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 purchasers listed on the signature
page herein, together with their permitted transferees (the "Purchasers").
W I T N E S S E T H
WHEREAS, the Company has entered into a stock purchase
agreement with each of the respective Purchasers whereby the Company has agreed
to sell and the Purchasers have agreed to buy (collectively, the "Purchase
Agreements") shares of the Company's Common Stock; and;
WHEREAS, in connection with the sale of the Purchase Shares to
the Purchasers, the Company has agreed to provide the Purchasers with 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 "Aggregate Purchase Price Proportion" with respect to each
Purchaser shall mean a fraction, (x) the numerator of which shall be the product
of (i) the number of Purchase Shares purchased by such Purchaser and (ii) the
Purchase Price per Share, and (y) the denominator of which shall be the product
of (i) the number of Purchase Shares purchased by all of the Purchasers and (ii)
the Purchase Price per Share.
1.2 "Blackout Period" shall have the meaning set forth in
Section 2.1(d).
1.3 "Closing Date" shall have the meaning set forth in the
Purchase Agreements.
1.4 "Commission" shall mean the Securities and Exchange
Commission or any federal agency at the time administering the Securities Act.
1.5 "Common Stock" shall mean the common stock of the Company,
par value $1.00 per share.
1.6 "Effectiveness Deadline Date" shall have the meaning set
forth in Section 2.1(b).
1.7 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any federal statute then in effect which has replaced such
statute.
1.8 "Filing Deadline" shall mean the date the Company is
obligated to file a registration statement pursuant to Section 2.1(a).
1.9 "Holder" shall mean each Purchaser 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 holds or beneficially
owns any Registrable Securities.
1.10 "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.
1.11 "Purchase Price" shall have the meaning set forth in the
Purchase Agreements.
1.12 "Purchase Shares" shall mean the shares of Common Stock
purchased by the Purchasers pursuant to the Purchase Agreements.
1.13 "Registrable Securities" shall mean the Purchase Shares,
provided that 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
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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.
1.14 "Rule 144" shall mean Rule 144 promulgated under the
Securities Act.
1.15 "Securities Act" shall mean the Securities Act of 1933,
as amended, or any federal statute then in effect which has replaced such
statute.
1.16 "Shelf Registration Statement" shall have the meaning set
forth in Section 2.1(a).
ARTICLE II
Registration Rights
2.1 Shelf Registration
(a) The Company will use its best efforts to prepare and
file with the Commission, as soon as practicable, but in any event, no later
than the date that is twenty (20) days after the Closing Date, a shelf
registration statement on Form S-1 or any other appropriate form (it being
understood by all parties that the Company will not be eligible to use Form S-3
prior to October 11, 2001) under Rule 415 of the Securities Act, or any similar
rule that may be adopted by the Commission relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such shelf
registration statement (together with all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the prospectus contained therein, all exhibits thereto and all
material incorporated by reference thereto, the "Shelf Registration Statement"),
provided that the Company may also register for sale on its own account or that
of any other holder of equity securities of the Company pursuant to the Shelf
Registration Statement such additional shares of the Company's stock as it shall
desire.
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(b) The Company will use its best efforts to cause the
registration statement filed pursuant to Section 2.1(a) to be declared effective
as soon as reasonably practicable but not later than ninety (90) days after the
date of the Purchase Agreements (the "Effectiveness Deadline Date"), and subject
to Section 2.1(d), to remain effective for a period ending on the earlier of (i)
the date two years after the date the Commission declares the Shelf Registration
Statement effective, and (ii) the date on which there ceases to be any
Registrable Securities outstanding.
(c) Each Holder of Registrable Securities that wishes to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related prospectus agrees to deliver a notice and questionnaire in the form
attached hereto as Exhibit A (a "Notice and Questionnaire") at least three (3)
business days prior to the intended distribution of Registrable Securities under
the Shelf Registration Statement. Provided that the Shelf Registration Statement
has been declared effective, the Company shall, as promptly as is practicable
after a Holder has delivered a Notice and Questionnaire and such other
information as the Company may reasonably require, (i) if required by applicable
law, file with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file a
supplement to the related prospectus or amendment to any document incorporated
therein by reference or file any other required document so that such Holder is
named as a selling security holder in the Shelf Registration Statement and the
related prospectus in such a manner as to permit such Holder to deliver such
prospectus to the purchaser of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement, use its best efforts to cause such post-effective
amendments to be declared effective under the Act as promptly as is practicable,
(ii) provide such Holder with such number of copies of any documents filed
pursuant to the foregoing as the Holder shall reasonably request and (iii)
notify such Holder as promptly as practicable after the effectiveness of any
post-effective amendment filed hereunder provided, however, that if the Notice
and Questionnaire is delivered during a Blackout Period, the Company shall so
inform the Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (i), (ii) and (iii) above upon expiration of the
Blackout Period in accordance with Section 2.1(d) hereof.
(d) Notwithstanding anything to the contrary contained in
this Agreement, the Company shall have the right to delay the effectiveness of
the Shelf Registration Statement or to suspend, after the lapse (except as
provided below) of a period of sixty (60) days after the effective date of such
Shelf Registration Statement, the right of a Holder to sell Registrable
Securities under an effective Shelf Registration Statement, during no more than
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(2) periods aggregating to not more than seventy-five (75) days in any
twelve-month period (a "Blackout Period") in the event that (i) (a) the Company
would, in accordance with the reasonable advice of its counsel, be required to
disclose in the prospectus, information not otherwise required by law to be
publicly disclosed, and (b) in the reasonable judgment of the Board of Directors
of the Company, there is a reasonable likelihood that such disclosure, or any
other action to be taken in connection with the prospectus, would materially and
adversely affect or interfere with any financing, acquisition, merger, material
joint venture, disposition of assets (not in the ordinary course of business),
corporate reorganization or other similar transaction involving the Company, or
(ii) a change to the Shelf Registration Statement is required so that, as of
such date, the Shelf Registration Statement and prospectus do 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,
provided, however, that during any such Blackout Period, the Company shall also
delay the filing, effectiveness and usage of any registration statement with
respect to any securities of the Company or any other shareholder of the
Company. The Company shall promptly give the Holders written notice of such
determination containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay; and provided
further, however, that the implementation of any Blackout Period shall be done
in good faith, and not for the purpose or intention of impeding such rights.
Notwithstanding anything to the contrary contained in this Section 2.1(d), the
Company may cause one or more additional Blackout Periods (each, an "Additional
Blackout Period"), in order to file a post effective amendment to the Shelf
Registration Statement to: (i) include and update the Company's financial
statements for the Company's first fiscal quarter ending June 2, 2001, which
post effective amendment will be filed with the Commission not later than the
three (3) business days following the date the Company files its Quarterly
Report on Form 10-Q for such quarter with the Commission, and (ii) include and
update the Company's financial statements for the Company's second quarter
ending September 1, 2001, which post effective amendment will be filed with the
Commission not later than the three (3) business days following the date the
Company files its Quarterly Report on Form 10-Q for such quarter with the
Commission. No Additional Blackout Period shall count against the Blackout
Periods permitted above, provided, that, the Commission declares the post
effective amendment which resulted in the Additional Blackout Period effective
not later than the twentieth (20) day following the date the Company files such
post effective amendment with the Commission. In the event the Commission does
not declare any such post effective amendment effective within such twenty-day
period, then such Additional Blackout Period shall count as a Blackout Period.
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(e) The Holders of at least a majority of the then
outstanding Registrable Securities may elect to sell Registrable Securities in
an underwritten offering in accordance with the conditions set forth in this
Section 2.1(e). In any such underwritten offering, the investment banker or
bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto will be
approved by a majority in interest of the Holders, subject, in each case, to the
consent of the Company, which consent will not be unreasonably withheld, and the
Holders will be responsible for all underwriting commissions and discounts with
respect to the Purchase Shares sold by such Holder, in connection therewith. The
Company shall not be obligated to arrange for more than two underwritten
offering pursuant to the Shelf Registration Statement. No Holder may participate
in any underwritten offering hereunder unless the Holder (i) agrees to sell the
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved pursuant hereto and (ii) completes and executes all other
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
2.2 Piggyback Registration.
(a) If (A) (i) the Company has not filed the Shelf
Registration Statement, or (ii) the Company is no longer obligated to maintain
the effectiveness of the Shelf Registration Statement pursuant to Section
2.1(b) above and the Holder, together with its affiliated Holders, holds or
beneficially owns at least one percent (1%) of the Company's outstanding Common
Stock, and (B) 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"), then the Company will promptly
give each Holder written notice thereof and, subject to Section 2.2(c), shall
include in such registration all Registrable Securities requested to be included
therein pursuant to the written requests of Holders received within 20 days
after delivery of the Company's notice.
(b) If the Piggyback Registration relates to an
underwritten public offering, the Company shall so advise the Holders as part of
the written notice given pursuant to Section 2.2(a). In such event, the right of
any Holder to participate in such registration shall be conditioned upon such
Holder's participation in such underwriting in accordance with the terms and
conditions thereof. The Board of Directors shall have the right to select the
managing underwriter(s) for any under written Piggyback Registration. All
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Holders proposing to distribute their Registrable Securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form.
(c) If such proposed Piggyback Registration is an under
written offering and the managing underwriter for such offering advises the
Company that the securities requested to be included therein exceeds the amount
of securities that can be sold in such offering, any securities to be sold by
the Company or other holders of the Company's securities initiating such
offering or otherwise contractually entitled to be included in such offering
prior to the Holders of the Registrable Securities 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 and not having priority over the Holders in such registration shall
be reduced pro rata on the basis of the percent age of the then outstanding
Registrable Securities held by each such Holder and all other holders exercising
similar registration rights.
(d) Notwithstanding the provisions of this Section 2.2,
the Company shall have the right at any time after it shall have given written
notice to the Holders pursuant to Section 2.2 (irrespective of whether a written
request for inclusion of any such securities shall have been made) to elect not
to file any such proposed registration statement, or to withdraw the same after
filing but prior to effectiveness.
2.3 Expenses of Registration. All expenses incurred in
connection with the registrations described herein shall be borne by the
Company, including, in the case of an underwritten offering, the fees of one
counsel selected by a majority of the Holders of the Registrable Securities
participating in such underwritten offering, 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 involving the registration
of Registrable Securities, the Company will keep each Holder advised in writing
as to the initiation of such registration and as to the completion thereof. At
its expense, the Company will use its best efforts to:
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(a) cause such registration to be declared effective by
the Commission;
(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, including
in the case of a Shelf Registration Statement such amendments and supplements as
are necessary to effect and maintain the effectiveness of such registration
statement for the period specified in Section 2.1(b);
(c) provide (i) the Holders of the Registrable Securities
to be included in such registration statement, (ii) 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, (iii) the sales or placement agent therefor, if any, (iv) counsel for
such underwriters or agent, and (v) not more than one counsel for all the
Holders of such Registrable Securities the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment or supplement thereto;
(d) (i) 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 (ii) 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;
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(f) promptly notify the selling Holders of Registrable
Securities, the sales or placement agent, if any, therefor and the managing
under writer or underwriters, if any, thereof and confirm such advice in
writing, (i) 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, (ii) 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, (iii) 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, (iv) 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 (v) 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 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;
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(i) furnish to each Holder of Registrable Securities
included in such registration statement, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective counsel referred
to in Section 2.4(c) an executed copy of such registration statement, each such
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically and reasonably so
requested by such Holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements of
the Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and any amendment
or supplement thereto by each such Holder and by any such agent and underwriter,
if any, in each case in the form most recently provided to such party by the
Company, in connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(j) cause all Registrable Securities covered by such
registration to be listed on each securities exchange or inter-dealer quotation
system on which similar securities issued by the Company are then listed;
(k) provide a transfer agent and registrar for all
Registrable Securities covered by such registration and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration;
(l) cooperate with the Holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends;
(m) 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
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broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules of Conduct; and
(n) 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).
(o) 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 offering pursuant to Section
2.1(e) herein, the Company will enter into an agreement with the Underwriters
containing reasonable and customary terms and conditions, including, without
limitation, representations, warranties and indemnities.
2.5 Delivery of Prospectus Supplement. Subject to Section
2.1(d) herein, 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
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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 request in writing. Each such Holder agrees
to promptly notify the Company 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 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, 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, any amendment thereto, 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, or arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
prospectus, or any amendment thereto, 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 in light of the circumstances in which
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they were made, and will reimburse each such indemnified person for any
reasonable legal and 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 alleged untrue
statement or omission or alleged omission based upon information furnished in
writing 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, each other such Holder and each of their officers, directors,
partners, agents, employees and representatives and each person controlling
such Holder, and each underwriter, if any, of such Registrable Securities and
each Person who controls any such underwriter, against all expenses, claims,
losses, damages and liabilities (or actions, proceedings or settlements in
respect thereof) arising out of or based on any untrue statement or alleged
untrue statement of a material fact contained in any registration statement, any
amendment thereto, 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, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
prospectus, or any amendment thereto, 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 in light of the circumstances in which
they were made, and will reimburse such indemnified persons for any reasonable
legal or 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 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;
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provided, that (x) no Holder shall be liable hereunder for any amounts, together
with all previous payments under this Section 2.7(b), in excess of the net
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), 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
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
14
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) at such time as any Registrable Securities are
eligible for transfer under Rule 144(k), upon the request of the Holder of such
Registrable Securities, remove any restrictive legend from the certificates
evidencing such Registrable Securities at no cost to such Holder;
(b) make and keep available public information as defined
in Rule 144 under the Securities Act at all times;
(c) 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
(d) 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
15
regulation of the Commission (including Rule 144A) allowing a Holder of
Registrable Securities to sell any such Registrable Securities without
registration.
ARTICLE III
Liquidity Enhancement
3.1 If the Shelf Registration Statement is not declared
effective by the Commission on or prior to the Effectiveness Deadline Date, the
Company will pay in cash to each respective Purchaser, ("Liquidity
Enhancement"), an amount equal to the product of $10,000 and such Purchaser's
Aggregate Purchase Price Proportion for each day in the period beginning on the
Effectiveness Deadline Date and ending on the date the Commission declares the
Shelf Registration Statement effective. The Company will pay any Liquidity
Enhancement accrued and owed to a Purchaser on the first business day of each
month.
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
16
stock split, stock dividend or stock combination, the provisions of this
Agreement shall be appropriately adjusted.
5.2 Injunctive Relief. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved Person
will be irreparably damaged and will not have an adequate remedy at law. Any
such Person shall, therefore, in addition to any other remedies available under
applicable law, be entitled to 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 the transfer of Registrable Securities by such Holder.
17
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. Notwithstanding the foregoing, no
amendment may be made to this Agreement that adversely affects (i) any Holder
without the consent of such Holder, or (ii) all of the members of any group of
Holders (a "Group") differently from any other group of Holders, except with the
consent of more than a majority of the Holders in interest of such adversely
affected Group.
(b) No provision of this Agreement may be waived orally,
but only by a written instrument signed by the party against whom enforcement of
such waiver is sought. Holders shall be bound from and after the date of the
receipt of a written notice from the Company setting forth such amendment or
waiver, whether or not the Registrable Securities shall have been marked to
indicate such amendment or waiver.
5.6 Notices. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing
(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
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
18
if to a Purchaser, at the address set forth on the
signature page attached hereto:
Any Purchaser may, by written notice given to the Company in accordance with
this Section 5.6, change the address to which such notice or other
communications are to be sent to it. All such notices and communications shall
be deemed to have been given on the date of delivery thereof, if delivered by
hand, on the fifth day after the mailing thereof, if mailed, on the next day
after the sending thereof, if by overnight courier and when receipt is
acknowledged, if telecopied.
5.7 Inspection. So long as this Agreement shall be in effect,
this Agreement and any amendments hereto shall be made available for inspection
by any Holder at the principal offices of the Company.
5.8 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
5.9 Headings. Article, section and paragraph headings are
inserted for convenience only and do not constitute a part of this Agreement.
5.10 Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof. There
are no restrictions, agreements, promises, representations, warranties,
covenants or under takings with respect to the subject matter hereof other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and 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.
19
5.12 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart.
5.13 Notice of Limitation of Liability. A copy of the
Agreement and Declaration of Trust of each Xxxxxx fund or series investment
company and 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.
20
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth above.
RITE AID CORPORATION
By:_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Executive Vice President and
General Counsel
21
AMERICAN CENTURY MUTUAL
FUNDS, INC. (on behalf of its Vista series
of Shares)
By:_______________________________________
Name:
Title:
AMERICAN CENTURY WORLD
MUTUAL FUNDS, INC. (on behalf of its
Global Growth series of shares)
By:_______________________________________
Name:
Title:
22
XXXXXXX GLOBAL EQUITY MASTER
By:_______________________________________
Name:
Title:
QUANTUM PARTNERS XXXXXXX
GLOBAL
By:_______________________________________
Name:
Title:
23
INSERT FIDELITY SIGNATURE PAGE
24
INSERT XXXXXX SIGNATURE PAGE
25
EXHIBIT A
Selling Securityholder Notice and Questionnaire
The undersigned Holder of shares of the common stock of Rite Aid
Corporation (the "Company") that are Registrable Securities (as that term is
defined in the Registration Rights Agreement, dated as of June ___, 2001 (the
"Registration Rights Agreement") by and among the Company and the Purchasers (as
defined in the Registration Rights Agreement), understands that the Company has
filed with the Securities and Exchange Commission (the "Commission" a
registration statement (the "Shelf Registration Statement" for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"). All capitalized terms not otherwise defined herein shall have
the meaning ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to the purchaser of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below). Beneficial owners are required to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, as promptly as practicable,
file such amendments to the Shelf Registration Statement or supplements to the
related prospectus as are necessary to permit such Holder to deliver such
prospectus to the purchaser of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
A-1
Notice
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3) below
are held:
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) through which Registrable Securities listed in
(3) below are held:
2. Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
A-2
(b) CUSIP No(s). of such Registrable Securities beneficially owned:
4. Beneficial Ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other than the
Registrable Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
(b) CUSIP No(s). of such Other Securities beneficially owned:
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or their predecessors or affiliates)
during the past three years.
State any exceptions here:
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as
follows if at all):
A-3
(a) block trades in which the broker or dealer so engaged will attempt
to sell the securities as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
(b) purchases by a broker or dealer as principal and resale by the
broker or dealer for its own account pursuant to this prospectus;
(c) an exchange distribution in accordance with the rules of any stock
exchange on which the securities are listed;
(d) ordinary brokerage transactions and transactions in which the
broker solicits purchases;
(e) privately negotiated transactions;
(f) short sales;
(g) through the writing of options on the securities, whether or the
options are listed on an options exchange;
(h) through the distribution of the securities by any selling security
holder to its partners, members or stockholders;
(i) one or more underwritten offerings on a firm commitment or best
efforts basis; and
(j) any combination of any of these methods of sale.
State any exceptions here:
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Exchange Act and the rules thereunder relating
to stock manipulation, particularly Regulation M thereunder (or any successor
rules or regulations), in connection with any offering of Registrable Securities
pursuant to the Shelf Registration Statement. The undersigned agrees that
neither it nor any person acting on its behalf will engage in any transaction in
violation of such provisions.
A-4
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholders against
certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided. herein that may occur subsequent to the date hereof at anytime while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
A-5
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Beneficial Owner
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE TO RITE AID CORPORATION. AT:
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Senior Executive Vice President and
General Counsel
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
A-6