EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of February 20, 1997 among
American Stores Company, a Delaware corporation (the "Compa-
ny"), and the Sellers listed on the signature pages to this
Agreement (together with any Additional Sellers (as defined in
the Stock Purchase Agreement), the "Sellers"). Any bank or
trust company which agrees to be bound by this Agreement shall
do so only in the capacity as shown on the signature page
hereto.
W I T N E S S E T H :
WHEREAS, the Company and the stockholders listed on
the signature pages thereto are parties to that certain Stock
Purchase Agreement, dated as of February 20, 1997 (the "Stock
Purchase Agreement"); and
WHEREAS, the Stock Purchase Agreement contemplates
that the Company and Sellers shall enter into a registration
rights agreement covering the Retained Shares;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants contained herein, and of other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each of the Company and the several
Sellers, intending to be legally bound, hereby agrees as fol-
lows:
1. Definitions.
(a) Capitalized terms used in this Registration
Rights Agreement (this "Agreement") but not otherwise defined
herein shall have the meanings given to them in the Stock Pur-
chase Agreement.
(b) As used in this Agreement, the following capi-
talized terms shall have the meanings ascribed to them below:
"Company" has the meaning set forth in the first
paragraph hereof.
"Demand Registration" has the meaning set forth in
Section 3(a) hereof.
"Demand Registration Period" has the meaning set
forth in Section 3(a) hereof.
"Minimum Demand Quantity" has the meaning set forth
in Section 3(a) hereof.
"Offer Price" has the meaning set forth in Section
2(b) hereof.
"Piggyback Registration" has the meaning set forth in
Section 6(a) hereof.
"Pricing Date" has the meaning set forth in Section
2(b) hereof.
"Prospectus" means the prospectus included in any
Registration Statement, as amended or supplemented by any pros-
pectus supplement with respect to the terms of the offering of
any portion of the Registrable Shares covered by such Registra-
tion Statement or any other amendments and supplements to such
prospectus, including without limitation any preliminary pro-
spectus, any pre-effective or post-effective amendment and all
material incorporated by reference in any prospectus.
"Registrable Shares" means (i) the Retained Shares
and (ii) any securities issued or issuable in respect of or in
exchange for any of the Retained Shares by way of a stock divi-
dend or other distribution, stock split, reverse stock split or
other combination of shares, recapitalization, reclassifica-
tion, merger, consolidation or exchange offer. As to any par-
ticular Registrable Shares, such securities shall cease to be
Registrable Shares at the earlier of (i) the expiration of the
Standstill Period, (ii) when a Registration Statement with re-
spect to the sale of such securities shall have become effec-
tive under the Securities Act and such securities shall have
been disposed of in accordance with such Registration Statement
or (iii) when such securities shall have been sold pursuant to
Rule 144 (or any successor provision) under the Securities Act.
"Registration Expenses" has the meaning set forth in
Section 5 hereof.
"Registration Statement" means any registration
statement of the Company under the Securities Act which covers
Registrable Shares pursuant to the provisions of this Agree-
ment, all amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhib-
its and all material incorporated by reference in such Regis-
tration Statement.
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"SEC" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securi-
ties Act or the Exchange Act.
"Secondary Election" has the meaning set forth in
Section 2(b) hereof.
"Secondary Lead Underwriters" has the meaning given
such term in Section 2(c) hereof.
"Sellers" has the meaning set forth in the recitals
hereto.
"Stock Purchase Agreement" has the meaning set forth
in the recitals hereto.
2. Secondary Registration.
(a) The Company's Obligation to File. The Company
shall file as promptly as practicable following the date of the
Stock Purchase Agreement, and shall use all reasonable efforts
to cause to be declared effective as soon as possible (but in
any event not later than 60 days) after such filing, a Regis-
tration Statement under the Securities Act for the offering
(the "Secondary Offering") of all of the Registrable Shares
(the "Secondary Registration"). The Company shall use reason-
able efforts to cause such Registration Statement to remain ef-
fective until the earlier of (i) 60 days following the date on
which it was declared effective and (ii) the date on which all
of the Registrable Shares covered thereby are disposed of in
accordance with the method or methods of disposition stated
therein.
(b) The Parties' Obligation to Effect. Each of the
Company and the Sellers holding Registrable Shares shall use
all reasonable efforts to assist the Secondary Lead Underwrit-
ers in the coordination and execution of the Secondary Offering
to enable its successful completion as promptly as reasonably
practicable but in any event not later than the 60th day after
the filing of the Secondary Registration, and such Sellers
agree that they shall consummate the sale of all of the Regis-
trable Shares in the Secondary Offering promptly upon the Reg-
istration Statement in respect thereof being declared effective
by the SEC; provided, however, that such Sellers shall not be
obligated to sell any Registrable Shares in the Secondary Of-
fering if (i) the price at which the Registrable Shares would
be sold to the public in such offering (as determined at the
time of pricing (the "Pricing Date") of such Registrable Shares
by the Secondary Lead Underwriters) (the "Offer Price") would
be less than the Repurchase Price and (ii) the Sellers holding
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a majority of the Retained Shares give written notice to the
Company and the Secondary Lead Underwriters on the Pricing Date
of their termination of the Secondary Offering (the "Secondary
Election").
(c) The Company and the Sellers agree that the co-
lead underwriters of the Secondary Offering shall be Xxxxxxx,
Sachs & Co. and X.X. Xxxxxx & Co. Incorporated (the "Secondary
Lead Underwriters").
(d) Inclusion of Other Securities. No securities
other than Registrable Shares and associated preferred share
purchase rights shall be included in the Secondary Registra-
tion.
3. Demand Registration.
The rights and obligations of the parties pursuant to
this Section 3 are conditioned upon the Sellers making the Sec-
ondary Election pursuant to Section 2(b) hereof or the Sellers
not having sold all of the Registrable Shares in the Secondary
Offering (other than due to a breach of the Seller's obliga-
tions or a failure of Seller's representations under this
Agreement, the Stock Purchase Agreement or the Underwriting
Agreement for the Secondary Offering).
(a) Requests for Registration. Subject to the pro-
visions of this Section 3, any Seller or group of Sellers may,
at any time prior to the earlier of (x) the expiration of the
Standstill Period and (y) the first date on which there are
fewer than two million Registrable Shares, subject to appropri-
ate adjustment in the event of a stock split, reverse stock
split or stock dividend (the "Demand Registration Period"),
make a written request to the Company for registration under
the Securities Act of all or any part of such Seller or Sell-
ers' Registrable Shares in a widely distributed underwritten
offering (a "Demand Registration"). Such request shall specify
the number of Registrable Shares to be registered, which amount
shall not be less than the lesser of (i) four million Regis-
trable Shares and (ii) 50% of the Registrable Shares then out-
standing (but in any event not less than two million Registra-
ble Shares), subject to appropriate adjustment in the event of
a stock split, reverse stock split or stock dividend (such min-
imum amount being referred to herein as the "Minimum Demand
Quantity"). The Seller or Sellers making such request shall
send a written notice of such request to all Sellers and the
Company shall, subject to the provisions of this Section 3,
include in such Demand Registration all Registrable Shares with
respect to which the Company receives written requests (speci-
fying the amount of Registrable Shares to be registered) for
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inclusion therein within 15 days after the initial request. As
promptly as practicable thereafter, the Company shall file with
the SEC a Registration Statement, registering all Registrable
Shares that any Sellers have requested the Company to register.
The Company shall use all reasonable efforts to cause such Reg-
istration Statement to be declared effective as soon as practi-
cable after filing and to remain effective until the earlier of
(i) 60 days following the date on which it was declared effec-
tive and (ii) the date on which all of the Registrable Shares
covered thereby are disposed of in accordance with the method
or methods of disposition stated therein.
(b) Number of Registrations. The Sellers shall be
entitled to request an aggregate of two Demand Registrations
during the Demand Registration Period if the Standstill Period
pursuant to the Stock Purchase Agreement is 30 months, or three
Demand Registrations during the Demand Registration Period if
such Standstill Period is ten years; provided, however, that
the Company will not be obligated to comply with any such re-
quest unless, subject to Section 6(a) hereof, (i) such request
is for the registration of an aggregate of least the Minimum
Demand Quantity of Registrable Shares, (ii) the Company has not
filed a registration statement for a Demand Registration in
accordance with the terms of this Agreement within the previous
twelve months, and (iii) if the Company Repurchase has been
consummated, twelve months have elapsed since the Closing
thereof. If any request for the Minimum Demand Quantity is
delivered within the applicable time period specified in this
Section 3(b), the Company shall proceed in accordance with the
applicable provisions hereof for a reasonable time period not-
withstanding the fact that the related Registration Statement
would not become effective until after the expiration of the
period during which such request was required to be delivered.
(c) Lead Underwriters. Each offering pursuant to a
Demand Registration shall be managed by a lead underwriter (the
"Lead Underwriter") chosen by the Sellers holding a majority of
Registrable Shares to be registered in such offering in consul-
tation with and subject to the consent of the Company; provided
that such consent shall not be unreasonably withheld.
(d) Suspension of Registration. The Company shall
have the right to delay the filing or effectiveness of a Regis-
tration Statement for any Demand Registration or to require the
Sellers not to sell under any such Registration Statement, dur-
ing one or more periods aggregating not more than 90 days in
each twelve-month period during the Demand Registration Period
in the event that (i) the Company would, in accordance with the
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advice of its counsel, be required to disclose in the Prospec-
tus information not otherwise then required by law to be pub-
licly disclosed and (ii) in the judgment of the Company's Board
of Directors, there is a reasonable likelihood that such dis-
closure, or any other action to be taken in connection with the
Prospectus, would materially and adversely affect any existing
or prospective material business situation, transaction or ne-
gotiation or otherwise materially and adversely affect the Com-
pany. If the Company shall exercise its rights of delay, all
related time periods shall be extended, if and to the extent
appropriate, to take into account the length of such delay.
(e) Offering by the Company. The Company may in-
clude in any Demand Registration additional shares of capital
stock to be sold for the Company's account pursuant to such
registration; provided, however, that if the Lead Underwriter
for a Demand Registration shall advise the Company that, in its
opinion, the inclusion of the amount to be sold for the Com-
pany's account would adversely affect the success of the offer-
ing for the participating Sellers, then the number and kind of
shares of capital stock to be sold for the Company's account
shall be reduced (and may be reduced to zero) in accordance
with the Lead Underwriter's recommendation.
4. Registration Procedures.
(a) Obligation of the Company. In connection with
the Company's Secondary Registration and Demand Registration
obligations pursuant to Sections 2 and 3 hereof, the Company
shall use all reasonable efforts to effect such registrations
to permit the sale of such Registrable Shares in an underwrit-
ten public offering, and pursuant thereto the Company shall:
(i) prepare and as soon as practicable there-
after file with the SEC a Registration Statement or Reg-
istration Statements relating to the Secondary Regis-
tration and the Demand Registrations on any appropriate
form under the Securities Act, and use all reasonable
efforts to cause such Registration Statements to become
effective as soon as practicable and to remain continu-
ously effective for the time period required by this
Agreement to the extent permitted under the Securities
Act and the Company shall cooperate with the participat-
ing Sellers, the underwriters and their respective coun-
sel in connection with the preparation of the Registra-
tion Statement relating to the Secondary Offering or any
Demand Registration, as the case may be; provided, how-
ever, that as soon as practicable but in no event later
than five Business Days before filing such Registration
Statement, any related Prospectus or any amendment or
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supplement thereto, other than any amendment or supple-
ment made solely as a result of incorporation by refer-
ence of documents filed with the SEC subsequent to the
filing of such Registration Statement, the Company shall
furnish to the Sellers of the Registrable Shares covered
by such Registration Statement and the underwriters cop-
ies of all such documents proposed to be filed, which
documents shall be subject to the review of such Sellers
and underwriters; the Company shall not file any Regis-
tration Statement or amendment thereto or any Prospectus
or any supplement thereto (other than any amendment or
supplement made solely as a result of incorporation by
reference of documents filed with the SEC subsequent to
the filing of such Registration Statement) to which the
lead underwriters of the applicable offering, or the
Sellers holding a majority of the Registrable Shares
covered by such Registration Statement shall have ob-
jected within three Business Days after receipt of such
documents to such filing based upon their reasonable
belief that such Registration Statement or amendment
thereto or Prospectus or supplement thereto does not
comply in all material respects with the requirements of
the Securities Act; provided that the foregoing shall
not limit the right of any Seller whose Registrable
Shares are covered by a Registration Statement to advise
the Company relating to any particular information that
is to be contained in such Registration Statement,
amendment, Prospectus or supplement and relates specifi-
cally to such Seller; and if the Company is unable to
file any such document due to the reasonable objections
of such underwriters or such Sellers, to cooperate with
such underwriters and Sellers to prepare, as soon as
practicable, a document that is responsive in all mate-
rial respects to such reasonable objections of such un-
derwriters and Sellers;
(ii) prepare and file with the SEC such amend-
ments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration
Statement effective for the applicable period set forth
in Sections 2(a) and 3(a) hereof; and use all reasonable
efforts to cause the related Prospectus to be supple-
mented by any required Prospectus supplement, and as so
supplemented shall file such Prospectus in accordance
with the Securities Act and any rules and regulations
promulgated thereunder; and shall otherwise use all rea-
sonable efforts to comply with the provisions of the
Securities Act as may be necessary to facilitate the
disposition of all Registrable Shares covered by such
Registration Statement during the applicable period;
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(iii) notify the participating Sellers and the
Secondary Lead Underwriter or the Lead Underwriter, as
the case may be, promptly if at any time (A) any Pro-
spectus, Registration Statement or amendment or supple-
ment thereto is filed, (B) any Registration Statement,
or any post-effective amendment thereto, becomes effec-
tive, (C) the SEC requests any amendment or supplement
to, or any additional information in respect of, any
Registration Statement or Prospectus, (D) the SEC issues
any stop order suspending the effectiveness of a Regis-
tration Statement or initiates any proceedings for that
purpose, (E) the representations and warranties of the
Company contemplated by subclause (C) of clause (xii) of
this paragraph (a) cease to be true and correct in any
material respect, (F) the Company receives any notice
that the qualification of any Registrable Shares for
sale in any jurisdiction has been suspended or that any
proceeding has been initiated for the purpose of sus-
pending such qualification, or (G) subject to the Com-
pany's rights under Section 3(d), any event occurs which
the Company reasonably believes requires that any
changes be made in such Registration Statement or any
related Prospectus so that such Registration Statement
or Prospectus will not contain any untrue statement of a
material fact or omit to state any material fact re-
quired to be stated therein or necessary to make the
statements therein not misleading;
(iv) use all reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of
a Registration Statement, or the qualification of any
Registrable Shares for sale in any jurisdiction, at the
earliest practicable moment;
(v) if requested by the Secondary Lead Under-
writers or the Lead Underwriter, as the case may be, or
any participating Seller, promptly incorporate into a
Prospectus supplement or a post-effective amendment to
the Registration Statement any information which such
underwriters and such Seller requests, and the Company
reasonably agrees, is required to be included therein
relating to such sale of Registrable Shares; and shall
file such supplement or post-effective amendment as soon
as practicable in accordance with the Securities Act and
the rules and regulations promulgated thereunder;
(vi) furnish to the Sellers and the Secondary
Lead Underwriters or Lead Underwriter, as the case may
be, one signed copy of the Registration Statement or
Registration Statements and any post-effective amendment
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thereto, including all financial statements and sched-
ules thereto, all documents incorporated therein by ref-
erence and all exhibits thereto (including exhibits in-
corporated by reference) as promptly as practicable af-
ter filing such documents with the SEC;
(vii) deliver to the participating Sellers and
each underwriter as many copies of the Prospectus or
Prospectuses (including each preliminary Prospectus) and
any amendment or supplement thereto as such Persons may
reasonably request; and shall consent to the use of such
Prospectus or any amendment or supplement thereto by
each such participating Seller and underwriter, if any,
in connection with the offering and sale of the Regis-
trable Shares covered by such Prospectus, amendment or
supplement;
(viii) prior to any public offering of Registra-
ble Shares, use all reasonable efforts to register or
qualify, and shall cooperate with the participating
Sellers, the underwriters and their respective counsel
in connection with the registration or qualification of
such Registrable Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as may
reasonably be requested by the Sellers of a majority of
the Registrable Shares included in such Registration
Statement; use all reasonable efforts to keep each such
registration or qualification effective during the pe-
riod set forth in Section 2(a) or 3(a) hereof that the
applicable Registration Statement is required to be kept
effective; and shall do any and all other acts or things
reasonably necessary to enable the disposition in such
jurisdictions of the Registrable Shares covered by such
Registration Statement; provided, however, that the Com-
pany will not be required to qualify generally to do
business in any jurisdiction where it is not then so
qualified or to take any action which would subject it
to general service of process in any jurisdiction where
it is not then so subject;
(ix) cooperate with the participating Sellers
and the underwriters in the preparation and delivery of
certificates representing the Registrable Shares to be
sold, such certificates to be in such denominations and
registered in such names as such Sellers or managing un-
derwriters may request at least two business days prior
to any sale of Registrable Shares represented by such
certificates;
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(x) use all reasonable efforts to cause the
Registrable Shares covered by the applicable Registra-
tion Statement to be registered with or approved by such
other governmental agencies or authorities as may be
reasonably necessary to enable the participating Sellers
or the underwriters to consummate the sale of such Reg-
istrable Shares in conformity with federal law and the
laws of the jurisdictions in which such Registrable
Shares shall be registered or qualified pursuant to
clause (viii) of this paragraph (a);
(xi) upon the occurrence of any event de-
scribed in subclause (G) of clause (iii) of this para-
graph (a), subject to the Company's rights under Section
3(d), promptly prepare and file a supplement or post-
effective amendment to the applicable Registration
Statement or Prospectus or any document incorporated
therein by reference, and any other required document,
so that such Registration Statement and Prospectus will
not thereafter contain an untrue statement of a material
fact or omit to state any material fact necessary to
make the statements therein not misleading, and shall
use all reasonable efforts to cause such supplement or
post-effective amendment to become effective as soon as
practicable;
(xii) (A) take all other actions in connection
therewith as are reasonably necessary or desirable in
order to expedite or facilitate the disposition of the
Registrable Shares included in such Registration State-
ment; (B) enter into an underwriting agreement in cus-
tomary form for the Secondary Lead Underwriters or the
Lead Underwriter, as the case may be, with respect to
issuers with similar market capitalization and reporting
and financial histories; (C) make representations and
warranties to each Seller participating in such offering
and to each of the underwriters, in such form, substance
and scope as are customarily made to the Secondary Lead
Underwriters or the Lead Underwriter, as the case may
be, by issuers with similar market capitalization and
reporting and financial histories, and shall confirm the
same to the extent customary if and when requested; (D)
obtain opinions of counsel to the Company (which may be
the Company's inside counsel) and updates thereof ad-
dressed to each participating Seller and to each of the
underwriters, such opinions and updates to be in custom-
ary form and to cover the matters customarily covered in
opinions obtained in underwritten offerings by the Sec-
ondary Lead Underwriters or the Lead Underwriter, as the
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case may be, for issuers with similar market capitaliza-
tion and reporting and financial histories; (E) obtain
"comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to
each of the underwriters, such letters to be in custom-
ary form and to cover matters of the type customarily
covered in "comfort" letters to the Secondary Lead Un-
derwriters or Lead Underwriter, as the case may be, in
connection with underwritten offerings by them for issu-
ers with similar market capitalization and reporting and
financial histories; (F) provide, in the underwriting
agreement to be entered into in connection with such
offering, indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof
with respect to all parties to be indemnified pursuant
to such Section 7; and (G) deliver such customary docu-
ments and certificates as may be reasonably requested by
the holders of a majority of the Registrable Shares in-
cluded in such Registration Statement and by the Second-
ary Lead Underwriters or Lead Underwriter, as the case
may be, to evidence compliance with clause (C) of this
paragraph (xii) and with any customary conditions con-
tained in the underwriting agreement entered into by the
Company and the participating Sellers in connection with
such offering;
(xiii) make available for inspection at rea-
sonable times by representatives of the Sellers of Reg-
istrable Shares being sold pursuant to a Registration
Statement and of the underwriters participating in such
sale all relevant financial and other records, pertinent
corporate documents and properties of the Company, and
to cause the Company's officers, directors and employees
to supply all information reasonably requested by any
such representatives, in connection with the Secondary
Registration or such Demand Registration; provided, how-
ever, that all non-public information regarding such
records, documents and properties shall be kept confi-
dential by such persons unless disclosure of such infor-
mation is required by court or administrative order;
(xiv) comply with all applicable rules and reg-
ulations of the SEC relating to such Registration State-
ment and the distribution of the securities being of-
fered or otherwise necessary in order to perform the
Company's obligations under this paragraph (a);
(xv) cooperate and assist in any filings re-
quired to be made with the New York Stock Exchange, Inc.
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and in the performance of any customary or required due
diligence investigation by any underwriter; and
(xvi) take all other reasonable steps necessary
or appropriate to effect such registration in the manner
contemplated by this Agreement.
(b) Sellers' Obligation to Furnish Information.
The Company may require each Seller of Registrable Shares as
to which any registration is being effected to furnish to the
Company such information as the Company may from time to time
reasonably request.
(c) Suspension of Sales Pending Amendment of Pro-
spectus. Each Seller agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind
described in subclause (C), (D), (E), (F) or (G) of clause
(iii) of paragraph (a) of this Section 4, such Seller will
forthwith forego or delay the disposition of any Registrable
Shares covered by such Registration Statement or Prospectus
until such Seller's receipt of the copies of the supplemented
or amended Prospectus contemplated by clause (xi) of such
paragraph (a), or until it is advised in writing by the Com-
pany that the use of the applicable Prospectus may be re-
sumed, and has received copies of any additional or supple-
mental filings which are incorporated by reference in such
Prospectus, and, if so directed by the Company, such Seller
will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Sell-
er's possession of any Prospectus covering such Registrable
Shares. If the Company shall have given any such notice dur-
ing a period when the Secondary Registration or any Demand
Registration is in effect, the 60-day period described in
Section 2(a) or 3(a) hereof, as the case may be, shall be
extended by the number of days from and including the date of
the giving of such notice to and including the date when each
Seller of Registrable Shares covered by such Registration
Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by clause (xi) of para-
graph (a) of this Section 4 or shall have been advised in
writing by the Company that the use of the applicable Pro-
spectus may be resumed.
5. Registration Expenses.
All expenses incident to the Company's performance
of or compliance with its obligations under this Agreement,
including without limitation all (i) registration and filing
fees, (ii) fees and expenses of compliance with securities or
blue sky laws (including reasonable fees and disbursements of
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counsel in connection with blue sky qualifications or regis-
trations (or the obtaining of exemptions therefrom) of the
Registrable Shares), (iii) printing expenses (including ex-
penses of printing Prospectuses), (iv) messenger and delivery
expenses, (v) the Company's internal expenses (including,
without limitation, salaries and expenses of its officers and
employees performing legal or accounting duties), (vi) fees
and disbursements of its counsel and its independent certi-
fied public accountants (including the expenses of any spe-
cial audit or "comfort" letters required by or incident to
such performance or compliance), (vii) securities acts li-
ability insurance (if the Company elects to obtain such in-
surance), (viii) fees and expenses of other Persons retained
by the Company and (ix) reasonable fees and expenses of one
counsel for the Sellers whose Registrable Shares are covered
by each Registration Statement as a group (all such expenses
being herein referred to as "Registration Expenses"), shall
be borne by the Company. Registration Expenses shall not
include any underwriting discounts or commissions and trans-
fer taxes, if any, attributable to the sale of the Registra-
ble Shares, which shall be borne solely by the participating
Sellers; provided that, in the case of the Secondary Offer-
ing, if the proceeds per share of Common Stock to the par-
ticipating Sellers, net of underwriting discounts or commis-
sions, would be less than the Repurchase Price, then the Com-
pany shall bear such portion of the underwriting discounts or
commissions as necessary such that such net proceeds per
share to the participating Sellers shall equal the lesser of
the Repurchase Price or the Offer Price; and provided fur-
ther, that, in the event the Company elects to include in any
Demand Registration shares for its own account pursuant to
Section 3(e) hereof, the Company shall bear all underwriting
discounts or commissions relating to the sale or disposition
of such shares. Subject to the Stock Purchase Agreement, all
other expenses incurred by any party to this Agreement in
connection with the transactions contemplated hereby shall,
subject to Section 6(b), be borne by the party incurring such
expenses.
6. Piggyback Registration.
The rights and obligations of the parties pursuant
to this Section 6 are conditioned upon the Sellers making the
Secondary Election pursuant to Section 2(b) hereof or the
Sellers not having sold all of the Registrable Shares in the
Secondary Offering (other than due to a breach of any of the
Sellers' obligations or a failure of any of Sellers' repre-
sentations under this Agreement, the Stock Purchase Agreement
or the underwriting agreement for the Secondary Offering).
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(a) Right to Include Registrable Shares. If at
any time during the Demand Registration Period, the Company
proposes to register its common stock under the Securities
Act, whether or not for sale for its own account (other than
a registration on Form S-4 or Form S-8, or any successor or
similar forms), it will each such time promptly give written
notice to the Seller Representative (as defined in Section
11(d)) of its intention to do so and of rights of such Sell-
ers under this Section 6 (the "Section 6 Notice"). The Com-
pany will use all reasonable efforts to include in the pro-
posed registration all Registrable Shares that the Company is
requested in writing, within 10 days after the Section 6 No-
xxxx is given, to register by the Sellers thereof (a "Piggy-
back Registration"); provided, however, that (i) if, at any
time after giving written notice of its intention to register
any equity securities and prior to the effective date of the
registration statement filed in connection with such regis-
tration, the Company shall determine for any reason not to
register such equity securities, the Company may, at its
election, give written notice of such determination to the
Seller Representative and, thereupon, shall be relieved of
its obligation to register any Registrable Shares in con-
nection with such abandoned registration and (ii) in case of
a determination by the Company to delay registration of its
common stock, the Company shall be permitted to delay the
registration of such Registrable Shares for the same period
as the delay in registering such other common stock. Not-
withstanding anything to the contrary in Section 3 hereof, no
Seller shall have the right to require the Company to regis-
ter any Registrable Shares pursuant to such Section 3 until
the later of (A) the completion of the distribution of the
securities offered and registered pursuant to the Section 6
Notice and (B) 90 days after the date each registration
statement effected under this Section 6 is declared effec-
tive.
(b) Expenses. The Company shall pay all Registra-
tion Expenses in connection with each registration of Regis-
trable Shares requested pursuant to this Section 6; provided,
however, that each participating Seller shall pay all under-
writing discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Seller's Regis-
trable Shares pursuant to a Registration Statement effected
pursuant to this Section 6.
(c) Underwriters. The Company shall be entitled,
in its sole discretion, to designate the underwriters (in-
cluding the lead underwriter or underwriters) for any offer-
ing pursuant to this Section 6.
-14-
(d) Priority in Piggyback Registration. If the
lead underwriter for a registration pursuant to this Sec-
tion 6 shall advise the Company that, in its opinion, the
inclusion of the amount of Registrable Shares to be sold for
the account of Sellers would adversely affect the success of
the offering for the Company, then the number of Registrable
Shares to be sold for the account of such Sellers shall be
reduced (and may be reduced to zero) in accordance with the
lead underwriter's recommendation. In the event that the
number of Registrable Shares to be included in any regis-
tration is reduced (but not to zero), the number of such Reg-
istrable Shares included in such registration shall be al-
located pro rata among all requesting Sellers, on the basis
of the relative number of shares of such Registrable Shares
each such Seller has requested to be included in such regis-
tration. If, as a result of the proration provisions of this
Section 6(d), any Seller shall not be entitled to include all
Registrable Shares in a registration pursuant to this Sec-
tion 6 that such Seller has requested be included, such
Seller may elect to withdraw its Registrable Shares from the
registration; provided, however, that such withdrawal elec-
tion shall be irrevocable and, after making a withdrawal
election, a Seller shall no longer have any right to include
Registrable Shares in the registration as to which such with-
drawal election was made.
(e) Merger, Consolidation, etc. Notwithstanding
anything in this Section 6 to the contrary, Sellers shall not
have any right to include their Registrable Shares in any
distribution or registration of equity securities by the Com-
pany which is a result of a merger, consolidation, acquisi-
tion, exchange offer, recapitalization, other reorganization,
dividend reinvestment plan, stock option plan or other em-
ployee benefit plan, or any similar transaction having the
same effect.
7. Indemnification.
(a) Indemnification by the Company. In the event
of any registration of any securities of the Company under
the Securities Act pursuant to Section 2, 3 or 6 hereof, the
Company will, and hereby does, indemnify and hold harmless,
to the extent permitted by law, each Seller of any Regis-
trable Shares covered by such Registration Statement, its
directors, trustees and officers, each other person who par-
ticipates as an underwriter, if any, in the offering or sale
of such securities and each other person, if any, who con-
trols such Seller or any such underwriter within the meaning
-15-
of the Securities Act (collectively, the "Seller Indemni-
tees"), against any and all losses, claims, damages or li-
abilities, joint or several, and expenses (including any
amounts paid in any settlement effected with the Company's
consent, which consent shall not be unreasonably withheld) to
which such Seller Indemnitees may become subject under the
Securities Act, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or pro-
ceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under
which such securities were registered under the Securities
Act or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact con-
tained in any preliminary Prospectus, together with the docu-
ments incorporated by reference therein (as amended or sup-
plemented if the Company shall have filed with the SEC any
amendment thereof or supplement thereto), if used prior to
the effective date of such Registration Statement, or con-
tained in the Prospectus, together with the documents incor-
porated by reference therein (as amended or supplemented if
the Company shall have filed with the SEC any amendment
thereof or supplement thereto), or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and the Company will reimburse
such Seller Indemnitees for any legal or any other expenses
reasonably incurred by any of them in connection with inves-
tigating or defending any such loss, claim, liability, action
or proceeding; provided, however, that the Company shall not
be liable to any such Seller Indemnitee in any such case to
the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises
out of or is based upon any untrue statement or alleged un-
true statement or omission or alleged omission made in such
Registration Statement or amendment thereof or supplement
thereto or in any such preliminary, final or summary Prospec-
tus in reliance upon and in conformity with information fur-
nished in writing to the Company by or on behalf of any such
Seller Indemnitee, for use in the preparation thereof; and
provided further, that the Company will not be liable to any
person who participates as an underwriter in any underwritten
offering or sale of Registrable Shares, or any other person,
if any, who controls such underwriter within the meaning of
the Securities Act, under the indemnity agreement in this
Section 7(a) with respect to any preliminary Prospectus or
the final Prospectus (including any amended or supplemented
-16-
preliminary or final Prospectus), as the case may be, to the
extent that any such loss, claim, damage or liability of such
underwriter or controlling person results from the fact that
such underwriter sold Registrable Shares to a person to whom
there was not sent or given, at or prior to the written con-
firmation of such sale, a copy of the final Prospectus or of
the final Prospectus as then amended or supplemented, which-
ever is most recent, if the Company has previously furnished
copies thereof to such underwriter and such final Prospectus,
as then amended or supplemented, has corrected any such mis-
statement or omission. Such indemnity shall remain in full
force and effect regardless of any investigation made by or
on behalf of any Seller Indemnitee and shall survive the
transfer of any such securities by any such Seller Indemni-
tee.
(b) Indemnification by the Sellers. In consider-
ation of the Company's including any Registrable Shares in
any Registration Statement filed in accordance with Sec-
tion 2, 3 or 6 hereof, the prospective Seller of such Regis-
trable Shares and any underwriter shall be deemed to have
agreed to indemnify and hold harmless (in the same manner and
to the same extent as set forth in paragraph (a) of this Sec-
tion 7) the Company and its directors and officers and each
person controlling the Company within the meaning of the Se-
curities Act (collectively, "Company Indemnitees") and all
other prospective Sellers and their directors, trustees, of-
ficers and respective controlling persons with respect to any
statement or alleged statement in or omission or alleged
omission from such Registration Statement, any preliminary,
final or summary Prospectus contained therein, or any amend-
ment or supplement, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in
conformity with information furnished in writing to the Com-
pany or its representatives by or on behalf of such Seller or
underwriter for use in the preparation of such Registration
Statement, preliminary, final or summary Prospectus or amend-
ment or supplement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or
on behalf of the Company or any Company Indemnitee and shall
survive the transfer of such securities by such Seller.
(c) Notices of Claims, Etc. Promptly after re-
ceipt by an indemnified party hereunder of written notice of
the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to
this Section 7, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such
-17-
action; provided, however, that the failure of any indemni-
fied party to give notice as provided herein shall not re-
lieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 7, except to the extent
that the indemnifying party is actually and materially preju-
diced by such failure to give notice. If any such claim or
action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly noti-
fied indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party;
provided, however, that if, in the indemnified party's rea-
sonable judgment, a conflict of interest between the indem-
nified party and the indemnifying party exists in respect of
such claim, then such indemnified party shall have the right
to participate in the defense of such claim and to employ one
firm of attorneys at the indemnifying party's expense to rep-
resent such indemnified party. Once the indemnifying party
has assumed the defense of any claim, no indemnified party
will consent to entry of any judgment or enter into any set-
tlement without the indemnifying party's consent to such
judgment or settlement, which shall not be unreasonably with-
held.
(d) Other Indemnification. Indemnification simi-
lar to that specified in the preceding paragraphs of this
Section 7 (with appropriate modifications) shall be given by
the Company and each Seller of Registrable Shares with re-
spect to any required registration or other qualification of
securities under any state securities and "blue sky" laws.
(e) Contribution. If the indemnification provided
for in this Section 7 is unavailable or insufficient to hold
harmless an indemnified party under Section 7(a) or (b)
hereof, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in
Section 7(a) or (b) hereof in such proportion as is appropri-
ate to reflect the relative fault of the indemnifying party
on the one hand and the indemnified party on the other hand
in connection with statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying par-
ty or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct
-18-
or prevent such untrue statement or omission. The Company
agrees, and the Sellers (in consideration of the Company's
including any Registrable Shares in any Registration State-
ment filed in accordance with Section 2, 3 or 6 hereof) shall
be deemed to have agreed, that it would not be just and equi-
table if contributions pursuant to this Section 7(e) were to
be 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 first sentence of this Sec-
tion 7(e). The amount paid by an indemnified party as a re-
xxxx of the losses, claims, damages or liabilities referred
to in the first sentence of this Section 7(e) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any action or claim (which shall be limited as pro-
vided in Section 7(c) hereof if the indemnifying party has
assumed the defense of any such action in accordance with the
provisions thereof) which is the subject of this Section
7(e). 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. Promptly after
receipt by an indemnified party under this Section 7(e) of
notice of the commencement of any action against such party
in respect of which a claim for contribution may be made
against an indemnifying party under this Section 7(e), such
indemnified party shall notify the indemnifying party in wri-
ting of the commencement thereof if the notice specified in
Section 7(c) hereof has not been given with respect to such
action; provided, however, that the omission so to notify the
indemnifying party shall not relieve the indemnifying party
from any liability which it may have to any indemnified party
otherwise under this Section 7(e), except to the extent that
the indemnifying party is actually and materially prejudiced
by such failure to give notice. Notwithstanding anything in
this Section 7(e) to the contrary, no indemnifying party
(other than the Company) shall be required pursuant to this
Section 7(e) to contribute any amount in excess of the pro-
ceeds received by such indemnifying party from the sale of
Registrable Shares in the offering to which the losses,
claims, damages or liabilities of the indemnified parties
relate.
8. Rule 144.
During the Standstill Period, the Company shall
file the reports required to be filed by it under the Securi-
ties Act and the Exchange Act and the rules and regulations
promulgated thereunder, and shall take such further action as
any Seller may reasonably request, all to the extent required
-19-
from time to time to enable such Seller to sell Registrable
Shares without registration under the Securities Act within
the limitations of the exemptions provided by Rule 144 (sub-
ject in all cases to any additional limitations or restric-
tions on such sales set forth in the Stock Purchase Agree-
ment).
9. Agreements of Participating Sellers.
In connection with any registration of Registrable
Shares pursuant to this Agreement, the Sellers who request to
participate in such registration statement shall (i) xxxxxx-
ate with the underwriters, the Company and their respective
counsel in connection with the preparation of the registra-
tion statement, (ii) enter into an underwriting agreement in
customary form, and (iii) complete, execute and/or cause to
be delivered all customary questionnaires, powers of attor-
ney, certificates, opinions and other documents required un-
der the terms of such underwriting agreements.
10. Holdback Agreements.
(a) Restrictions on Public Sales by Sellers. To
the extent not inconsistent with applicable law, each Seller
that is timely notified in writing by the lead underwriter or
underwriters shall not effect any public sale or distribution
(including a sale pursuant to Rule 144) of any issue being
registered in an underwritten offering (other than pursuant
to an employee stock option, stock purchase, stock bonus or
similar plan, pursuant to a merger, an exchange offer or a
transaction of the type specified in Rule 145(a) under the
Securities Act), any securities of the Company similar to any
such issue or any securities of the Company convertible into
or exchangeable or exercisable for any such issue or any sim-
ilar issue, during the 10-day period prior to the effective
date of the applicable registration statement, or during the
period beginning on such effective date and ending on the
later of (i) the completion of the distribution of such secu-
rities pursuant to such offering and (ii) 90 days after such
effective date, except as part of such registration; pro-
vided, however that nothing in this Section 10(a) shall be
construed as a waiver by the Company of any provision of Sec-
tion 6 of the Stock Purchase Agreement applicable to Sellers.
(b) Restrictions on Public Sales by the Company.
The Company shall not effect any public sale or distribution
of any issue of the same class or series as Registrable
Shares being registered in an underwritten offering (other
than pursuant to an employee stock option, stock purchase,
stock bonus or similar plan, pursuant to a merger, exchange
-20-
offer or a transaction of the type specified in Rule 145(a)
under the Securities Act or pursuant to a "shelf" registra-
tion), any securities of the Company similar to any such is-
xxx or any securities of the Company convertible into or ex-
changeable or exercisable for any such issue, during the 10-
day period prior to the effective date of the applicable reg-
istration statement, or during the period beginning on such
effective date and ending on the later of (i) the completion
of the distribution of such securities pursuant to such of-
fering and (ii) 90 days after such effective date, except as
part of such registration; provided, however, that the Com-
pany may in no event make such public sale or distribution
between the date hereof and the date the registration state-
ment relating to the Secondary Offering is declared effective
or withdrawn, as the case may be.
11. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be
amended and the Company may take any action herein prohib-
ited, or omit to perform any act herein required to be per-
formed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act,
of the Sellers of at least a majority of the Registrable
Shares then outstanding (and, in the case of any amendment,
action or omission to act that adversely affects any Seller
or group of Sellers differently from any of the other Sell-
ers, the written consent of such Seller or group of Sellers).
Sellers shall be bound from and after the date of the receipt
of a written notice from the Company setting forth such
amendment or waiver by any consent authorized by this Section
11(a), whether or not the certificates representing such Reg-
istrable Shares shall have been marked to indicate such con-
sent.
(b) Successors, Assigns and Transferees. This
Agreement shall be binding upon and shall inure to the ben-
efit of the Company, the Sellers and their respective succes-
sors, assigns and transferees; provided, however, that noth-
ing set forth herein shall be construed to permit any Seller
to effect any sale, transfer or other disposition of, or take
any action with respect to, any Registrable Shares that would
not be permitted by the Stock Purchase Agreement.
(c) Integration. This Agreement and the documents
referred to herein or delivered pursuant hereto that form a
part hereof contain the entire understanding of the Company
and the Sellers with respect to its subject matter. There
are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the
-21-
subject matter hereof other than those expressly set forth
herein. This Agreement supersedes all prior agreements and
understandings between the Company and the Sellers with re-
spect to its subject matter.
(d) Notices. All notices hereunder shall be suf-
ficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery
service or, to the extent receipt is confirmed, telecopy,
telefax or other electronic transmission service to the ap-
propriate address or number as set forth below. Notices to
any Seller shall be addressed to the address of such Seller
set forth in Schedule 1 to the Stock Purchase Agreement (it
being understood that only one copy of a notice is required
to be sent to any trustee, which notice shall be deemed to be
sufficient as to each Seller for which such trustee is acting
in such capacity) with copies to:
Xx. Xxxxxx Xxx Xxxxxx
6190 So. Xxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telecopy No.: (000) 000-0000
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or at such other address and to the attention of such other
person as any Seller may designate by written notice to the
Company. Notices to the Company shall be addressed to:
American Stores Company
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
(1) Attn: Xxxxxxxx X. XxXxxxxxx
Telecopy No.: (000) 000-0000
(2) Attn: Xxxxxx Xxxx
Telecopy No.: (000) 000-0000
-22-
and
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy No: (000) 000-0000
or at such other address and to the attention of such other
persons the Company may designate by written notice to Sell-
ers.
(e) Descriptive Headings. The headings in this
Agreement are for convenience of reference only and shall not
limit, expand or otherwise affect the meaning of the terms
contained herein.
(f) Severability. In the event that any one or
more of the provisions, paragraphs, words, clauses, phrases
or sentences contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word,
clause, phrase or sentence in every other respect and of the
remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being
intended that all rights, powers and privileges of the Com-
pany and the Sellers shall be enforceable to the fullest ex-
tent permitted by law.
(g) Governing Law. This Agreement shall be gov-
erned by and construed and enforced in accordance with the
laws of the State of Delaware, without regard to the prin-
ciples of conflicts of laws thereof, as if it were a contract
between the Company and the Sellers made and to be performed
entirely within that State.
(h) Termination. This Agreement shall terminate,
and thereby become null and void, at the end of the Demand
Registration Period; provided, however, that the provisions
of Section 7 hereof shall survive the termination of this
Agreement.
(i) Sellers' Obligation Several. All of the obli-
gations of the Sellers under this Agreement shall be several
and not joint, and no Seller shall be liable for any breach
hereof by any other Seller.
-23-
IN WITNESS WHEREOF, this Agreement has been signed
by or on behalf of each of the parties as of the day first
above written.
AMERICAN STORES COMPANY
By:/s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Chief Financial Officer
XXXXXX XXX XXXXXX
/s/ Xxxxxx Xxx Xxxxxx
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
ALSAM TRUST
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
By:/s/ Xxxxxxx Xxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxx Xxxxxxxx
Title: Trustee
By:/s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Trustee
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
[REGISTRATION RIGHTS AGREEMENT]
S-1
SIX S RANCH, INC.
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALSAM FOUNDATION
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President and
Executive Director
XXXXXX FAMILY FOUNDATION FOR
ROMAN CATHOLIC AND
COMMUNITY CHARITIES
By:/s/ J. Xxxxxxxx Xxxxxxxxxx
Name: J. Xxxxxxxx Xxxxxxxxxx
Title: President
XXXXXX INSTITUTE FOR
RESEARCH
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXX XXX XXXXXXXX
/s/ Xxxxx Xxx Xxxxxxxx
XXXXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxxxx
[REGISTRATION RIGHTS AGREEMENT]
S-2
