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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) FEBRUARY 11, 1997
RITE AID CORPORATION
(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-5742 23-1614034
(State of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
30 HUNTER LANE, CAMP HILL, PENNSYLVANIA 17011
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (717) 761-2633
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ITEM 5. OTHER EVENTS
On December 12, 1996, Rite Aid Corporation (the "Company") acquired
Thrifty PayLess Holdings, Inc. ("Thrifty PayLess") pursuant to a merger of
Thrifty PayLess into the Company (the "Merger"). In connection with the Merger,
the Company entered into an agreement (the "Stockholder Agreement") with Green
Equity Investors, L.P. ("GEI"), pursuant to which, among other things, the
Company granted GEI certain registration rights with respect to 9,344,571 shares
(the "Shares") of common stock, par value $1.00 per share, of the Company
("Common Stock") that GEI acquired as a result of the Merger.
Pursuant to its obligations under the Stockholder Agreement, the
Company filed a Registration Statement (File No. 333-21207) with the Securities
and Exchange Commission relating to the Shares, which Shares have been
distributed by GEI to its partners (collectively, the "Selling Stockholders").
On February 11, 1997, the Company entered into an Underwriting
Agreement with certain of the Selling Stockholders and Morgan Stanley & Co.
Incorporated pursuant to which such Selling Stockholders have agreed to sell
an aggregate of 3,410,256 shares of Common Stock.
The Company will not receive any of the proceeds from the sale of the
shares of Common Stock by the Selling Stockholders.
ITEM 7. FINANCIAL STATEMENTS, PRO-FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits:
1.1 -- Underwriting Agreement, dated February 11, 1997, among Rite
Aid Corporation, the Selling Stockholders identified in
Schedule 1 thereto and Morgan Stanley & Co. Incorporated.
4.1 -- Stockholder Agreement, dated as of October 13, 1996, among
the Company, GEI and certain individual stockholders named
therein (previously filed as Exhibit 2.2 to the Company's
Registration Statement (File No. 333-14759) and incorporated
herein by reference).
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
RITE AID CORPORATION
By: /s/ Richard Varmecky
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Richard Varmecky, Vice President and Treasurer
Date: February 11, 1997
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
------ -------
1.1 -- Underwriting Agreement, dated February 11, 1997, among Rite Aid
Corporation, the Selling Stockholders identified in Schedule 1
thereto and Morgan Stanley & Co. Incorporated.
4.1 -- Stockholder Agreement, dated as of October 13, 1996, among the
Company, GEI and certain individual stockholders named therein
(previously filed as Exhibit 2.2 to the Company's Registration
Statement (File No. 333-14759) and incorporated herein by
reference).
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CONFORMED COPY
RITE AID CORPORATION
Common Stock
____________________
Underwriting Agreement
----------------------
February 11, 1997
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
1. Subject to all the terms and conditions set forth herein, each of
the stockholders named in Schedule I hereto (each a "Selling Stockholder" and
collectively the "Selling Stockholders" ) of Rite Aid Corporation, a Delaware
corporation (the "Company"), agrees, severally and not jointly, to sell to
Morgan Stanley & Co. Incorporated (the "Underwriter"), and the Underwriter
agrees to purchase from such Selling Stockholder, at the time and place and at
the purchase price to the Underwriter set forth on Schedule II hereto, the
number of shares of Common Stock, $1.00 par value (the "Common Stock"), of the
Company set forth opposite the name of such Selling Stockholder on Schedule I
hereto (the "Securities"). The manner of delivery and payment for the
Securities shall be as set forth on Schedule II hereto.
2. The Company represents and warrants to, and agrees with, the
Underwriter and each of the Selling Stockholders that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-21207)
relating to the Securities and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"); such registration statement and any post-effective amendment
thereto, in the form heretofore delivered or to be delivered to the
Underwriter (with exhibits thereto), has been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
been filed or transmitted for filing with the Commission prior to the
effective
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2
date of such registration statement; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission. Any preliminary prospectus in
relation to the Securities included in such registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement, including
all exhibits thereto, as amended at the time such part of the registration
statement became effective are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the
form in which it has most recently been filed or transmitted for filing
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or Prospectus, as the
case may be, shall be deemed to include any documents filed after such date
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the Securities in the
form in which it is first filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the
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Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary or make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter or by
any Selling Stockholder, for use in the Prospectus as amended or
supplemented relating to the Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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 (i) in the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter or by any Selling Stockholder,
for use in the Prospectus as amended or supplemented relating to the
Securities;
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware;
(e) The Securities have been duly authorized and validly issued, are
fully paid and nonassessable and are free of any preemptive or similar
rights; and the Securities conform, in all material respects, to the
description thereof contained in the Prospectus as amended or supplemented
with respect to the Securities;
(f) The compliance by the Company with all of the provisions of this
Agreement, and the consummation of the transactions herein contemplated
will not (1) conflict with or result in a breach or violation by the
Company of any of the terms or provisions of, or constitute a default by
the Company under, any indenture, mortgage, deed of trust, loan agreement
or other similar agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the property or assets of
the Company is subject, except, in all such cases, for such conflicts,
breaches, violations or defaults as would not have a material adverse
effect on the financial condition of the Company and its subsidiaries taken
as a
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whole, and (2) result in any violation of (A) the provisions of the
Restated Certificate of Incorporation or By-Laws of the Company or (B) any
statute, order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties, which
order, rule or regulation is applicable to the Company; provided, however,
that in the case of clause (B) of this paragraph 2(f), this representation,
warranty and agreement shall not extend to such violations as would not
have a material adverse effect on the financial condition of the Company
and its subsidiaries taken as a whole;
(g) No consent, approval, authorization, order, registration, filing
or qualification of or with any court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been, or will have been
obtained prior to the "Time of Delivery" (as defined in Section 4), under
the Act and such consents, approvals, authorizations, orders,
registrations, filings or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter, and except those which,
if not obtained, will not have a material adverse effect on the financial
condition of the Company and its subsidiaries taken as a whole;
(h) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(i) The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement have been duly and validly
authorized by the Company, and this Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that the
enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally, and by
general equitable principles; and
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(j) Except as previously disclosed to you in writing, no holder of any
security of the Company has any right (except as has been satisfied or
waived) to require registration of shares of Common Stock or any other
security of the Company because of the filing of the Registration Statement
or consummation of the transactions contemplated by this Agreement.
3. Each of the Selling Stockholders represents and warrants to, and
agrees with, the Company and the Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Securities to
be sold by such Selling Stockholder hereunder and upon sale and delivery
of, and payment for, such Securities, as provided herein, such Selling
Stock holder will transfer the ownership interest in such Securities, free
and clear of all liens, encumbrances, equities and claims whatsoever;
(b) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder;
(c) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities
and has not effected any sales of shares of Common Stock which, if effected
by the issuer, would be required to be disclosed in response to Item 701 of
Regulation S-K;
(d) No consent, approval, authorization or order of, filing with, or
qualification of or with any court or governmental agency or body is
required to be obtained or made by such Selling Stockholder for the sale of
the Securities, except such as have been, or will have been obtained and
made under the Act and the Exchange Act prior to the Time of Delivery, and
such consents, approvals, authorizations, orders, registrations, filings or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Securities by the
Underwriter;
(e) The sale of the Securities and the compliance by such Selling
Stockholder with all of the provisions of this Agreement, and the
consummation of the transactions herein contemplated will not (1) result in
a breach or violation by such Selling Stockholder of any of the terms or
provisions of, or constitute a default by such Selling Stockholder under,
any material agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of the
material property or material assets of such Selling Stockholder is
subject, other than, any violations that would not individually or in the
aggregate
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6
affect such Selling Stockholder's ability to consummate the transactions
contemplated by or perform its obligations under this Agreement, and (2)
result in any violation of (A) the provisions of the certificate of
incorporation, bylaws, partnership agreement or other constituent document,
as applicable, of such Selling Stockholder or (B) any statute, order, rule
or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or any of its properties, which
order, which order, rule or regulation is applicable to such Selling
Stockholder; and
(f) Such Selling Stockholder has duly executed a power of attorney
irrevocably appointing Frederick H. Schneider, Jr. its true and lawful
attorney-in-fact, with full power and authority to execute, acknowledge and
deliver this Agreement on behalf of such Selling Stockholder.
In respect of any statements in or omissions from the Registration
Statement, the Preliminary Prospectus or the Prospectus or any supplement
thereto made in reliance upon and in conformity with information furnished in
writing to the Company by any Selling Stockholder specifically for use in
connection with the preparation thereof, such Selling Stockholder hereby makes
the same representations and warranties to the Underwriter as the Company makes
to the Underwriter and the Selling Stockholders under subparagraphs (b) and (c)
of Section 2.
4. The Securities to be purchased by the Underwriter from any Selling
Stockholder, in definitive form to the extent practicable, and registered in
such names as the Underwriter may request upon at least forty-eight hours' prior
notice to such Selling Stockholder, shall be delivered by or on behalf of such
Selling Stockholder to the Underwriter, against payment by the Underwriter or on
its behalf of the purchase price therefor by certified or official bank check or
checks, payable to the order of such Selling Stockholder or, if so requested by
such Selling Stockholder, by wire transfer to a bank account designated by such
Selling Stockholder, all at the place and time and date specified in Schedule II
hereto or at such other place and time and date as the Underwriter, the Company
and the Selling Stockholders may agree upon in writing, such time and date being
herein called the "Time of Delivery".
5. The Company agrees with the Underwriter and each of the Selling
Stockholders:
(a) To prepare the Prospectus as amended and supplemented in relation
to the Securities and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such other time as may be required by Rule 424(b); to advise
the Underwriter promptly of any proposal to amend or supplement the
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Registration Statement or Prospectus as amended or supplemented after the
date hereof and prior to the Time of Delivery, and afford the Underwriter a
reasonable opportunity to comment on any such proposed amendment or
supplement; to advise the Underwriter of any such amendment or supplement
promptly after the Time of Delivery for so long as the delivery of a
prospectus is required under the Act in connection with the offering or
sale of the Securities; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required under
the Act in connection with the offering or sale of the Securities, and
during such same period to advise the Underwriter, promptly after the
Company receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with
the Commission; for so long as the delivery of a prospectus is required
under the Act in connection with the offering or sale of the Securities, to
advise the Underwriter promptly of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction or
of the initiation or, if known to the Company, threatening of any
proceeding for any such purpose, or of any request by the Commission for
amending or supplementing the Registration Statement or Prospectus; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to endeavor to take such action as the
Underwriter may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the Underwriter
may reasonably request and such other jurisdictions as the Company and the
Underwriter may agree and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction, and provided further that in connection
therewith the Company shall not be required to qualify the Securities for
offering and sale under the securities laws of any such jurisdiction for a
period in excess of nine months after the initial time of issue of the
Prospectus as amended or supplemented relating to the Securities;
(c) To furnish the Underwriter with copies of the Prospectus as
amended or supplemented in such quantities as the Underwriter may from
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8
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus in order to comply
with the Act or the Exchange Act, to notify the Underwriter and to file
such document and to prepare and furnish without charge to the Underwriter
and to any dealer in securities as many copies as the Underwriter may from
time to time reasonably request of any amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission or effect
such compliance; provided, however, that in case the Underwriter is
required under the Act to deliver a prospectus in connection with the
offering or sale of the Securities at any time more than nine months after
the date of this Agreement, the costs of such preparation and furnishing
such amended or supplemented Prospectus shall be borne by the Underwriter;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158); and
(e) To otherwise comply with the provisions of Section 7 of the
Registration Rights Agreement attached as Appendix A to the Stockholder
Agreement dated as of October 13, 1996, between the Company and Green
Equity Investors, L.P.
6. The Company covenants and agrees to pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Securities under the
Act and all other expenses in connection with the Company's preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and, subject to the proviso of Section 5(c), the Prospectus and amendments and
supplements thereto and the mailing and delivery of copies thereof to the
Underwriter and dealers; (ii) the cost of printing or otherwise producing this
Agreement, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) subject to the proviso of Section 5(b), all expenses in connection with
the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof,
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including the reasonable fees and disbursements of counsel for the Underwriter
in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (iv) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (v) any cost of preparing certificates for the Securities;
(vi) the fees and expenses of any transfer agent and registrar for the
Securities; and (vii) all other costs and expenses incident to the performance
of the Company's obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 10 hereof, the Underwriter will
pay all of its own costs and expenses, including the fees of its counsel and any
advertising expenses connected with any offers it may make. It is further
understood that, notwithstanding the foregoing, each Selling Stockholder will
pay (i) the fees, disbursements and expenses of counsel for such Selling
Stockholder and (ii) all underwriting discounts and commissions and transfer
taxes, if any, and other fees, costs and expenses of such Selling Stockholder
relating to the sale or disposition of the Securities.
7. The obligations of the Underwriter shall be subject to the
condition that all representations and warranties and other statements of the
Company and each of the Selling Stockholders herein or incorporated by reference
herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company and each of the Selling Stockholders shall have performed in
all material respects all of their respective obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
Securities shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or, to the knowledge of the Company,
threatened by the Commission;
(b) Cravath, Swaine & Moore, counsel for the Underwriter, shall have
furnished to the Underwriter such opinion or opinions, dated the Time of
Delivery, with respect to the incorporation of the Company, the Securities,
the Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Underwriter may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Franklin C. Brown, Executive Vice President and Chief Legal
Officer of the Company, or Elliot S. Gerson, Senior Vice President and
Assistant Chief Legal Counsel of the Company, shall have furnished to the
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10
Underwriter his written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware;
(ii) The Company has corporate power and corporate authority to
own, lease and operate its properties and conduct its business as
described in the Prospectus;
(iii) To the best of his knowledge, the Company is qualified to
do business, and is in good standing, as a foreign corporation under
the laws of each jurisdiction in which such qualification is required
or, if not so qualified and in good standing in any such jurisdiction,
such failure to be so qualified and in good standing, as of the date
of such opinion, will not have a material adverse effect on the
financial condition of the Company and its subsidiaries taken as a
whole;
(iv) Each Significant Subsidiary (as defined in Rule 405 of
Regulation C under the Act) of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the state of its incorporation, has corporate power and
corporate authority to own, lease and operate its properties and
conduct its business as described in the Prospectus, and, to the best
of his knowledge and information, is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification; all of
the issued and outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued and is fully
paid and non-assessable, and all of such capital stock, to the best of
his knowledge and information, is owned by the Company free and clear
of any pledge, lien, encumbrance, claim or equity;
(v) To the best of his knowledge and other than as set forth
or contemplated in the Prospectus, there are no legal or governmental
proceedings pending or threatened involving the Company or any of its
subsidiaries of a character required to be disclosed in the
Registration Statement or Prospectus which are not adequately
disclosed in the Registration Statement or Prospectus;
(vi) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and
validly authorized by the Company, and this Agreement has been duly
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11
executed and delivered by the Company and constitutes the valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws and subject to the qualification that the enforceability of the
Company's obligations hereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally, and
by general equitable principles;
(vii) The Securities have been duly authorized and validly
issued, are fully paid and nonassessable and are free of any
preemptive or similar rights; and the Securities conform in all
material respects to the description thereof in the Prospectus as
amended or supplemented with respect to the Securities;
(viii) The compliance by the Company with all of the provisions
of this Agreement, and the consummation of the transactions herein
contemplated will not (1) conflict with or result in a breach or
violation by the Company of any of the terms or provisions of, or
constitute a default by the Company under, any indenture, mortgage,
deed of trust, loan agreement or other similar agreement or instrument
known to him to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is
subject, except, in all such cases, for such conflicts, breaches,
violations or defaults as would not have a material adverse effect on
the financial condition of the Company and its subsidiaries taken as a
whole, or (2) result in any violation of (A) the provisions of the
Restated Certificate of Incorporation or By-Laws of the Company or (B)
any statute, order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties which order, rule or regulation is
applicable to the Company, except with respect to clause (B) of this
paragraph (viii)(2), such violations as would not have a material
adverse effect on the financial condition of the Company and its
subsidiaries taken as a whole;
(ix) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related notes, the financial statement schedules and the other
financial data included therein or omitted therefrom, as to which he
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
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12
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder;
(x) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations, orders, registrations or qualifications as have been
obtained under the Act and such as may be required under state
securities or Blue Sky laws in connection with the purchase and sale
and distribution of the Securities by the Underwriter, and except
those which, if not obtained, will not have a material adverse effect
on the financial condition of the Company and its subsidiaries taken
as a whole; and
(xi) Except as described in such opinion letter, no holder of
any security of the Company has any right (except as has been
satisfied or waived) to require registration of shares of Common Stock
or any other security of the Company because of the filing of the
Registration Statement or consummation of the transactions
contemplated by this Agreement.
In addition, he shall state that nothing has been brought to his
attention that would cause him to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
notes, the financial statement schedules and the other financial data included
therein or omitted therefrom, as to which he need express no view), contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that, as of its date or at the Time of Delivery, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
notes, the financial statement schedules and the other financial data included
therein or excluded therefrom, as to which he need express no view) contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; he shall also state that
he does not know of any contract or other document (i) of a character required
to be filed as an exhibit to the Registration Statement or to any of the
documents incorporated by reference into the Prospectus as amended or
supplemented or (ii) required to be incorporated by reference into the
Prospectus as amended or supplemented, which is not so filed or incorporated, as
the case may be.
<PAGE>
13
In rendering this opinion required by subsection (c) of this Section,
such counsel may rely (A) as to any matter to which you consent (which consent
shall not be unreasonably withheld), to the extent specified in his opinion,
upon the opinions of other counsel whom such counsel believes to be reliable,
provided that such counsel shall state that he and you are justified in relying
on such opinions and (B) as to matters of fact, upon certificates of officers
and representatives of the Company and of public officials, and will not be
required to verify independently the accuracy or completeness of information or
documents furnished to him with respect to the Registration Statement or the
Prospectus.
(d) Jones, Day, Reavis & Pogue, special counsel for the Company,
shall have furnished to the Underwriter their written opinion, dated the
Time of Delivery, in form and substance satisfactory to the Underwriter, to
the effect that:
(i) The Securities conform in all material respects to the
description thereof in the Prospectus as amended or supplemented with
respect to the Securities; and
(ii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery (other than the financial
statements and related notes, the financial statement schedules and
the other financial data included therein or omitted therefrom, as to
which such counsel need express no opinion) as of their respective
effective or issue dates appeared to be appropriately responsive in
all material respects with the requirements of the Act and the rules
and regulations thereunder.
In addition, such counsel shall state that nothing has been brought to
the attention of such counsel that would cause such counsel to believe that, as
of its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related notes, the financial statement schedules and
the other financial data included therein or omitted therefrom, as to which such
counsel need express no view), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date or at the
Time of Delivery, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related notes, the financial
statement schedules and the other financial data included therein or excluded
therefrom, as to which such counsel need express no view) contained or contains
an untrue statement or a material fact or omitted or omits to state a material
fact necessary to make the
<PAGE>
14
statements therein, in light of the circumstances in which they were made, not
misleading.
In rendering the opinion required by subsection (d) of this Section,
Jones, Day, Reavis & Pogue may rely upon or may assume the accuracy of matters
(A) involving the application of laws of any jurisdiction other than the United
States or New York and as to any other matter to which you consent (which
consent shall not be unreasonably withheld), to the extent specified in such
opinion, upon the opinions of other counsel whom such counsel believes to be
reliable, provided that such counsel shall state that such counsel and you are
justified in relying on such opinions and (B) of fact upon certificates of
officers and representatives of the Company and of public officials, and will
not be required to verify independently the accuracy or completeness of
information or documents furnished to such counsel with respect to the
Registration Statement or the Prospectus.
(e) Counsel for each Selling Stockholder shall have furnished to the
Underwriter his or her written opinion, dated the Time of Delivery, in form
and substance satisfactory to the Underwriter, to the effect that:
(i) Such Selling Stockholder has the corporate power and
corporate authority to sell, assign, transfer and deliver the
Securities as of the Time of Delivery;
(ii) Assuming that the Underwriter acquired its interest in the
Securities in good faith and without notice of any adverse claims,
upon delivery of the Securities to the Underwriter endorsed to the
Underwriter or in blank in the State of New York, the Underwriter
acquired all of such Selling Stockholder's rights in the Securities
and acquired its interest in the Securities free of any adverse claims
(within the meaning of Section 8-302 of the Uniform Commercial Code as
in effect on the date hereof in the State of New York);
(iii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
is required for the consummation by such Selling Stockholder of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations, orders, registrations or qualifications as
have been obtained under the Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
sale and distribution of the Securities by the Underwriter;
(iv) The compliance by such Selling Stockholder with all of the
provisions of this Agreement, and the consummation of the transactions
herein contemplated will not (1) conflict with or result in
<PAGE>
15
a breach of violation by such Selling Stockholder of any of the terms
or provisions of, or constitute a default by such Selling Stockholder
under, any indenture, mortgage, deed of trust, loan agreement or other
similar agreement or instrument known to him to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound
or to which any of the property or assets of such Selling Stockholder
is subject, or (2) result in any violation of (A) the provisions of
the certificate of incorporation, bylaws, partnership agreement or
other constituent document of such Selling Stockholder, as
applicable, or (B) any statute, order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or any of its properties
which order, rule or regulation is applicable to such Selling
stockholder; and
(v) This Agreement has been duly authorized, executed and
delivered by such Selling Stockholder.
In rendering the opinion required by subsection (e) of this
Section, such counsel may rely (A) as to any matter to which you consent
(which consent shall not be unreasonably withheld), to the extent specified
in such opinion, upon the opinions of other counsel whom such counsel
believes to be reliable, provided that such counsel shall state that such
counsel and you are justified in relying on such opinions and (B) as to
matters of fact, upon certificates of officers and representatives of such
Selling Stockholder and of public officials, and will not be required to
verify independently the accuracy or completeness of information or
documents furnished to such counsel with respect to the Registration
Statement or the Prospectus.
(f) On the date hereof and at the Time of Delivery, KPMG Peat Marwick
shall have furnished to the Underwriter a letter, dated the effective date
of the Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated the Time of Delivery,
respectively, in form and substance satisfactory to the Underwriter, and
with respect to such letter dated the Time of Delivery, as to such other
matters as the Underwriter may reasonably request and in form and substance
satisfactory to the Underwriter;
(g) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not have been any
material adverse change in the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
<PAGE>
16
whole, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case described
above, is in the reasonable judgment of the Underwriter, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
(h) On or after the date hereof, no downgrading shall have occurred
in the rating accorded the Company's debt securities by either the Standard
& Poor's Corporation or Moody's Investors Service, Inc., no threat shall
have been made of such downgrading or of placing the Company under special
surveillance by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), no notice shall
have been given of any intended or potential downgrading in any such rating
or of a possible change in any such rating that does not indicate the
direction of the possible change; and the Company shall not have knowledge
of any facts or circumstances that are likely to cause such downgrading,
threatened downgrading or the placing of the Company under special
surveillance;
(i) On or after the date hereof, there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the outbreak or material
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in clauses (i), (ii) or (iii), in the reasonable judgment
of the Underwriter, makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in
the manner contemplated by the Prospectus as amended or supplemented;
(j) The Company shall have furnished or caused to be furnished to the
Underwriter at the Time of Delivery a certificate or certificates of the
President or a Vice President of the Company and of the principal financial
officer of the Company as to the accuracy of the representations and
warranties of the Company herein at and as of the Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to the Time of Delivery, as to the matters set forth
in subsections (a) and (g) of this Section and as to such other matters as
the Underwriter may reasonably request;
(k) Each Selling Stockholder shall have furnished or caused to be
furnished to the Underwriter at the Time of Delivery a certificate or
certificates of the President or a Vice President of such Selling
Stockholder if
<PAGE>
17
such Selling Stockholder is a corporation, by the General Partner of such
Selling Stockholder if such Selling Stockholder is a partnership or by such
Selling Stockholder if such Selling Stockholder is a natural person and of
the principal financial officer of such Selling Stockholder, if applicable,
as to the accuracy of the representations and warranties of such Selling
Stockholder herein at and as of the Time of Delivery, as to the performance
by such Selling Stockholder of all of its obligations hereunder to be
performed at or prior to the Time of Delivery and as to such other matters
as the Underwriter may reasonably request;
(l) The obligations of the Underwriter to any Selling Stockholder
under this Agreement shall be subject to the condition that, at the Time of
Delivery, all conditions to the Underwriter's obligations to purchase
Securities from the other Selling Stockholders shall have been satisfied;
provided, that this condition shall be deemed satisfied if (i) all
conditions to the Underwriter's obligations to purchase at least 3,000,000
Securities in the aggregate from all of the Selling Stockholders have been
satisfied, and (ii) the number of Securities with respect to which the
Underwriter's obligations to purchase have not been satisfied shall be
300,000 or less; and provided, further, that this condition shall not be
waived by the Underwriter without the prior consent of Jones, Day, Reavis &
Pogue and of Cravath, Swaine & Moore; and
(m) In the event the Underwriter declines to purchase the Securities
pursuant to Section 7(l) of this Agreement, then this Agreement shall
terminate, without liability on the part of the Company, any Selling
Stockholder or the Underwriter, except as provided in Sections 6, 8 and 10
hereof.
8. (a) The Company will indemnify and hold harmless each Selling
Stockholder, its officers, directors, agents, and each person who controls such
Selling Stockholder (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act), against any losses, claims, damages or liabilities, joint
or several, to which such party may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any violation by the Company (or its
officers, directors, agents or controlling persons) of any federal or state law,
rule or regulation applicable to the Company and relating to any action required
or inaction by such party in connection with or relating to the Registration
Statement, or (ii) an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (x) in the
<PAGE>
18
case of the Registration Statement, not misleading and (y) in the case of any
Prospectus, in light of the circumstances in which they were made, not
misleading, and will reimburse such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such indemnified party for inclusion
therein; and provided, further, that the Company shall not be liable to any
indemnified party under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus or any preliminary prospectus supplement
to the extent that any such loss, claim, damage or liability of such indemnified
party results from the fact that the Underwriter sold the Securities to a person
to whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) in any case where such delivery is required
by the Act if the Company has previously furnished copies thereof to the
Underwriter and the loss, claim, damage or liability of such indemnified party
results from an untrue or alleged untrue statement or omission or alleged
omission of a material fact contained in the Preliminary Prospectus or any
preliminary prospectus supplement which was corrected in the Prospectus (or the
Prospectus as amended or supplemented). The Company will indemnify the
Underwriter, its officers, directors, agents, and each person who controls the
Underwriter (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) to the same extent (and subject to the same limitations and
provisos) as provided above, but only with respect to losses, claims, damages or
liabilities (or actions in respect thereof) arising out of the circumstances set
forth in clause (ii) above.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless the Company, its officers, directors, agents, and
each person who controls the Company (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act), against any losses, claims, damages or
liabilities to which such party may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any violation by such party of any
federal or state law, rule or regulation relating to action required of or
inaction by such party in connection with its offer and sale of the Securities
and (ii) an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or
<PAGE>
19
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (x) in the case of
the Registration Statement, not misleading and (y) in the case of any
Prospectus, in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder for inclusion therein; and will reimburse
the indemnified party for any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim as such expenses are incurred. Each Selling Stockholder,
severally and not jointly, will indemnify the Underwriter, its officers,
directors, agents, and each person who controls the Underwriter (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) to the same
extent (and subject to the same limitations and provisos) as provided above, but
only with respect to losses, claims, damages or liabilities (or actions in
respect thereof) arising out of the circumstances set forth in clause (ii)
above.
(c) The Underwriter will indemnify and hold harmless the Company and
the Selling Stockholders and any of their officers, directors, agents, and
controlling persons (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act), against any losses, claims, damages or liabilities to
which such party may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of any Prospectus,
in light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by the
Underwriter for inclusion therein; and will reimburse the indemnified party for
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim as such
expenses are incurred.
<PAGE>
20
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In no event
shall any indemnifying party be liable for the fees and expenses of more than
one counsel (in addition to local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. In no event shall an indemnifying party
be liable with respect to any action or claim settled without its written
consent.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the indemnifying party on the one hand and the indemnified party on the other
from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party is not entitled to receive the indemnification
provided for in subsection (a) above because of the second proviso thereof or if
the indemnified party failed to give the notice required under subsection (d)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
indemnifying party on the one hand and the indemnified party on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable
<PAGE>
21
considerations. Notwithstanding the foregoing, as between the Company and the
Selling Stockholders, contribution shall be in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
indemnified party on the other in connection with the actions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriter. 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 party on the
one hand or the indemnified party on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, including the extent to which such losses, claims,
damages or liabilities (or actions in respect thereof) with respect to any
Preliminary Prospectus or any preliminary prospectus supplement result from the
fact that the Underwriter sold the Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference), if the Company has previously furnished copies thereof to the
Underwriter. The Company, the Selling Stockholders and the Underwriter agree
that it would not be just and equitable if contribution pursuant to this
subsection (e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages (other than amounts
paid or incurred without the consent of the indemnifying party as provided in
this Section 8) which the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Company and the Selling Stockholders in this subsection (e) to contribute are
several and not joint. No indemnifying party will be liable for contribution
with respect to any action or claim settled without its written consent.
<PAGE>
22
(f) In no event will any Selling Stockholder be liable or required to
indemnify for or contribute any amount under this Section 8 in respect of any
untrue or alleged untrue statement or omission or alleged omission for amounts
in excess of the total price at which the Securities sold by such Selling
Stockholder were offered to the public, minus the underwriting discounts and
commissions paid thereon to the Underwriter by such Selling Stockholder.
(g) The provisions of this Section 8 will be in addition to any
liability which any indemnifying party may have to any indemnified party and
will survive the termination of this Agreement.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
Underwriter, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Underwriter or any officer or director or
controlling person of the Underwriter, the Company, or any officer or director
or controlling person of the Company, or any Selling Stockholder or any officer
or director or controlling person of any Selling Stockholder, and shall survive
delivery of and payment for the Securities.
10. If the Securities are not delivered by or on behalf of any
Selling Stockholder as provided herein, such Selling Stockholder will reimburse
the Underwriter for all reasonable out-of-pocket expenses approved in writing by
the Underwriter, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriter in making preparations for the purchase,
sale and delivery of such Securities, but such Selling Stockholder shall then be
under no further liability to the Underwriter with respect to such Securities
except as provided in Section 6 and Section 8 hereof.
11. The Company, each Selling Stockholder and the Underwriter agree
that, for purposes of Sections 2, 3 and 8 of this Agreement, the only written
information furnished to the Company by such Selling Stockholder specifically
for use in the Registration Statement, the Prospectus or any prospectus
supplement is that set forth: (a) in the first sentence of the first paragraph
of the cover page of the Prospectus, but only as it relates to such Selling
Stockholder; (b) in the third, fourth and fifth paragraphs of the cover page of
the Prospectus, but only as it relates to such Selling Stockholder; (c) under
the caption "Selling Stockholders" in the Prospectus, but only as it relates to
such Selling Stockholder (and except for footnote 2 therein and the column
entitled "Percentage"); (d) under the caption "Plan of Distribution" in the
Prospectus, but only as it relates to such Selling Stockholder; (e) in the
fourth-to-last paragraph of the cover page of the prospectus supplement dated
February 11, 1997, with respect to the Securities (the "Prospectus Supplement"),
but only as it relates to such Selling Stockholder; (f) in
<PAGE>
23
the second-to-last paragraph of the cover page of the Prospectus Supplement, but
only as it relates to such Selling Stockholder; (g) in the last sentence of the
last paragraph of the cover page of the Prospectus Supplement, but only as it
relates to such Selling Stockholder; (h) under the caption "Selling
Stockholders" in the Prospectus Supplement, but only as it relates to such
Selling Stockholder (and except for footnote 1 therein and the columns entitled
"Percentage"); and (i) in the first and second paragraphs under the caption "The
Underwriter" in the Prospectus Supplement, but only as it relates to such
Selling Stockholder.
12. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriter shall be delivered or sent by mail,
telex or facsimile transmission to the address as set forth on the first page of
this Agreement; if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Legal Officer; and if to the Selling
Stockholders shall be delivered or sent by mail, telex or facsimile transmission
to the care of Leonard Green & Associates, L.P., 333 South Grand Avenue, Suite
5400, Los Angeles, CA 90071. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter, the Company, each of the Selling Stockholders and,
to the extent provided in Section 8 and Section 9 hereof, the officers,
directors and agents of the Company, the Underwriter or the Selling Stockholders
and each person who controls the Company, the Underwriter or the Selling
Stockholders and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any Securities from the Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. The sale of the Securities of any Selling Stockholder pursuant to
the terms of this Agreement shall be considered separate from the sale of the
Securities of any other Selling Stockholder and the obligations of each of the
Selling Stockholders under this Agreement shall be several and not joint. This
Agreement shall for all purposes be construed and deemed to be a series of
separate agreements between the Underwriter and each of the Selling
Stockholders, acting severally and not jointly with the other Selling
Stockholders. Notwithstanding the foregoing, the obligations of the Underwriter
to any Selling Stockholder under this Agreement shall be subject to the
condition contained in Section 7(l) hereof.
15. As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
<PAGE>
24
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
Very truly yours,
RITE AID CORPORATION,
by:
/s/ Elliot S. Gerson
---------------------------------
Name: Elliot S. Gerson
Title: Senior Vice President
and Assistant Chief
Legal Counsel
<PAGE>
25
BANKAMERICA CAPITAL CORPORATION,
by:
/s/ Frederick H. Schneider, Jr.
------------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
26
LANDMARK EQUITY PARTNERS III, L.P.,
by:
/s/ Frederick H. Schneider, Jr.
------------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
27
LANDMARK EQUITY PARTNERS IV, L.P.,
by:
/s/ Frederick H. Schneider, Jr.
-------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
28
MIDLAND MONTAGU PRIVATE EQUITY INC.,
by:
/s/ Frederick H. Schneider, Jr.
------------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
29
O&M INVESTMENT PARTNERS,
by:
/s/ Frederick H. Schneider, Jr.
------------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
30
ROBERT FLEMING NOMINEES LIMITED,
by:
/s/ Frederick H. Schneider, Jr.
------------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
31
THE NIPPON CREDIT BANK, LTD.,
by:
/s/ Frederick H. Schneider, Jr.
------------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
32
WELLS FARGO & COMPANY,
by:
/s/ Frederick H. Schneider, Jr.
------------------------------------
Name: Frederick H. Schneider, Jr.
Title: Attorney-in-Fact
<PAGE>
33
Accepted as of the
date hereof:
Morgan Stanley & Co. Incorporated
by:
/s/ William H. Wright II
------------------------------
Name: William H. Wright II
Title: Principal
<PAGE>
SCHEDULE I
Selling Stockholder Number of Securities to be Sold
- ------------------- -------------------------------
BankAmerica Capital Corporation....................................791,772
Landmark Equity Partners III, L.P............................... 1,060,409
Landmark Equity Partners IV, L.P....................................56,555
Midland Montagu Private Equity Inc.................................353,470
O&M Investment Partners.............................................34,621
Robert Fleming Nominees Limited.....................................53,020
The Nippon Credit Bank, Ltd........................................176,735
Wells Fargo & Company..............................................883,674
---------
Total..........................................................3,410,256
=========
<PAGE>
SCHEDULE II
Purchase Price by Underwriter: $40.385 per share
Specified Funds for Payment of Immediately available funds
Purchase Price: (by wire transfer)
Time of Delivery: February 19, 1997
Closing Location: Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
