SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): September 17, 1999
United Retail Group, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 00019774 51-0303670
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
365 West Passaic Street, Rochelle Park, NJ 07662
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (201) 845-0880
Not Applicable
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(Former name or former address, if changed since last report)
Item 5. Other Events.
a) Right of First Refusal Agreements
On September 20, 1999, United Retail Group, Inc. (the "Company") and
Limited Direct Associates, L.P. ("LDA") entered into a Right of First
Refusal Agreement, dated as of September 17, 1999 (the "LDA Agreement"),
pursuant to which LDA granted a right of first refusal to the Company to
purchase any shares of common stock of the Company, $0.001 par value per
share (the "Company Shares"), held by LDA which LDA may propose to sell,
whether on the Nasdaq National Market System ("NASDAQ") or in negotiated or
block transactions. Pursuant to the LDA Agreement, with respect to a
proposed sale of Company Shares by LDA on NASDAQ, the notice of such
proposed sale by LDA to the Company shall state the closing price for
Company Shares on NASDAQ on the date of such notice, and if the Company
wishes to exercise its right of first refusal, it must give notice electing
to purchase such Company Shares at such price prior to the opening of
trading on the following business day. LDA currently holds 1,600,000
Company Shares, which represent approximately 12% of the outstanding
Company Shares.
Under the LDA Agreement, the Company has no obligation to purchase the
Company Shares from LDA, except upon exercise by the Company of its right
of first refusal thereunder, and LDA has no obligation to propose to sell
any of its Company Shares. The agreement expires on September 17, 2000,
unless extended by mutual consent of the parties.
In addition, on September 20, 1999, the Company and The Limited,
Inc./Intimate Brands, Inc. Foundation (the "Foundation") entered into a
Right of First Refusal Agreement, dated as of September 17, 1999 (the
"Foundation Agreement" and, together with the LDA Agreement, the
"Agreements"), pursuant to which the Foundation granted a right of first
refusal to the Company to purchase any Company Shares held by the
Foundation which the Foundation may propose to sell. The terms and
conditions of the Foundation Agreement are similar to those of the LDA
Agreement. The Foundation's holding of Company Shares is currently not
material, although LDA has from time to time transferred Company Shares to
the Foundation.
Any purchases of Company Shares by the Company from LDA under the LDA
Agreement or the Foundation under the Foundation Agreement shall be
included in the total authorized purchases under the Company's stock
buyback program described in Item 5(c) of the Company's Current Report on
Form 8-K, dated September 14, 1999.
The LDA Agreement and the Foundation Agreement are attached hereto as
Exhibit 10.1.
The description and summaries of each of the Agreements contained herein do
not purport to be comprehensive or definitive, and reference is made to
each of the Agreements for the complete details of all terms and
conditions. All statements herein are qualified in their entirety by
reference to each of the Agreements.
On September 21, 1999, the Company issued a press release disclosing the
Agreements, a copy of which is filed as Exhibit 99 hereto.
b) Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock.
The Board of Directors of the Company authorized a series of Preferred
Stock of the Company designated as Series A Junior Participating Preferred
Stock and represented by 150,000 shares, in connection with the Rights
Agreement, dated as of September 14, 1999, by and between the Company and
Continental Stock Transfer & Trust Company described in the Company's
Current Report on Form 8-K, dated September 14, 1999. The Certificate of
Designation, Preferences and Rights of Series A Junior Participating
Preferred Stock of the Company, dated September 17, 1999, is attached
hereto as Exhibit 3 and was filed with the Secretary of State of Delaware
on September 17, 1999.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Exhibit
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3 Certificate of Designation, Preferences and Rights of Series
A Junior Participating Preferred Stock dated September 17,
1999.
10.1.1 Right of First Refusal Agreement, dated as of September 17,
1999, between United Retail Group, Inc. and Limited Direct
Associates, L.P.
10.1.2 Right of First Refusal Agreement, dated as of September 17,
1999, between United Retail Group, Inc. and The Limited,
Inc./Intimate Brands, Inc. Foundation.
99 Press Release issued by the Company on September 21, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
UNITED RETAIL GROUP, INC.
By: /s/ George R. Remeta
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Name: George R. Remeta
Title: Vice Chairman and Chief
Administrative Officer
Date: September 23, 1999
INDEX TO EXHIBITS
Exhibit No. Exhibit
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3 Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock dated
September 17, 1999.
10.1.1 Right of First Refusal Agreement, dated as of September 17,
1999, between United Retail Group, Inc. and Limited Direct
Associates, L.P.
10.1.2 Right of First Refusal Agreement, dated as of September 17,
1999, between United Retail Group, Inc. and The Limited,
Inc./Intimate Brands, Inc. Foundation.
99 Press Release issued by the Company on September 21, 1999.
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
United Retail Group, Inc.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned officers of United Retail Group, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103
thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Amended and Restated Certificate of Incorporation of the said
Corporation, the said Board of Directors on September 14, 1999, adopted the
following resolution creating a series of 150,000 shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Restated Certificate of Incorporation, a series of Preferred Stock of the
Corporation be and it hereby is created, and that the designation and
amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock" and
the number of shares constituting such series shall be 150,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to
the shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Series A Junior Participating Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00 or
(b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock, par value
$0.001 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred
Stock. In the event the Corporation shall at any time after September 14,
1999 (the "Rights Dividend Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to which
holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in Paragraph (A)
of this Section immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1.00 per share on the Series A Junior Participating
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of
such shares of Series A Junior Participating Preferred Stock, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock shall
entitle the holder thereof to 100 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the Corporation shall
at any time after the Rights Dividend Declaration Date (i) declare or pay
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the
number of votes per share to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Junior Participating Preferred Stock and the holders
of shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal
to six (6) quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a
"default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and
for the current quarterly dividend period on all shares of Series A
Junior Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders of the
Series A Junior Participating Preferred Stock) with dividends in
arrears in an amount equal to six (6) quarterly dividends thereon,
voting as a class, irrespective of series, shall have the right to
elect two (2) directors.
(ii) During any default period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be
exercised initially at a special meeting called pursuant to
subparagraph (iii) of this Section 3(C) or at any annual meeting of
stockholders, and thereafter at annual meetings of stockholders,
provided that neither such voting right nor the right of the holders
of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of directors shall be exercised
unless the holders of ten percent (10%) in number of shares of
Preferred Stock outstanding shall be present in person or by proxy.
The absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of such voting
right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default
period, they shall have the right, voting as a class, to elect
directors to fill such vacancies, if any, in the Board of Directors
as may then exist up to two (2) directors or, if such right is
exercised at an annual meeting, to elect two (2) directors. If the
number which may be so elected at any special meeting does not amount
to the required number, the holders of the Preferred Stock shall have
the right to make such increase in the number of directors as shall
be necessary to permit the election by them of the required number.
After the holders of the Preferred Stock shall have exercised their
right to elect directors in any default period and during the
continuance of such period, the number of directors shall not
be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A
Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during
an existing default period, have previously exercised their right to
elect directors, the Board of Directors may order, or any stockholder
or stockholders owning in the aggregate not less than ten percent
(10%) of the total number of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of a special meeting
of the holders of Preferred Stock, which meeting shall thereupon be
called by the President, a Vice-President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at
which holders of Preferred Stock are entitled to vote pursuant to
this Paragraph (C)(iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to him at his last
address as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days and not
later than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%)
of the total number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this Paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of
the stockholders.
(iv) In any default period, the holders of Common Stock,
and other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of directors until
the holders of Preferred Stock shall have exercised their right to
elect two (2) directors voting as a class, after the exercise of
which right (x) the directors so elected by the holders of Preferred
Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default
period, and (y) any vacancy in the Board of Directors may (except as
provided in Paragraph (C)(ii) of this Section 3) be filled by vote of
a majority of the remaining directors theretofore elected by the
holders of the class of stock which elected the director whose office
shall have become vacant. References in this Paragraph (C) to
directors elected by the holders of a particular class of stock shall
include directors elected by such directors to fill vacancies as
provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period,
(x) the right of the holders of Preferred Stock as a class to elect
directors shall cease, (y) the term of any directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the
number of directors shall be such number as may be provided for in
the certificate of incorporation or by-laws irrespective of any
increase made pursuant to the provisions of Paragraph (C)(ii) of this
Section 3 (such number being subject, however, to change thereafter
in any manner provided by law or in the certificate of incorporation
or by-laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining directors.
(D) Except as set forth herein,or as otherwise provided by law,
holders of Series A Junior Participating Preferred Stock shall have no
special voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock
as provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares
of Series A Junior Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not
(i) declare or pay dividends on or, make any other
distributions on, any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Junior
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with the Series A
Junior Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under Paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock, subject to the
conditions and restrictions on issuance set forth in this Amended and
Restated Certificate of Incorporation or in any Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received an amount equal to $100
per share of Series A Participating Preferred Stock, plus an amount equal
to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the
holders of shares of Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Common Stock shall have received an
amount per share (the "Common Adjustment") equal to the quotient obtained
by dividing (i) the Series A Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph (C) below to reflect
such events as stock splits, stock dividends and recapitalizations with
respect to the Common Stock) (such number in clause (ii), the "Adjustment
Number"). Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred
Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of preferred stock, if
any, which rank on a parity with the Series A Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to
the holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Dividend Declaration Date (i) declare or pay any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior Participating Preferred
Stock shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time after the Rights Dividend Declaration Date
declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change
of shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. Amendment. This Amended and Restated Certificate of
Incorporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Junior Participating Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Junior Participating Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Junior Participating
Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury this 17th day of September, 1999.
Vice Chairman and Chief
Administrative Officer
Attest:
Assistant Secretary
This RIGHT OF FIRST REFUSAL between LIMITED DIRECT ASSOCIATES, L.P.
(the "Stockholder") and UNITED RETAIL GROUP, INC. (the "Corporation"),
dated September 17, 1999.
WHEREAS, the Stockholder holds shares of Common Stock, $.001 par
value per share ("Shares"), of the Corporation;
WHEREAS, the Shares are traded on the NASDAQ National Market System
("NASDAQ"); and
WHEREAS, from time to time the Stockholder may desire to sell Shares
and the Corporation may desire to repurchase Shares.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
SECTION 1. Fee. The Corporation paid the Stockholder $1,000, receipt
of which is hereby acknowledged, in consideration of the issuance and
delivery of this Right of First Refusal.
SECTION 2. Rights of First Refusal. (a) Subject to the provisions of
Section 2(b) and 2(c), if the Stockholder wishes to sell or otherwise
transfer any or all of the Shares then owned by it, it shall first give
notice (the "Transfer Notice") to the Corporation specifying the number of
Shares it wishes to transfer (the "Transfer Shares"), the identity of the
proposed transferee, the proposed consideration per Share to be received
(which proposed consideration shall be deemed to be the "Transfer Price",
except as otherwise provided in Section 2(b), and except that if all or any
part of the proposed consideration to be received is not cash, the
corresponding portion of the Transfer Price shall be the amount of cash
equal to the fair value of such non-cash consideration), and any other
material terms and conditions of the proposed transfer, and containing an
irrevocable offer (open to acceptance for a period of three business days
after the date such Transfer Notice is given) to sell any or all of the
Transfer Shares to the Corporation at the Transfer Price.
(b) Anything in Section 2(a) to the contrary notwithstanding, if the
Stockholder wishes to transfer shares in transactions to be executed on
NASDAQ, the Transfer Notice shall so state and shall specify the number of
Shares the Stockholder wishes to sell on NASDAQ and the closing price for
Shares on NASDAQ on the day the Transfer Notice is given (which closing
price shall be deemed to be the "Transfer Price"), and the Transfer Notice
need not contain any other information, and such Transfer Notice shall
constitute an irrevocable offer (open to acceptance until 9:15 a.m. Eastern
Time on the business day following the date such Transfer Notice is given)
to sell any or all of the Transfer Shares to the Corporation at the
Transfer Price.
(c) Anything in Section 2(a) and 2(b) to the contrary
notwithstanding, the Stockholder shall have the unconditional right at any
time to donate Shares to operating charities and charitable foundations,
and to transfer Shares to any affiliate of the Stockholder, and such
donations and transfers shall not be subject to the terms and provisions of
this Right of First Refusal, provided that in the case of a transfer to an
affiliate, such affiliate shall be bound by this Right of First Refusal.
(d) The number of Transfer Shares shall in no event be less than
25,000 Shares, unless the Stockholder holds fewer than 25,000 Shares, in
which event the Transfer Notice must be for all Shares owned by the
Stockholder.
(e) The Corporation shall have the right to purchase any or all of
the Transfer Shares; provided that the Corporation must determine the
number of the Transfer Shares it will purchase and evidence its irrevocable
acceptance of the offer and its agreement to purchase such Transfer Shares
by delivering to the Stockholder, prior to the expiration of the period
during which the offer remains open for acceptance pursuant to Section 2(a)
or 2(b), notice (the Notice of Acceptance) of the number of Transfer Shares
the Corporation has elected to purchase.
(f) The closing of the purchase by the Corporation of any Transfer
Shares that it elects to purchase shall be effected in accordance with the
same procedures that would apply to a trade on NASDAQ, including as to
timing of settlement (T+3) and form of payment (immediately available
funds), through such broker as the Stockholder may designate by notice to
the Corporation from time to time. In the event that either the Stockholder
shall default in the delivery of the Transfer Shares or the Corporation
shall default in the delivery of funds, the other party and its broker
shall be entitled to the same rights and remedies as would be available to
such party if such failure occurred in connection with a sale on NASDAQ.
The Corporation hereby acknowledges that certain certificates representing
Shares are legended and waives any default by the Stockholder resulting
from the existence of such legends.
(g) If, at the expiration of the period during which the offer
remains open for acceptance pursuant to Section 2(a) or 2(b), the
Corporation has either not delivered a Notice of Acceptance of the offer
contained in a Transfer Notice or has delivered a Notice of Acceptance with
respect to fewer than all of the Transfer Shares, then the Stockholder
shall have 90 days in which to sell any or all of the Transfer Shares not
accepted for purchase by the Corporation at a price not lower than the
Transfer Price, unless such Transfer Shares are sold on NASDAQ, in which
case at whatever price is obtainable on NASDAQ. If, at the end of such
90-day period, the Stockholder has not completed the transfer of all of
such Transfer Shares, it shall no longer be permitted to transfer any such
Transfer Shares without again complying with this Right of First Refusal in
its entirety.
(h) If the Stockholder determines at any time within such 90-day
period that it is impractical to sell all or any part of such Transfer
Shares in accordance with Section 2(g), it may terminate all attempts to
sell such Transfer Shares and recommence the procedures of this Right of
First Refusal in their entirety without waiting for the expiration of such
90-day period by delivering written notice of such decision to the
Corporation.
SECTION 3. Severability; Governing Law. If any provision of this
Right of First Refusal shall be determined to be illegal and unenforceable
by any court of law, the remaining provisions shall be severable and
enforceable in accordance with their terms. This Right of First Refusal
shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 4. Benefits of Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and assigns.
SECTION 5. Notices. All notices and communications to be given or to
otherwise be made to any party shall be effective upon delivery if
contained in a written instrument delivered by fax, e-mail, in person or by
a recognized national courier service, charges prepaid, addressed to:
(a) If to the Corporation:
United Retail Group, Inc.
365 West Passaic Street
Rochelle Park, New Jersey 07662-6563
Attention: Chief Administrative Officer
Telephone: (201) 909-2110
Fax: (201) 909-2122
E-mail: [email protected]
with a copy to:
United Retail Group, Inc.
365 West Passaic Street
Rochelle Park, New Jersey 07662-6563
Attention: General Counsel
Telephone: (201) 909-2200
Fax: (201) 909-2103
E-mail: [email protected]
(b) If to the Stockholder:
Limited Direct Associates, L.P.
c/o The Limited, Inc.
Three Limited Parkway
Columbus, OH 43230
Attention: Kenneth B. Gilman
Vice Chairman
Telephone: (614) 415-7222
Fax: (614) 415-7185
E-mail: [email protected]
with a copy to:
The Limited, Inc.
Three Limited Parkway
Attention: Patrick Hectorne
Treasurer
Columbus, Ohio 43230
Fax: (614) 415-7060
E-mail: [email protected]
provided that Transfer Notices with respect to proposed sales on NASDAQ and
Notices of Acceptance in response to such Transfer Notices shall be
delivered by fax and e-mail.
SECTION 6. Modification; Amendment. Except as otherwise provided
herein, neither this Right of First Refusal nor any provision hereof can be
modified, changed, discharged or terminated except by an instrument in
writing signed by the party to be bound.
SECTION 7. Disclosure; Public Announcements. None of the parties
hereto shall furnish copies of, disclose the terms or existence of or make
any public announcement regarding this Right of First Refusal without first
identifying the persons to which such copies are proposed to be furnished
and delivering the text of any such proposed disclosure or public
announcement to the other parties hereto and receiving the prior written
consent of such other parties to such furnishing, disclosure or public
announcement, which consent shall not be unreasonably withheld or delayed.
SECTION 8. Term. Unless extended by written consent of each party
hereto, this Right of First Refusal shall expire on September 17, 2000.
SECTION 9. Captions and References to Sections. The captions herein
are inserted for convenience only and shall not define, limit, extend or
describe the scope of this Right of First Refusal or affect the
construction hereof.
SECTION 10. Entire Agreement. This Right of First Refusal sets forth
the entire understanding of the parties with respect to the subject matter
hereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter
hereof other than those expressly set forth herein. This Right of First
Refusal supersedes all prior agreements and understandings between the
parties with respect to its subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Right of
First Refusal on the date first above written.
LIMITED DIRECT ASSOCIATES, L.P.
By: LIMITED DIRECT, INC.
By:________________________
Title:
UNITED RETAIL GROUP, INC.
By:_______________________________
Vice Chairman and
Chief Administrative Officer
This RIGHT OF FIRST REFUSAL between The Limited, Inc./Intimate
Brands, Inc. Foundation (the "Stockholder") and UNITED RETAIL GROUP, INC.
(the "Corporation"), dated September 17, 1999.
WHEREAS, the Stockholder holds shares of Common Stock, $.001 par
value per share ("Shares"), of the Corporation;
WHEREAS, the Shares are traded on the NASDAQ National Market System
("NASDAQ"); and
WHEREAS, from time to time the Stockholder may desire to sell Shares
and the Corporation may desire to repurchase Shares.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
SECTION 1. Fee. The Corporation paid the Stockholder $1,000, receipt
of which is hereby acknowledged, in consideration of the issuance and
delivery of this Right of First Refusal.
SECTION 2. Rights of First Refusal. (a) Subject to the provisions of
Section 2(b) and 2(c), if the Stockholder wishes to sell or otherwise
transfer any or all of the Shares then owned by it, it shall first give
notice (the "Transfer Notice") to the Corporation specifying the number of
Shares it wishes to transfer (the "Transfer Shares"), the identity of the
proposed transferee, the proposed consideration per Share to be received
(which proposed consideration shall be deemed to be the "Transfer Price",
except as otherwise provided in Section 2(b), and except that if all or any
part of the proposed consideration to be received is not cash, the
corresponding portion of the Transfer Price shall be the amount of cash
equal to the fair value of such non-cash consideration), and any other
material terms and conditions of the proposed transfer, and containing an
irrevocable offer (open to acceptance for a period of three business days
after the date such Transfer Notice is given) to sell any or all of the
Transfer Shares to the Corporation at the Transfer Price.
(b) Anything in Section 2(a) to the contrary notwithstanding, if the
Stockholder wishes to transfer shares in transactions to be executed on
NASDAQ, the Transfer Notice shall so state and shall specify the number of
Shares the Stockholder wishes to sell on NASDAQ and the closing price for
Shares on NASDAQ on the day the Transfer Notice is given (which closing
price shall be deemed to be the "Transfer Price"), and the Transfer Notice
need not contain any other information, and such Transfer Notice shall
constitute an irrevocable offer (open to acceptance until 9:15 a.m. Eastern
Time on the business day following the date such Transfer Notice is given)
to sell any or all of the Transfer Shares to the Corporation at the
Transfer Price.
(c) Anything in Section 2(a) and 2(b) to the contrary
notwithstanding, the Stockholder shall have the unconditional right at any
time to donate Shares to operating charities and charitable foundations,
and to transfer Shares to any affiliate of the Stockholder, and such
donations and transfers shall not be subject to the terms and provisions of
this Right of First Refusal, provided that in the case of a transfer to an
affiliate, such affiliate shall be bound by this Right of First Refusal.
(d) The number of Transfer Shares shall in no event be less than
25,000 Shares, unless the Stockholder holds fewer than 25,000 Shares, in
which event the Transfer Notice must be for all Shares owned by the
Stockholder.
(e) The Corporation shall have the right to purchase any or all of
the Transfer Shares; provided that the Corporation must determine the
number of the Transfer Shares it will purchase and evidence its irrevocable
acceptance of the offer and its agreement to purchase such Transfer Shares
by delivering to the Stockholder, prior to the expiration of the period
during which the offer remains open for acceptance pursuant to Section 2(a)
or 2(b), notice (the "Notice of Acceptance") of the number of
Transfer Shares the Corporation has elected to purchase.
(f) The closing of the purchase by the Corporation of any Transfer
Shares that it elects to purchase shall be effected in accordance with the
same procedures that would apply to a trade on NASDAQ, including as to
timing of settlement (T+3) and form of payment (immediately available
funds), through such broker as the Stockholder may designate by notice to
the Corporation from time to time. In the event that either the Stockholder
shall default in the delivery of the Transfer Shares or the Corporation
shall default in the delivery of funds, the other party and its broker
shall be entitled to the same rights and remedies as would be available to
such party if such failure occurred in connection with a sale on NASDAQ.
The Corporation hereby acknowledges that certain certificates representing
Shares are legended and waives any default by the Stockholder resulting
from the existence of such legends.
(g) If, at the expiration of the period during which the offer
remains open for acceptance pursuant to Section 2(a) or 2(b), the
Corporation has either not delivered a Notice of Acceptance of the offer
contained in a Transfer Notice or has delivered a Notice of Acceptance with
respect to fewer than all of the Transfer Shares, then the Stockholder
shall have 90 days in which to sell any or all of the Transfer Shares not
accepted for purchase by the Corporation at a price not lower than the
Transfer Price, unless such Transfer Shares are sold on NASDAQ, in which
case at whatever price is obtainable on NASDAQ. If, at the end of such
90-day period, the Stockholder has not completed the transfer of all of
such Transfer Shares, it shall no longer be permitted to transfer any such
Transfer Shares without again complying with this Right of First Refusal in
its entirety.
(h) If the Stockholder determines at any time within such 90-day
period that it is impractical to sell all or any part of such Transfer
Shares in accordance with Section 2(g), it may terminate all attempts to
sell such Transfer Shares and recommence the procedures of this Right of
First Refusal in their entirety without waiting for the expiration of such
90-day period by delivering written notice of such decision to the
Corporation.
SECTION 3. Severability; Governing Law. If any provision of this
Right of First Refusal shall be determined to be illegal and unenforceable
by any court of law, the remaining provisions shall be severable and
enforceable in accordance with their terms. This Right of First Refusal
shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 4. Benefits of Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and assigns.
SECTION 5. Notices. All notices and communications to be given or to
otherwise be made to any party shall be effective upon delivery if
contained in a written instrument delivered by fax, e-mail, in person or by
a recognized national courier service, charges prepaid, addressed to:
(a) If to the Corporation:
United Retail Group, Inc.
365 West Passaic Street
Rochelle Park, New Jersey 07662-6563
Attention: Chief Administrative Officer
Telephone: (201) 909-2110
Fax: (201) 909-2122
E-mail: [email protected]
with a copy to:
United Retail Group, Inc.
365 West Passaic Street
Rochelle Park, New Jersey 07662-6563
Attention: General Counsel
Telephone: (201) 909-2200
Fax: (201) 909-2103
E-mail: [email protected]
(b) If to the Stockholder:
The Limited, Inc./Intimate Brands, Inc. Foundation
c/o Columbus Foundation
1234 East Broad Street
Columbus, OH 43205.
Attention: Ray Biddescombe
Telephone: (614) 251-4000
Fax: (614) 251-4009
E-mail: [email protected]
with a copy to:
The Limited, Inc.
Three Limited Parkway
Attention: Tim Lyons
Columbus, Ohio 43230
Fax: (614) 415-7020
E-mail: [email protected]
provided that Transfer Notices with respect to proposed sales on NASDAQ and
Notices of Acceptance in response to such Transfer Notices shall be
delivered by fax and e-mail.
SECTION 6. Modification; Amendment. Except as otherwise provided
herein, neither this Right of First Refusal nor any provision hereof can be
modified, changed, discharged or terminated except by an instrument in
writing signed by the party to be bound.
SECTION 7. Disclosure; Public Announcements. None of the parties
hereto shall furnish copies of, disclose the terms or existence of or make
any public announcement regarding this Right of First Refusal without first
identifying the persons to which such copies are proposed to be furnished
and delivering the text of any such proposed disclosure or public
announcement to the other parties hereto and receiving the prior written
consent of such other parties to such furnishing, disclosure or public
announcement, which consent shall not be unreasonably withheld or delayed.
SECTION 8. Term. Unless extended by written consent of each party
hereto, this Right of First Refusal shall expire on September 17, 2000.
SECTION 9. Captions and References to Sections. The captions herein
are inserted for convenience only and shall not define, limit, extend or
describe the scope of this Right of First Refusal or affect the
construction hereof.
SECTION 10. Entire Agreement. This Right of First Refusal sets forth
the entire understanding of the parties with respect to the subject matter
hereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter
hereof other than those expressly set forth herein. This Right of First
Refusal supersedes all prior agreements and understandings between the
parties with respect to its subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Right of
First Refusal on the date first above written.
THE LIMITED, INC./INTIMATE
BRANDS, INC. FOUNDATION
By:________________________
Title:
UNITED RETAIL GROUP, INC.
By:_______________________________
Vice Chairman and
Chief Administrative Officer
Contact: George R. Remeta Investor Relations:
Vice Chairman and Lynn Morgen/Carolyn Capaccio/
Chief Administrative Officer Teresa Kollappallil
United Retail Group, Inc.
201-909-2110
Press: Michael McMullan
Morgen-Walke Associates, Inc.
212-850-5600
UNITED RETAIL GROUP ENTERS INTO RIGHT OF FIRST REFUSAL
AGREEMENT FOR 1,600,000 SHARES OF ITS STOCK WITH
LIMITED DIRECT ASSOCIATES, L.P.
Rochelle Park, New Jersey, September 21, 1999 - United Retail Group, Inc.
(NASDAQ-NMS:
"URGI") today announced that it entered into a right of first refusal
agreement for any proposed sale of 1,600,000 shares of its Common Stock,
representing 12% of shares outstanding, held by Limited Direct Associates,
L.P. "Limited").
The right has a term of one year, subject to extension by mutual agreement,
and applies to any sales that Limited may propose to make from time to time
on the Nasdaq National Market System and in negotiated or block
transactions. If United Retail Group, Inc. (the "Company") exercises the
right of first refusal, any shares that are proposed to be sold on the
NASDAQ National Market System will be sold to the Company instead (i) after
the market closes and before it opens again and (ii) at a purchase price
equal to that day's closing price. The Company has no obligation, however,
to exercise the right and purchase shares.
Limited has no obligation to propose any sales of shares.
The Company entered into a similar agreement with The Limited,
Inc./Intimate Brands, Inc. Foundation, whose present holding of shares of
Company Common Stock is not material.
Any purchases by the Company made under the rights of first refusal will be
included in the total authorized in the Company's recently announced stock
buyback program.
Any purchases of shares will be paid for from the Company's cash reserves.
United Retail Group, Inc. is a specialty retailer of large-size
women's fashion apparel, footwear and accessories featuring AVENUE(R) brand
merchandise. The Company operates 499 stores under its AVENUE(R) trade
name.
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