underwriters and any other information required to be
included in the applicable Registration Statement in respect
of such Holders pursuant to applicable law.
(e) Notwithstanding anything in this Section 2.3
to the contrary, if, at any time after giving written notice
as described in Section 2.3(a) of its intention to register
securities and prior to the effective date of the
Registration Statement filed in connection with such
registration, the Company shall determine either not to
register or to discontinue registration of such securities,
the Company may, at its election, give written notice of
such determination to each Holder of Registrable Securities
and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration (but not from its obligation to pay the
Registrable Expenses in connection therewith).
2.4. RIGHT TO REVIEW REGISTRATION STATEMENTS.
(a) In connection with the preparation and prior to the
filing of each Registration Statement under the Securities
Act under which Registrable Securities are or are proposed
to be registered, the Company will give the holders of
Registrable Securities registered under such Registration
Statement, and their respective counsel and accountants, the
opportunity to review and comment upon such Registration
Statement, each prospectus included therein or filed with
the Commission and each amendment thereof or supplement
thereto, and will give each of them such access to its books
and records and such opportunities to discuss the business
of the Company with its officers and the independent public
accountants who have certified its financial statements as
shall be necessary, in the opinion of such Holders' and such
underwriters' respective counsel to conduct a reasonable
investigation within the meaning of the Securities Act.
(b) Each such Holder of Registrable Securities
shall have the right to review and comment upon such
Registration Statement and to request the insertion therein
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of material furnished to the Company in writing which in the
judgment of such Holder (a "Requesting Holder") of
Registrable Securities should be included; PROVIDED,
HOWEVER, such information shall not be required to be
included if in the reasonable opinion of counsel of the
Company, the inclusion of such material furnished by such
Requesting Holder would be misleading or otherwise in
violation of the rules and regulations of the Securities
Act. Furthermore, a Requesting Holder has the right to
require the deletion of any reference to such Requesting
Holder by name or otherwise if such reference is not
required by the Securities Act or the rules promulgated
thereunder.
(c) The Company will not file any Registration
Statement (including any amendment thereto, any prospectus,
any supplement thereto including such documents incorporated
by reference and proposed to be filed after the initial
filing of the Registration Statement) to which the holders
of at least a majority of the securities (including
Registrable Securities) covered by such Registration
Statement or the underwriter or underwriters, if any, shall
reasonably object; PROVIDED that the Company may file such
document in a form required by law or upon the advice of its
counsel.
2.5. REGISTRATION PROCEDURES. In connection with
the registration of any of its securities under the
Securities Act effected pursuant to the requirements of this
Agreement, the Company will, as expeditiously as possible
and subject to the other terms and conditions of this
Agreement:
(a) notify each Holder of Registrable Securities
as to the filing of a Registration Statement covering
securities of that Holder, and of all amendments or
supplements thereto filed prior to the effective date of
such Registration Statement;
(b) notify each Holder of Registrable Securities
covered by a Registration Statement promptly after it shall
receive notice thereof, of the time when said Registration
Statement becomes effective or when any amendment or
supplement to any prospectus forming a part of said
Registration Statement has been filed;
(c) notify each Holder of Registrable Securities
covered by a Registration Statement promptly of any request
by the Commission for the amending or supplementing of such
Registration Statement or prospectus or for additional
information;
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(d) prepare and promptly file with the Commission
amendments and supplements to such Registration Statement
and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective as
required hereby and to comply with the provisions of the
Securities Act with respect to the sale or other disposition
of all securities covered by such Registration Statement
(including, without limitation, as may be necessary to
correct any statements or omissions if, at any time when a
prospectus relating to the Registrable Securities is
required to be delivered under the Securities Act, any event
with respect to the Company shall have occurred as a result
of which any such prospectus or any other prospectus as then
in effect would include an untrue statement of a material
fact or omit to state any material fact necessary in order
to make the statements made, in light of the circumstances
under which they were made, not misleading); and, in
addition, prepare and file with the Commission, promptly
upon the written request of any Holder of Registrable
Securities, any amendments or supplements to such
Registration Statement or prospectus which may be reasonably
necessary or advisable in connection with the distribution
of the Registrable Securities;
(e) furnish each Holder, as soon as available,
such number of copies of each Registration Statement, in
conformity with the requirements of the Securities Act, and
such other documents, as such selling Holders may from time
to time reasonably request;
(f) use its best efforts to register or qualify
the securities covered by such Registration Statement under
such securities or blue sky laws of such jurisdictions
within the United States and Puerto Rico as each holder of
such securities shall request (PROVIDED, HOWEVER, that the
Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any
jurisdiction in which it is not then qualified or to file
any general consent to service or process), and do such
other reasonable acts and things as may be required of it to
enable such holder to consummate the disposition in such
jurisdiction of the securities covered by such Registration
Statement;
(g) in the case of the registration of the
Registrable Debt Securities, the Company shall use its best
efforts to qualify the indenture under which such securities
were issued (the "Indenture") under the Trust Indenture Act;
(h) enter into customary agreements (including an
underwriting agreement in customary form in the case of an
underwritten offering of Registrable Equity Securities) and
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take such other actions as are reasonably required by the
Holders of Registrable Securities or the underwriters, if
any, in order to expedite or facilitate the disposition of
such Registrable Securities (including, without limitation,
providing for the benefit of the Holders the representations
and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriter(s));
(i) comply with all applicable rules and
regulations of the Commission, and make generally available
to its security holders, earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the
Securities Act) no later than forty-five (45) days after the
end of any 12-month period (or ninety (90) days after the
end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to an underwriter or to
underwriters in a firm commitment or best efforts
Underwritten Offering and (ii) if not sold to an underwriter
or to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company after
the effective date of the relevant Registration Statement,
which statements shall cover said 12-month periods;
(j) advise each Holder of Registrable Securities
promptly after the Company shall receive notice or obtain
knowledge of the issuance of any stop order by the
Commission suspending the effectiveness of any Registration
Statement or amendment thereto or of the initiation or
threatening of any proceeding for that purpose, and promptly
use its best efforts to prevent the issuance of any stop
order or obtain its withdrawal promptly if such stop order
should be issued;
(k) deliver an opinion of counsel for the Company
in customary form and covering such matters of the type
customarily covered by opinions of issuer's counsel and such
other matters as the Holders of a majority of the
Registrable Securities covered by a Registration Statement
or the underwriters reasonably request and, in the case of
an underwritten offering, deliver to the underwriters a
"cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of
the type customarily covered by such letters;
(l) prior to the effective date of a Registration
Statement, (i) provide the registrar for the Registrable
Securities with printed certificates for such securities in
a form eligible for deposit with DTC and (ii) provide a
CUSIP number for such securities; and
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(m) use its best efforts to list all Registrable
Securities covered by such registration statement on any
securities exchange on which any of the securities of the
same class as the Registrable Securities are then listed.
At its expense, the Company shall, in addition to
the requirements of Section 2.1 hereof, keep each
Registration Statement effective until the earlier of
(i) such time when all Registrable Securities covered by
such Registration Statement have been sold and (ii) 90 days
from the date the Registration Statement first becomes
effective or such longer period as may be required by the
Securities Act.
It shall be a condition precedent to the
obligation of Company to take any action pursuant to this
Agreement in respect of the securities which are to be
registered at the request of any Holder of Registrable
Securities that such Holder shall furnish to Company such
information regarding the securities held by such Holder and
the intended method of disposition thereof as Company shall
reasonably request and as shall be required in connection
with the action taken by Company.
The Company shall be entitled to postpone for a
reasonable period of time (but not exceeding 90 days) the
filing of any registration statement (other than pursuant to
Section 2.1 hereof) otherwise required to be prepared and
filed by it pursuant to this Agreement if the Company
determines, in its reasonable judgment, that such
registration and offering would materially and adversely
interfere with any material financing, acquisition,
corporate reorganization or other material transaction
involving the Company or would require premature disclosure
thereof. The Company shall promptly give the Holders of
Registrable Securities requesting registration thereof
pursuant to Section 2.2 or 2.3 hereof written notice of such
determination, containing a general statement of the reasons
for such postponement and an approximation of the
anticipated delay. If the Company shall so postpone the
filing of a registration statement, such Holders of
Registrable Securities requesting registration thereof
pursuant to Section 2.2 shall have the right to withdraw the
request for registration by giving written notice to the
Company within 10 Business Days after receipt of the notice
of postponement and, in the event of such withdrawal, such
request shall not be counted for purposes of the requests
for registration to which Holders of Registrable Securities
are entitled pursuant to Section 2.2 hereof.
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In the case of a Shelf Registration Statement,
each Holder of Registrable Securities covered thereby, upon
receipt of any notice (a "Suspension Notice") from the
Company of the happening of any event of the kind requiring
an action pursuant to Section 2.5(d) hereof, shall forthwith
discontinue disposition of the Registrable Securities
pursuant to the Shelf Registration Statement covering such
Registrable Securities until such Holder's receipt of the
copies of the supplemented or amended prospectus
contemplated by Section 2.5(d) or until it is advised in
writing (the "Advice") by the Company that the use of the
prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by
reference in the prospectus, and, if so directed by the
Company, such Holder will, or will request the managing
underwriter or underwriters, if any, to, 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 current
at the time of receipt of such notice. In the event that
the Company shall give any Suspension Notice, (i) the
Company shall use its best efforts and take such actions as
are reasonably necessary to render the Advice and end the
Suspension Period as promptly as practicable and (ii) the
time periods for which a Shelf Registration Statement is
required to be kept effective pursuant to Section 2.1 hereof
shall be extended by the number of days during the
Suspension Period.
2.6. EXPENSES. All Registrable Expenses incurred
in connection with this Agreement shall be paid by the
Company.
2.7. RULE 144, RULE 144A. The Company covenants
that it will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder in a
timely manner and, if at any time the Company is not
required to file such reports, it will, upon the reasonable
request of any Holder of Registrable Securities, make
publicly available other information so long as necessary to
permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. The Company further covenants that it will
take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell
Registrable Securities without registration under the
Securities Act within the limitation of the exemptions
provided by (a) Rule 144 and Rule 144A under the Securities
Act, as such Rules may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder of Registrable
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Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such
information requirements.
ARTICLE III
3.1. INDEMNIFICATION AND CONTRIBUTION. (a) In
the event of any registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless each Holder of
such Registrable Securities, and each other person
(including each underwriter) who participated in the
offering or sale of such Registrable Securities and each
other person, if any, who controls such Holder or such
participating person within the meaning of the Securities
Act, and their respective directors, officers, partners,
agents and affiliates (each, an "Indemnified Person")
against any losses, claims, damages or liabilities, joint or
several, to which such Indemnified Person may become subject
under the Securities Act or otherwise (including, without
limitation, the reasonable fees and expenses of legal
counsel), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue or alleged
untrue statement of any material fact contained in any
Registration Statement or any part thereof under which such
securities were registered under the Securities Act
(including, without limitation, any documents incorporated
therein by inference, any exhibits thereto, any preliminary
prospectus or final prospectus contained therein, or any
amendment or supplement thereto), or (ii) any omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse such Indemnified
Person for any legal or any other expenses reasonably
incurred by such person in connection with investigating or
defending any such loss, claim, damage, liability, action or
proceeding; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon
any alleged untrue statement or alleged omission made in
such registration statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and
in conformity with written information furnished to the
Company by such Indemnified Person specifically for use
therein or in the case of any underwritten offering, so
furnished for such purposes by any underwriter. Such
indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such
Indemnified Person, and shall survive the transfer of
securities by a Holder.
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(b) Each Holder of any Registrable Securities, by
acceptance thereof, agrees to indemnify and hold harmless
the Company, its directors and officers and each other
person, if any, who controls the Company within the meaning
of the Securities Act against any losses, claims, damages or
liabilities, severally, to which the Company or any such
director or officer or any such person may become subject
under the Securities Act or any other statute or at common
law, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of
any statement or alleged statement in or omission or alleged
omission from such Registration Statement, if such statement
or alleged statement or omission or alleged omission was
made in reliance on and in conformity with written
information furnished to the Company by such selling Holder
expressly for use in the preparation of such Registration
Statement; PROVIDED, HOWEVER, that (A) the indemnifying
Holder shall not be liable in any such case to the extent
that any such statement or omission is completely corrected
(x) in the final prospectus, in the case of a preliminary
prospectus, or (y) in an amendment or supplement to a
prospectus or prospectus supplement (PROVIDED, HOWEVER, that
nothing in this clause (y) shall limit the indemnifying
Holder's liability with respect to sales made prior to the
receipt by the Company from the indemnifying Holder of
written notice of such an untrue statement or such an
omission) and (B) the liability of such indemnifying Holder
under this Section 3.1(b) shall be limited to the amount of
proceeds received by such indemnifying Holder in the
offering giving rise to the liability.
(c) If the indemnification provided for in this
Section 7 from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault
of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission
to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent,
knowledge, access to information and opportunity to correct
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or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed
to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation
or proceeding.
(d) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section
7(c) were determined by pro rata allocation or by any other
method of allocation which does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. Each prospective selling Holder's
obligations to contribute as provided in this Section 3.1(c)
are several in proportion to the relative value of their
respective Registrable Securities covered by such
Registration and are not joint.
(e) The obligations of the Company and of each of
the Holders under this Section 3.1 shall be in addition to
any liability which the Company or which any of the Holders
may otherwise have.
(f) The indemnification and contribution payments
required by this Section 3.1 shall be made by periodic
payments of the amounts thereof during the course of the
investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
ARTICLE IV
4.1. MISCELLANEOUS. (a) NO INCONSISTENT
AGREEMENTS. The Company will not hereafter enter into any
agreement with respect to its securities which is
inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement. The Company has
not previously entered into any agreement which remains in
effect with respect to any of its securities granting any
registration rights to any person.
(b) REMEDIES. Each holder of Registrable
Securities, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason
of a breach by it of the provisions of this Agreement and
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hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(c) AMENDMENTS AND WAIVERS. Except as otherwise
provided herein, the provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents
to departure from the provisions hereof may not be given
unless the Company has obtained the written consent of, in
respect of any of the foregoing affecting the holders of
Registrable Debt Securities, holders of a majority of the
principal amount of Registrable Debt Securities then
outstanding and, in respect of the foregoing affecting the
holders of Registrable Equity Securities, holders of a
majority of the shares of Registrable Equity Securities then
outstanding and subject to unexercised Warrants.
(d) NOTICE GENERALLY. Any notice, demand,
request, consent, approval, declaration, delivery or other
communication hereunder to be made pursuant to the
provisions of this Agreement shall be sufficiently given or
made if in writing and either delivered in person with
receipt acknowledged or sent by registered or certified
mail, return receipt requested, postage prepaid, or by
telecopy and confirmed by telecopy answerback, addressed as
follows:
(i) If to any initial Holder of Registrable
Securities, as indicated on Schedule A.
(ii) If to any other Holder of Registrable
Securities at its last known address appearing on the
books of the Company maintained for such purpose.
(iii) If to the Company at
Dairy Mart Convenience Stores, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
or at such other address as may be substituted by notice
given as herein provided. The giving of any notice required
hereunder may be waived in writing by the party entitled to
receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other
communication hereunder shall be deemed to have been duly
given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by
telecopy answerback or three (3) Business Days after the
same shall have been deposited in the United States mail.
Failure or delay in delivering copies of any notice, demand,
request, approval, declaration, delivery or other
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communication to the person designated above to receive a
copy shall in no way adversely affect the effectiveness of
such notice, demand, request, approval, declaration,
delivery or other communication.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall
inure to the benefit of and be binding upon the successors
and assigns of each of the parties hereto including any
person to whom Registrable Securities are transferred;
PROVIDED that, except by operation of law, this Agreement
may not be assigned by the Company without the prior written
consent of the Holders of 66-2/3% of the Registrable
Securities at the time such consent is requested. All
references to "Holder" in this Agreement shall include any
Person for whom the Holder is a nominee, and the benefits of
and rights of this Agreement shall accrue to such Person or
Persons which have a beneficial interest in the Registrable
Securities and for whom the Holder is a nominee.
(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 the laws of the State of New York, without
regard to the provisions thereof relating to conflict of
laws.
(h) SEVERABILITY. Wherever possible, each
provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(i) ENTIRE AGREEMENT. This Agreement, represents
the complete agreement and understanding of the parties
hereto in respect of the subject matter contained herein and
therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the Company and Purchasers
have executed this Agreement as of the date first above
written.
DAIRY MART CONVENIENCE STORES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
IDS EXTRA INCOME FUND, INC.
By:
-------------------------------
Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY
By:
-------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the Company and Purchasers
have executed this Agreement as of the date first written
above.
DAIRY MART CONVENIENCE STORES, INC.
By:
-------------------------------
Name:
Title:
Address: Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
TRIUMPH-CONNECTICUT LIMITED
PARTNERSHIP
By: Triumph-Connecticut Capital Advisors
Limited Partnership
Its: General Partner
By: Xxxxxxxxx X. XxXxxxxx
Its: Managing General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Designated Signatory
Address: 00 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
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SCHEDULE A
----------
Number of Class A
Principal Amount of Common Shares
Name of Purchaser Subordinated Notes Subject to Warrants
----------------- ------------------ -------------------
IDS Extra Income $2,000,000 180,000
Fund, Inc.
000 Xxxxxxxxx Xxx.
Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
SunAmerica Life $3,000,000 270,000
Insurance Company
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxx
Triumph - Connecticut $8,500,000 765,000
Limited Partnership
00 Xxxxx Xxxxxx - 00xx Xx.
Xxxxxx, XX 00000
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