REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 27, 2001
By and Between
RITE AID CORPORATION
and
THE INVESTORS INDICATED
ON THE SIGNATURE PAGE HERETO
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of June 27, 2001, by and between RITE AID CORPORATION, a
Delaware corporation (the "Company"), and the entities listed on the signature
page hereto (the "Exchanging Holders").
W I T N E S S E T H:
WHEREAS, the Company has agreed to issue to the Exchanging
Holders a warrant, dated June 27, 2001 (the "Warrant"), to purchase up to
3,000,000 shares (the "Warrant Shares") of the Company's Common Stock, par value
$1.00 per share (the "Common Stock"), in accordance with the terms thereof;
WHEREAS, in connection with the issuance of the Warrant to the
Exchanging Holders, the Company has agreed to provide to the holders of the
Warrant and the Warrant Shares the registration rights set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto hereby agree as
follows:
ARTICLE I
Certain Definitions
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
1.1 "Commission" shall mean the Securities and Exchange
Commission or any federal agency at the time administering the Securities Act.
1.2 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any federal statute then in effect which has replaced such
statute.
1.3 "Group" shall mean two or more Persons that would be
deemed a "group" for purposes of Rule 13d-5 under the Exchange Act.
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1.4 "Holder" means each of the Exchanging Holders for so long
as it owns any Registrable Securities and any other Person who is a holder or
beneficial owner of Registrable Securities for so long as such Person owns any
Registrable Securities.
1.5 "Person" shall mean an individual, corporation, limited
liability company, joint venture, partnership, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity that may be treated as a person under applicable law.
1.6 "Registrable Securities" shall mean the Common Stock
issued or issuable upon exercise of the Warrant.
As to any Registrable Securities, such securities shall cease
to be Registrable Securities when (i) a registration statement registering such
Registrable Securities under the Securities Act has been declared or becomes
effective and such Registrable Securities have been sold or otherwise
transferred by the Holder thereof pursuant to such effective registration
statement; (ii) such Registrable Securities are sold pursuant to Rule 144 under
circumstances in which any legend borne by such Registrable Securities relating
to restrictions on the transferability thereof, under the Securities Act or
otherwise, is removed by the Company or such Registrable Securities are eligible
to be sold pursuant to paragraph (k) of Rule 144; or (iii) such Registrable
Securities shall cease to be outstanding.
1.7 "Rule 144" shall mean Rule 144 promulgated under the
Securities Act.
1.8 "Securities Act" shall mean Securities Act of 1933, as
amended, or any federal statute then in effect which has replaced such statute.
ARTICLE II
Public Offering Pursuant to Registration Rights
2.1 Demand Registrations.
(a) Holders of Registrable Securities representing
not less than one-third of the then-outstanding Registrable Securities (the
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"Initiating Holders") may require that the Company effect a registration under
the Securities Act at any time or times with respect to at least 25% of the
Common Stock issued or issuable upon exercise of the Warrant (or, if less, all
remaining Registrable Securities) (a "Demand Registration"). Upon receipt of
written notice of such demand, the Company will promptly give written notice of
the proposed registration to all Holders other than Initiating Holders and will
include in such registration (x) all Registrable Securities specified in such
demand, together with Registrable Securities of like kind of any other Holder
joining in such demand as are specified in a written request received by the
Company within 20 days after delivery of the Company's notice and (y) all shares
of equity securities of the Company which the Company or other holders of equity
securities having registration rights may elect to register. Notwithstanding
anything in this Section 2.1(a) to the contrary, the Holders will collectively
be entitled to no more than an aggregate of two (2) Demand Registrations.
(b) The Company shall file a registration statement
with respect to each Demand Registration requested pursuant to Section 2.1(a) as
soon as practicable after receipt of the demand of the Initiating Holders;
provided, however, that (x) if in the good faith judgment of the Board of
Directors of the Company (the "Board"), deferral of such Demand Registration or
delivery of any prospectus supplement to be delivered pursuant to Section 2.5
would be in the best interests of the Company in that such registration or
delivery would interfere with any other material corporate transaction (as
evidenced by an appropriate resolution of the Board) of the Company or would
require the disclosure of material non-public information, then the Company
shall have the right to defer such filing or delivery, as the case may be, in
order to effect such other material corporate transaction; provided, further,
however, that the Company may not defer the filing or delivery, as the case may
be, for any period or periods aggregating more than 90 days after receipt of the
demand of the Initiating Holders; (y) the Company shall not be required to file
any registration statement or deliver any prospectus supplement (i) if such
filing or delivery is prohibited by applicable law or (ii) if the Company has
already filed a registration statement which has not yet been declared effective
or 30 days prior to the anticipated consummation of a public offering by the
Company of its equity securities and 90 days subsequent to the consummation of
such public offering; and (z) if the Company undertakes a registration within 90
days following an exercise of its deferral right, the Holders shall have
"piggyback" rights under Section 2.2 hereof such that they shall be entitled to
include therein a number of shares equal to not less than one-third (1/3) of the
number of shares of Common Stock to be sold in such offering unless such
inclusion would be in conflict with the express registration rights of any other
party pursuant to any agreement by and between the Company and
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such party as in existence on the date hereof, in which instance such Holders
shall be entitled to include in such offering the maximum number of shares not
resulting in such conflict.
(c) If the Initiating Holders intend to distribute
the Registrable Securities covered by a Demand Registration by means of an
underwriting, they shall so advise the Company as part of their demand made
pursuant to Section 2.1(a) and the Company shall include such information in its
written notice to Holders. The Initiating Holders shall have the right to select
the managing underwriter(s) for any underwritten Demand Registration, subject to
the approval of the Board (which will not be unreasonably withheld or delayed).
The right of any Holder to participate in an underwritten Demand Registration
shall be conditioned upon such Holder's participation in such underwriting in
accordance with the terms and conditions thereof, and the Company and all such
Holders will enter into an underwriting agreement in customary form.
(d) The Holders will have absolute priority over any
other securities of the Company sought to be included in a Demand Registration.
If such other securities are included in any Demand Registration that is not an
underwritten offering, all Registrable Securities of the Holders included in
such offering shall be sold prior to or concurrently with the sale of any of
such other securities. If other securities of the Company are included in any
Demand Registration that is an underwritten offering, and the managing
underwriter for such offering advises the Company that in its opinion the amount
of securities to be included exceeds the amount of securities which can be sold
in such offering without adversely affecting the marketability thereof, the
Company will include in such registration all Registrable Securities requested
to be included therein by the Holders prior to the inclusion of any other
securities of the Company. If the number of Registrable Securities requested by
the Holders to be included in such registration exceeds the amount of securities
which in the opinion of such managing underwriter can be sold without adversely
affecting the marketability of such offering, such Registrable Securities shall
be included pro rata among the Holders based on the percentage of the
then-outstanding Registrable Securities held by each such Holder.
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2.2 Piggyback Registration.
(a) If the Company shall determine to register any
equity securities of the Company for its own account or for the account of other
holders of equity securities of the Company on any registration form (other than
Form S-4 or S-8 or other successor forms) which permits the inclusion of
Registrable Securities held by any Holder (a "Piggyback Registration"), the
Company will promptly give each Holder written notice thereof and, subject to
Section 2.2(c), shall include in such registration all Registrable Securities
requested to be included therein pursuant to the written requests of Holders
received within 20 days after delivery of the Company's notice.
(b) If the Piggyback Registration relates to a shelf
registration statement on an applicable form, the Company will cause such
registration to remain effective for a period ending on the earlier of (i) the
date two years after the date the Commission declares such shelf registration
statement effective, and (ii) the date on which there ceases to be any
Registrable Securities outstanding.
(c) If the Piggyback Registration relates to an
underwritten public offering, the Company shall so advise the Holders as part of
the written notice given pursuant to Section 2.2(a). In such event, the right of
any Holder to participate in such registration shall be conditioned upon such
Holder's participation in such underwriting in accordance with the terms and
conditions thereof. The Board shall have the right to select the managing
underwriter(s) for any underwritten Piggyback Registration. All Holders
proposing to distribute their Registrable Securities through such underwriting
shall (together with the Company) enter into an underwriting agreement in
customary form.
(d) If such proposed Piggyback Registration is an
underwritten offering and the managing underwriter for such offering advises
the Company that the securities requested to be included therein exceeds the
amount of securities that can be sold in such offering, except as provided in
Section 2.1(b), any securities to be sold in such offering by the Company or
other holders of the Company's securities initiating such offering shall have
priority over any Registrable Securities held by Holders, and the number of
shares to be included by a Holder and other holders of the Company's securities
that did not initiate the offering in such registration shall be reduced pro
rata on the basis of the percentage of the then outstanding Registrable
Securities held by each such Holder and all other holders exercising similar
registration rights.
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2.3 Expenses of Registration. All expenses incurred in
connection with up to two Demand Registrations and all Piggyback Registrations
shall be borne by the Company, including, in the case of an underwritten
offering, the reasonable cost of one counsel selected by a majority of the
Holders participating in such underwritten offering reasonably acceptable to the
Company (the Company herein acknowledging that Xxxxxxx Procter LLP is acceptable
counsel) up to a maximum of $25,000, provided, that the expenses borne by the
Company shall not include the fees or disbursements of any other adviser of any
Holder. All underwriting discounts, selling commissions and other similar fees
relating to Registrable Securities included in the registration statement of the
Company shall be borne by the Holders of such Registrable Securities pro rata on
the basis of the amount of Registrable Securities sold by them.
2.4 Registration Procedures. In the case of each registration
effected by the Company pursuant to this Article II, the Company will keep each
Holder advised in writing as to the initiation of such registration and as to
the completion thereof. At its expense, the Company will use its reasonable best
efforts to:
(a) cause such registration to be declared effective
by the Commission and, in the case of a Demand Registration, keep such
registration effective for a period of [one year] or until the Holders whose
Registrable Securities are included therein have completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
(b) as soon as reasonably possible, prepare and file
with the Commission such amendments and supplements to such registration
statement and the prospectus included therein (including post-effective
amendments, prospectus supplements and pricing supplements) as may be necessary
to effect and maintain the effectiveness of such registration statement for the
period specified in Section 2.4(a);
(c) provide (A) the Holders of the Registrable
Securities to be included in such registration statement, (B) the underwriters
(which term, for purposes of this Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(11) of the Securities Act) if
any, thereof, (C) the sales or placement agent therefor, if any, (D) counsel for
such underwriters or agent, and (E) not more than one counsel for all the
holders of such Registrable Securities the opportunity to participate in the
preparation of such registration statement, each
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prospectus included therein or filed with the Commission, and each amendment or
supplement thereto;
(d) (A) register or qualify the Registrable
Securities to be included in such registration statement under such securities
laws or blue sky laws of such jurisdictions as any Holder of such Registrable
Securities and each placement or sales agent, if any, therefor and underwriter,
if any, thereof shall reasonably request, and (B) take any and all other actions
as may be reasonably necessary or advisable to enable each such Holder, agent,
if any, and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that the
Company shall not be required for any other purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 2.4(d) or (2) consent to
general service of process or taxation in any such jurisdiction;
(e) furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as any Holder from time to time may reasonably request;
(f) promptly notify the selling Holders of
Registrable Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such advice
in writing, (A) when such registration statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective amendment
has been filed, and with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission, the Blue Sky or securities commissioner or regulator
of any state with respect thereto or any request by the Commission for
amendments or supplements to such registration statement or prospectus or for
additional information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by Section 3 cease to
be true and correct in all material respects, (E) of the receipt by the Company
of any notification with respect to the suspension of the qualification of the
Registrable Securities for the sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any time when a
prospectus is required to be delivered under the Securities Act, that such
registration statement, prospectus, prospectus amendment or supplement or
post-effective amendment, or any document incorporated by reference in any of
the foregoing, contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or
8
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective amendment
thereto at the earliest practicable date;
(h) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Holder of Registrable
Securities, promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or underwriters,
such agent or such Holder specifies should be included therein relating to the
terms of the sale of such Registrable Securities, including, without limitation,
information with respect to the principal amount of Registrable Securities being
sold by such Holder or agent or to any underwriters, the name and description of
such Holder, agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities to be
sold by such Holder or agent or to such underwriters;
(i) furnish to each Holder of Registrable Securities
included in such registration statement, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective counsel referred
to in Section 2.4(c) an executed copy of such registration statement, each such
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically and reasonably so
requested by such Holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements of
the Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and any amendment
or supplement thereto by each such Holder and by any such agent and underwriter,
if any, in each case in the form most recently provided to such party by the
Company, in connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
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(j) cause all Registrable Securities covered by such
registration to be listed on each securities exchange or inter-dealer quotation
system on which similar securities issued by the Company are then listed;
(k) provide a transfer agent and registrar for all
Registrable Securities covered by such registration and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration;
(l) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the Rules of Conduct (the "Rules of
Conduct") of the National Association of Securities Dealers, Inc. ("NASD")
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise use its reasonable best efforts to assist such
broker-dealer in complying with the requirements of such Rules of Conduct,
including, without limitation, by providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules of Conduct;
(m) otherwise comply with all applicable rules and
regulations of the Commission and make available to its security holders, as
soon as reasonably practicable but in no event later than eighteen months after
the effective date of such registration statement, an earnings statement
covering the period of at least twelve months, but not more than 18 months,
beginning with the first month after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act (including, at the option of the Company, Rule 158
thereunder); and
(n) make available to any Holder the Registrable
Securities of which are being sold in an underwritten offering registered
pursuant to this Agreement, to any underwriter of such sale and to any counsel
retained by such Holder in connection therewith, at reasonable times and places,
all records and documents of the Company that are reasonably pertinent to the
registration statement filed in connection with such sale. The Company shall
cause its officers, directors and employees to supply all information reasonably
requested by such Holder, underwritten or counsel in connection therewith. In
addition, in connection with any underwritten Demand Registration, the Company
will enter into an underwriting agreement reasonably satisfactory to the
Initiating Holders containing reasonable and
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customary underwriting provisions, including, without limitation,
indemnification and contribution provisions.
2.5 Delivery of Prospectus Supplement. Subject to Section
2.1(b), in the event that the Company would be required, pursuant to Section
2.4(f) above, to notify the selling Holders of Registrable Securities, the
placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof, the Company shall promptly, but in no event later than five
business days, prepare and furnish to each such Holder, to each placement or
sales agent, if any, and to each underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to initial purchasers of Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing. Each Holder of
Registrable Securities agrees that upon receipt of any notice from the Company
pursuant to Section 2.4(f) hereof, such Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until such Holder shall have received
copies of such amended or supplemented prospectus, and if so directed by the
Company, such Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
2.6 Furnishing Information by the Holders. The Company may
require each Holder of Registrable Securities as to which any registration is
being effected to furnish to the Company such information regarding such Holder
and such Holder's intended method of distribution of such Registrable Securities
as the Company may from time to time reasonably request in writing, but only to
the extent that such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by
such Holder to the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such Holder or such
Holder's intended method of distribution of such Registrable Securities or omits
to state any material fact regarding such Holder or such Holder's intended
method of distribution of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly to furnish information so required
so that such prospectus shall not contain, with respect to such Holder or the
distribution of such Registrable Securities, an untrue statement of
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a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing.
2.7 Indemnification.
(a) The Company will indemnify each Holder whose
Registrable Securities are to be included in a registration pursuant to this
Article II, each of such Holder's officers, directors, partners, agents,
employees and representatives and each person controlling such Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, with respect to each registration, qualification or compliance effected
pursuant to this Article II, against all expenses, claims, losses, damages and
liabilities (or actions, proceedings or settlements in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement, prospectus, or other
document incorporated by reference therein, or compliance, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each such indemnified person for any legal and any other expenses reasonably
incurred in connection with investigating and defending or settling any such
claim, loss, damage, liability or action; provided, however, that the Company
will not be liable in any such case to a Holder to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission based upon written information furnished to the
Company by such Holder and provided for use in such registration statement,
prospectus, offering circular or other document or the Holder delivered a
registration or prospectus in violation of Section 2.5 hereof after notice was
provided by the Company as provided in Section 2.5. It is agreed that the
indemnity agreement contained in this Section 2.7(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld or delayed).
(b) Each Holder whose Registrable Securities are
included in any registration effected pursuant to this Article II shall
indemnify the Company, each of its directors, officers, agents, employees and
representatives, and each Person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, each other
such Holder and each of their officers, directors, partners, agents, employees
and representatives and each person controlling such Holder, and each
underwriter, if any, of such Registrable Securities and each Person who controls
any such underwriter, against all expenses, claims, losses, damages and
liabilities (or actions, proceedings or settlements in respect thereof)
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arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document incident to such registration, qualification or
compliance, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will xxxx xxxxx such indemnified persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in strict conformity with written information furnished to the Company by such
Holder and provided specifically for use therein; provided, however, that (x) no
Holder shall be liable hereunder for any amounts in excess of the gross proceeds
received by such Holder pursuant to such registration, and (y) the obligations
of such Holder hereunder shall not apply to amounts paid in settlement of any
such claims, losses, damages or liabilities (or actions in respect thereof) if
such settlement is effected without the consent of such Holder (which consent
shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this
Section 2.7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld or delayed, the Company
herein and hereby approving Xxxxxxx Procter LLP as counsel to the Exchanging
Holders for the purposes of this Section 2.7(c)), and the Indemnified Party may
participate in such defense with counsel reasonably acceptable to and paid for
by the Indemnifying Party but otherwise at the Indemnified Party's expense, and
provided, further, that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 2.7 to the extent such failure is not materially prejudicial.
No Indemnifying Party in the defense of any such claim or litigation shall
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include an unconditional
release of such Indemnified Party from all liability in respect of such claim
or litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably
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required in connection with the defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this
Section 2.7 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. No person guilty of fraudulent misrepresentation (within
the meaning of section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
2.8 Other Obligations. With a view to making available the
benefits of certain rules and regulations of the Commission which may effectuate
the registration of Registrable Securities or permit the sale of Registrable
Securities to the public without registration, the Company agrees to:
(a) exercise reasonable best efforts to cause the
Company to be eligible to utilize Form S-3 (or any similar form) for the
registration of securities;
(b) at such time as any Registrable Securities are
eligible for transfer under Rule 144(k), upon the request of the holder of such
Registrable
14
Securities, remove any restrictive legend from the certificates evidencing such
Registrable Securities at no cost to such holder;
(c) make and keep available public information as
defined in Rule 144 under the Securities Act at all times;
(d) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act at any time after it has become subject to such reporting
requirements; and
(e) furnish any Holder upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time from and after 90 days following the effective date of the
first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements), a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents as a Holder may reasonably request in availing
itself of any rule or regulation of the Commission (including Rule 144A)
allowing a holder of Registrable Securities to sell any such Registrable
Securities without registration.
ARTICLE III
Representations and Warranties
The Company represents and warrants to, and agrees with, the
Exchanging Holders and each of the Holders from time to time of Registrable
Securities that:
(a) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or assets
of the Company is subject nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of the Company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties; and no
consent, approval,
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authorization, order, registration or qualification of or with any such court or
govern mental agency or body is required for the consummation by the Company of
the transactions contemplated by this Agreement, except the registration under
the Securities Act of the Registrable Securities, and such consents, approvals,
authorizations, registrations or qualifications as may be required under State
securities or blue sky laws in connection with the offering and distribution of
the Registrable Securities.
(b) This Agreement has been duly authorized, executed
and delivered by the Company.
ARTICLE IV
Termination
This Agreement shall terminate immediately following the
moment at which there exist no securities of the Company that constitute
Registrable Securities; provided, however, that Section 2.7 hereof shall survive
indefinitely.
ARTICLE V
Miscellaneous
5.1 Recapitalization, Exchanges, etc. Affecting the Common
Stock. The provisions of this Agreement shall apply to the full extent set forth
herein with respect to (a) the Registrable Securities and (b) any and all shares
of capital stock of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution for the Registrable
Securities, by reason of any stock dividend, split, reverse split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. In the
event of any change in the capitalization of the Company as a result of any
stock split, stock dividend or stock combination, the provisions of this
Agreement shall be appropriately adjusted.
5.2 Injunctive Relief. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved Person
will be irreparably damaged and
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will not have an adequate remedy at law. Any such Person shall, therefore, in
addition to any other remedies available under applicable law, be entitled to
injunctive relief, including specific performance, to enforce such obligations,
without the posting of any bond, and if any action should be brought in equity
to enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
5.3 Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto. In
the event that any transferee of any Holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing of any kind, be deemed a party hereto for all purposes and such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of and be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement.
5.4 Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statements as to the results thereto) made
by or on behalf of any Holder of Registrable Securities, any director, officer
or partner of such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Warrant and the transfer of Registrable Securities by such Holder.
5.5 Amendment; Waiver.
(a) This Agreement may be amended only by a written
instrument signed by the Company and by Holders holding more than a majority of
the then outstanding Registrable Securities.
(b) No provision of this Agreement may be waived
orally, but only by a written instrument signed by the party against whom
enforcement of such waiver is sought. Holders shall be bound from and after the
date of the receipt of a written notice from the Company setting forth such
amendment or waiver,
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whether or not the Registrable Securities shall have been marked to indicate
such amendment or waiver.
5.6 Notices. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing
(including a writing delivered by facsimile transmission) and shall be deemed
to have been duly given if delivered personally, or sent by either certified or
registered mail, return receipt requested, postage prepaid, or by overnight
courier guaranteeing next day delivery, or by telex or telecopier, at the
following addresses:
if to the Company:
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Senior Executive Vice President
and General Counsel
Telecopier: (000) 000-0000
with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
if to the Exchanging Holders to the name of such
Exchanging Holder at the following address:
00 Xxxxxxxxxx Xxxxxx
X00X
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
with a copy to:
H. Xxxxx Xxxxxx, P.C.
Xxxxxxx Procter LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
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The Exchanging Holders may, by written notice given to the Company in accordance
with this Section 4.5, change the address to which such notice or other
communications are to be sent to it. All such notices and communications shall
be deemed to have been given on the date of delivery thereof, if delivered by
hand, on the fifth day after the mailing thereof, if mailed, on the next day
after the sending thereof, if by overnight courier and when receipt is
acknowledged, if telecopied.
5.7 Inspection. So long as this Agreement shall be in effect,
this Agreement and any amendments hereto shall be made available for inspection
by any Holder at the principal offices of the Company.
5.8 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
5.9 Headings. Article, section and paragraph headings are
inserted for convenience only and do not constitute a part of this Agreement.
5.10 Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof. There
are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to this
subject matter.
5.11 Illegality. In case any provision in this Agreement shall
be declared or held invalid, illegal or unenforceable, in whole or in part,
whether generally or in any particular jurisdiction, such provision shall be
deemed amended to the extent, but only to the extent, necessary to cure such
invalidity, illegality or unenforceability, and the validity, legality and
enforceability of the remaining provisions, both generally and in every other
jurisdiction, shall not in any way be affected or impaired thereby.
5.12 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall
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constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
5.13 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.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth above.
RITE AID CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: Senior Executive Vice President, General
Counsel and Assistant Secretary
[The Exchanging Holders]
By:
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Title:
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