<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period (16 weeks) ended September 11, 1999.
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from .......... to ..........
Commission file number 1-5418
SUPERVALU INC.
(Exact name of registrant as specified in its Charter)
DELAWARE 41-0617000
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
11840 VALLEY VIEW ROAD, EDEN PRAIRIE, MINNESOTA 55344
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (612) 828-4000
Former name, former address and former fiscal year, if changed since last
report:
N/A
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
The number of shares outstanding of each of the issuer's classes of Common Stock
as of October 9, 1999 is as follows:
Title of Each Class Shares Outstanding
------------------- ------------------
Common Shares 139,603,717
<PAGE>
PART I - FINANCIAL INFORMATION
- --------------------------------------------------------------------------------
Item 1: Financial Statements
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF EARNINGS
- --------------------------------------------------------------------------------
SUPERVALU INC. and Subsidiaries
- --------------------------------------------------------------------------------
(In thousands, except per share data)
<TABLE>
<CAPTION>
Second Quarter (12 weeks) ended
Sept 11, 1999 % of sales Sept 12, 1998 % of sales
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 4,145,775 100.00% $ 3,937,318 100.00%
Costs and expenses:
Cost of sales 3,697,589 89.19 3,534,551 89.77
Selling and administrative expenses 344,120 8.30 308,127 7.83
Amortization of goodwill 6,024 0.15 4,773 0.12
Interest
Interest expense 27,439 0.66 27,274 0.69
Interest income 4,574 0.11 4,113 0.10
--------------------------------------------------------------------
Interest expense, net 22,865 0.55 23,161 0.59
--------------------------------------------------------------------
Total costs and expenses 4,070,598 98.19 3,870,612 98.31
--------------------------------------------------------------------
Earnings before income taxes 75,177 1.81 66,706 1.69
Provision for income taxes
Current 30,942 24,211
Deferred (1,247) 2,595
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Income tax expense 29,695 0.71 26,806 0.68
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Net earnings $ 45,482 1.10% $ 39,900 1.01%
====================================================================
Net earnings per common share - diluted $ .37 $ .33
Net earnings per common share - basic $ .37 $ .33
Weighted average number of common
shares outstanding
Diluted 123,682 122,178
Basic 122,483 120,753
Dividends declared per common share $ .1350 $ .1325
</TABLE>
All data subject to year-end audit.
See notes to consolidated financial statements.
2
<PAGE>
PART I - FINANCIAL INFORMATION
- --------------------------------------------------------------------------------
Item 1: Financial Statements
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF EARNINGS
- --------------------------------------------------------------------------------
SUPERVALU INC. and Subsidiaries
- --------------------------------------------------------------------------------
(In thousands, except per share data)
<TABLE>
<CAPTION>
Year-to-date (28 weeks) ended
------------------------------------------------------------------
Sept 11, 1999 % of sales Sept 12, 1998 % of sales
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 9,435,495 100.00% $9,139,894 100.00%
Costs and expenses:
Cost of sales 8,444,486 89.50 8,218,306 89.92
Selling and administrative expenses 757,718 8.03 702,178 7.68
Amortization of goodwill 12,850 0.14 11,095 0.12
Gain on sale 163,662 1.73 - -
Restructuring and other charges 103,596 1.09 - -
Interest
Interest expense 63,009 0.67 65,596 0.72
Interest income 9,899 0.11 10,290 0.11
------------------------------------------------------------------
Interest expense, net 53,110 0.56 55,306 0.61
------------------------------------------------------------------
Total costs and expenses 9,208,098 97.59 8,986,885 98.33
------------------------------------------------------------------
Earnings before income taxes 227,397 2.41 153,009 1.67
Provision for income taxes
Current 165,314 57,499
Deferred (50,120) 3,812
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Income tax expense 115,194 1.22 61,311 0.67
------------------------------------------------------------------
Net earnings $ 112,203 1.19% $ 91,698 1.00%
==================================================================
Net earnings per common share - diluted $ .92 $ .75
Net earnings per common share - basic $ .93 $ .76
Weighted average number of common
shares outstanding
Diluted 122,017 122,159
Basic 120,853 120,645
Dividends declared per common share $ .2675 $ .2625
</TABLE>
All data subject to year-end audit.
See notes to consolidated financial statements.
3
<PAGE>
CONSOLIDATED STATEMENTS OF NET SALES AND EARNINGS
- --------------------------------------------------------------------------------
SUPERVALU INC. and Subsidiaries
- --------------------------------------------------------------------------------
(In thousands)
<TABLE>
<CAPTION>
Second Quarter (12 weeks) ended Year-to-Date (28 weeks) ended
------------------------------------------------------------------------------------------
Net sales Sept. 11, 1999 Sept. 12, 1998 Sept. 11, 1999 Sept. 12, 1998
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Retail food $ 1,371,942 $ 1,144,399 $ 2,958,615 $ 2,553,002
33.1 % 29.1 % 31.4 % 27.9 %
Food distribution 3,535,769 3,449,892 8,134,984 8,058,989
85.3 % 87.6 % 86.2 % 88.2 %
Sales eliminations (761,936) (656,973) (1,658,104) (1,472,097)
(18.4) % (16.7) % (17.6) % (16.1) %
------------------------------------------------------------------------------------------
Total net sales $ 4,145,775 $ 3,937,318 $ 9,435,495 $ 9,139,894
100.0 % 100.0 % 100.0 % 100.0 %
- -----------------------------------------------------------------------------------------------------------------------------------
Earnings
- -----------------------------------------------------------------------------------------------------------------------------------
Retail food $ 31,516 $ 25,959 $ 73,631 $ 63,185
Food distribution 74,804 70,283 164,848 160,273
Gain on sale - - 163,662 -
Restructuring and other charges (1) - - (103,596) -
------------------------------------------------------------------------------------------
Total operating earnings 106,320 96,242 298,545 223,458
Interest income 4,574 4,113 9,899 10,290
Interest expense (27,439) (27,274) (63,009) (65,596)
General corporate expenses (8,278) (6,375) (18,038) (15,143)
------------------------------------------------------------------------------------------
Earnings before income taxes 75,177 66,706 227,397 153,009
Provision for income taxes (29,695) (26,806) (115,194) (61,311)
------------------------------------------------------------------------------------------
Net earnings $ 45,482 $ 39,900 $ 112,203 $ 91,698
===================================================================================================================================
</TABLE>
All data subject to year-end audit.
See notes to consolidated financial statements.
(1) In the first quarter, the company incurred restructuring and other charges
for retail food and food distribution of $19.4 and $84.2 million,
respectively.
4
<PAGE>
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
SUPERVALU INC. and Subsidiaries Second Quarter as of Fiscal Year End
- ---------------------------------------------------------------------------------------
(In thousands) September 11, February 27,
Assets 1999 1999
- ---------------------------------------------------------------------------------------
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 11,257 $ 7,608
Receivables, less allowance for losses of
$30,035 at September 11, 1999 and $18,983 at
February 27, 1999 541,916 410,799
Inventories 1,292,503 1,067,837
Other current assets 129,788 96,283
---------------------------------------
Total current assets 1,975,464 1,582,527
Long-term notes receivable 183,299 161,273
Property, plant and equipment, net 1,941,980 1,699,024
Goodwill 1,587,043 567,890
Other assets 380,773 255,235
---------------------------------------
Total assets $6,068,559 $4,265,949
=======================================
Liabilities and Stockholders' Equity
- ---------------------------------------------------------------------------------------
Current Liabilities
Notes payable $ 455,255 $ 89,157
Accounts payable 1,366,493 981,961
Current debt and obligations under capital
leases 50,802 232,928
Other current liabilities 330,944 217,861
---------------------------------------
Total current liabilities 2,203,494 1,521,907
Long-term debt and obligations under capital
leases 1,850,819 1,246,269
Other liabilities and deferred income taxes 199,448 192,134
Total stockholders' equity 1,814,798 1,305,639
---------------------------------------
Total liabilities and stockholders' equity $6,068,559 $4,265,949
=======================================
</TABLE>
All data subject to year-end audit.
See notes to consolidated financial statements.
5
<PAGE>
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
- --------------------------------------------------------------------------------
SUPERVALU INC. and Subsidiaries
- --------------------------------------------------------------------------------
(In thousands, except per share data)
<TABLE>
<CAPTION>
Capital in
Preferred Common Excess of Treasury Retained
Stock Stock Par Value Stock Earnings Total
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balances at February 28, 1998 $ 5,908 $ 150,670 $ 2,927 $ (507,296) $ 1,549,696 $ 1,201,905
Net earnings - - - - 191,338 191,338
Sales of common stock
under option plans - - (5,902) 35,497 (3,667) 25,928
Cash dividends declared
on common stock -
$.5275 per share - - - - (63,985) (63,985)
Compensation under employee
incentive plans - - 1,057 10,914 - 11,971
Treasury shares exchanged for
acquisition - - 1,918 2,167 - 4,085
Purchase of shares for treasury - - - (65,603) - (65,603)
- -----------------------------------------------------------------------------------------------------------------------------------
Balances at February 27, 1999 5,908 150,670 - (524,321) 1,673,382 1,305,639
Net earnings - - - - 112,203 112,203
Sales of common stock
under option plans - - (4,161) 8,350 - 4,189
Cash dividends declared
on common stock -
$.2675 per share - - - - (31,973) (31,973)
Compensation under employee
incentive plans - - (486) 5,482 - 4,996
Treasury shares exchanged for - - 138,519 303,016 - 441,535
acquisition
Redemption of preferred stock (5,908) - - - - (5,908)
Purchase of shares for treasury - - - (15,883) - (15,883)
- -----------------------------------------------------------------------------------------------------------------------------------
Balances at September 11, 1999 $ - $150,670 $ 133,872 $(223,356) $1,753,612 $1,814,798
===================================================================================================================================
</TABLE>
All data subject to year-end audit.
See notes to consolidated financial statements.
6
<PAGE>
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
SUPERVALU INC. and Subsidiaries
- --------------------------------------------------------------------------------
(In thousands)
<TABLE>
<CAPTION>
Year-to-date
(28 weeks ended)
- -----------------------------------------------------------------------------------------------------
Sept 11, Sept 12,
1999 1998
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
- -----------------------------------------------------------------------------------------------------
Net cash provided by operating activities $222,387 $290,629
- -----------------------------------------------------------------------------------------------------
Cash flows from investing activities
Additions to long-term notes receivable (24,635) (20,270)
Proceeds received on long-term notes receivable 22,942 20,425
Proceeds from sale of assets 359,206 24,339
Purchase of property, plant and equipment (179,401) (150,532)
Business acquisition, net of cash acquired (469,185) (24,998)
Decrease in other non-current assets 36,696 8,399
- -----------------------------------------------------------------------------------------------------
Net cash used in investing activities (254,377) (142,637)
- -----------------------------------------------------------------------------------------------------
Cash flows from financing activities
Net increase in checks outstanding, net of deposits 6,068 38,921
Net issuance (reduction) of short-term notes payable 351,412 (22,321)
Proceeds from issuance of long-term debt 346,300 83,500
Repayment of long-term debt (603,987) (186,445)
Dividends paid (31,861) (32,085)
Payment for purchase of treasury stock (15,883) (31,360)
Other cash provided by (used in) financing activities (16,410) 2,683
- -----------------------------------------------------------------------------------------------------
Net cash provided by (used in) financing activities 35,639 (147,107)
- -----------------------------------------------------------------------------------------------------
Net increase in cash and cash equivalents 3,649 885
Cash and cash equivalents at beginning of year 7,608 6,100
- -----------------------------------------------------------------------------------------------------
Cash and cash equivalents at end of second quarter $ 11,257 $ 6,985
=====================================================================================================
Supplemental Information:
Pretax LIFO income (expense) $ (1,337) $ 2,233
Pretax depreciation and amortization $130,378 $122,172
</TABLE>
All data subject to year-end audit.
See notes to consolidated financial statements.
7
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Accounting Policies
- -------------------
The summary of significant accounting policies is included in the notes to
consolidated financial statements in the 1999 annual report of SUPERVALU INC.
("SUPERVALU" or the "company").
Richfood Acquisition
- --------------------
On August 31, 1999, the company acquired, in a merger, all of the outstanding
common stock of Richfood Holdings, Inc. ("Richfood"), a major food retailer and
distributor operating primarily in the Mid-Atlantic region of the United States.
The acquisition will be accounted for as a purchase. The company issued
approximately 19.7 million shares of SUPERVALU common stock with a market value
of approximately $443 million and paid $443 million in cash for the common stock
of Richfood. In addition, the company repaid approximately $394 million of
outstanding Richfood debt. Approximately $291 million of Richfood debt remained
outstanding immediately after the acquisition. The allocation of the
consideration paid for Richfood to the consolidated assets and liabilities is
based on preliminary estimates of their respective fair values. The excess of
the purchase price over the fair value of net assets acquired of approximately
$1.1 billion is being amortized on a straight line basis over 40 years. The
results of Richfood's operations from August 31, 1999 have been included in the
company's financial statements. One-time charges related to the merger of $10 to
$15 million after tax are expected within the first eighteen months following
the close.
Unaudited pro forma consolidated results of continuing operations, as though the
companies had been combined at the beginning of the periods presented, are as
follow:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Year-to-date (28 weeks) ended
- --------------------------------------------------------------------------------------------
(In thousands, except per share data) September 11, 1999 September 12, 1998
- ------------------------------------------------------------------------ -------------------
<S> <C> <C>
Net sales $ 11,405,477 $ 11,042,378
Net earnings $ 130,668 (a) $ 91,670 (b)
Net earnings per common share - diluted $ .93 (a) $ .65 (b)
- --------------------------------------------------------------------------------------------
</TABLE>
(a) Amounts include the net gain on the sale of Hazelwood Farms Bakeries and
restructuring and other charges of $10.9 million or $ .08 per share.
(b) Amounts include a restructuring charge at Richfood of $14.5 million or
$.10 per share.
8
<PAGE>
Special Charges
- ---------------
In the first quarter of fiscal 2000, the company recorded one-time, pre-tax
restructuring and other charges of $103.6 million as a result of an extensive
review to reduce costs and enhance efficiency. Included in this total is $14.9
million for asset impairment costs. The restructuring charges include costs for
facility consolidation, non-core store disposal and rationalization of redundant
and certain decentralized administrative functions. Due to the above
restructuring items, the company expects approximately 2,500 employees to be
terminated. Details of the restructuring activity follow.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Initial Restructure Current Quarter Balance at
(In thousands) Activity Sept. 11, 1999
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Facility consolidation $ 34,143 $ 656 $ 33,487
Non-core store disposal 39,978 2,304 37,674
Infrastructure realignment 14,591 417 14,174
- --------------------------------------------------------------------------------------------
Total restructure $ 88,712 $ 3,377 $ 85,335
- --------------------------------------------------------------------------------------------
Employees 2,517 173 2,344
- --------------------------------------------------------------------------------------------
</TABLE>
Statement of Registrant
- -----------------------
The data presented herein is unaudited but, in the opinion of management,
includes all adjustments necessary for a fair presentation of the condensed
consolidated financial position of the company and its subsidiaries at September
11, 1999 and September 12, 1998 and the results of the company's operations and
condensed cash flows for the periods then ended. These interim results are not
necessarily indicative of the results of the fiscal years as a whole.
9
<PAGE>
Item 2: Management's Discussion and Analysis of Financial Condition and Results
of Operations
Results of Operations
- ---------------------
RESULTS FOR THE QUARTER:
The company recorded record sales of $4.1 billion, net earnings of $45.5 million
and diluted earnings per share of $.37. Last year sales were $3.9 billion, net
earnings were $39.9 million and diluted earnings per share were $.33.
Net sales
Net sales increased 5.3 percent compared to last year, positively impacted by a
19.9 percent increase in retail food sales and a 2.5 percent increase in food
distribution sales.
Retail food sales increased over last year primarily due to acquisitions and new
store openings over the past twelve months. Same-store sales were essentially
flat compared to last year, impacted by low inflation, competitive activities
and cannibalization in certain markets. Food distribution sales increased from
last year primarily due to the growth of the retail operations and the Richfood
acquisition fully offsetting the loss of sales from the sale of Hazelwood Farms
Bakeries in the first quarter.
Gross profit
Gross profit as a percentage of net sales was 10.8 percent compared to 10.2
percent last year. The growing proportion within the company's total sales mix
of the higher margin retail food business favorably impacted the gross profit
percentage. Retail food and food distribution gross profit margins were
comparable to last year.
Selling and administrative expenses
Selling and administrative expenses were 8.3 percent of net sales compared to
7.8 percent last year. The higher percentage was primarily due to the growing
proportion of the company's retail food business, which operates at a higher
selling and administrative expense percentage than the food distribution
business. Retail food and food distribution selling and administrative expenses
were comparable to last year, as a percent of sales.
Operating earnings
The company's operating earnings (earnings before interest and taxes) increased
to $98.0 million compared with $89.9 million last year. Operating earnings
before depreciation and amortization increased to $ 155.8 million compared with
$142.8 million last year, a 9.1 percent increase. Retail food operating earnings
increased 21.4 percent to $31.5 million from last year's $26.0 million.
10
<PAGE>
Food distribution operating earnings increased 6.4 percent to $74.8 million from
$70.3 million last year. The increase in operating earnings was primarily due to
increased sales.
Interest expense and income
Interest expense increased to $27.4 million compared with $27.3 million last
year, primarily reflecting increased borrowings resulting from the Richfood
acquisition offset by lower average borrowings during most of the quarter
primarily from cash generated from the sale of Hazelwood Farms Bakeries in the
first quarter. Interest income increased to $4.6 million compared with $4.1
million last year.
Income taxes
The effective tax rate was 39.5 percent, consistent with last year's annual
effective tax rate.
Net earnings
Net earnings were $45.5 million or $.37 per share compared with last year's net
earnings of $39.9 million or $.33 per share. Weighted average shares increased
to 123.7 million compared with last year's 122.2 million due to the
approximately 19.7 million shares issued in connection with the Richfood
acquisition.
YEAR-TO-DATE RESULTS:
Net sales
Net sales increased 3.2 percent to $9.4 billion compared with $9.1 billion last
year. Retail food sales increased 15.9 percent over last year and food
distribution sales had a slight increase over last year of .9 percent.
Retail food sales increased over last year primarily due to acquisitions and new
store openings over the past twelve months. Same-store sales were essentially
flat compared to last year, impacted by low inflation, competitive activities
and cannibalization in certain markets. Food distribution sales increased from
last year primarily due to the growth of the retail operations and the Richfood
acquisition fully offsetting the loss of sales from the sale of Hazelwood Farms
Bakeries in the first quarter.
Gross profit
Gross profit as a percentage of net sales was 10.5 percent compared to 10.1
percent last year. The growing proportion within the company's total sales mix
of the higher margin retail food business favorably impacted the gross profit
percentage. Retail food and food distribution gross profit margins were
comparable to last year.
11
<PAGE>
Selling and administrative expenses
Selling and administrative expenses were 8.0 percent of net sales compared to
7.7 percent last year. The higher percentage was primarily due to the growing
proportion of the company's retail food business, which operates at a higher
selling and administrative expense percentage than the food distribution
business. Retail food and food distribution selling and administrative expenses
were comparable to last year, as a percent of sales.
Sale of Business
In the first quarter, the company sold Hazelwood Farms Bakeries, which resulted
in a pre-tax gain of $163.7 million. The company had identified Hazelwood Farms
Bakeries as a non-strategic asset to be liquidated to allow the redeployment of
capital. The transaction resulted in $248.2 million of after-tax cash proceeds.
Special Charges
In the first quarter, the company recorded one-time, pre-tax restructuring and
other charges of $103.6 million as a result of an extensive review to reduce
costs and enhance efficiency over the next 18 months. Included in this total is
$14.9 million for asset impairment costs. The charge by segment was $19.4
million for retail and $84.2 million for food distribution. The restructuring
charges include costs for facility consolidation, non-core store disposals and
rationalization of redundant and certain decentralized administrative functions.
A total of $3.4 million has been offset against the restructuring reserve
year-to-date.
Facility consolidation costs of $47.2 million primarily include losses for the
sale or writedown of assets and leases. Holding costs are also included in this
total. Non-core store disposals include the sale or closure of retail locations
currently operated in the distribution business and other retail stores that are
located in non-strategic markets. These costs total $41.8 million and include
losses to be incurred upon the sale or closure of the stores and related assets,
costs for future lease obligations and lease buy-outs. Rationalization of
redundant and certain decentralized administrative functions consists primarily
of severance for staff reductions as a result of both standardizing and
consolidating business support functions across the company's home office,
retail and distribution operating regions. These costs amount to $14.6 million.
Due to the above restructuring items, the company expects approximately 2,500
employees to be terminated.
Operating earnings
The company's operating earnings (earnings before interest and taxes) increased
to $280.5 million compared with $208.3 million last year. Operating earnings
excluding the gain on the sale of Hazelwood Farms Bakeries and restructuring and
other charges were $220.4 million, a 5.8 percent increase over last year.
Operating earnings before depreciation and amortization increased to $410.9
million compared with $330.5 million last year. Operating earnings before
depreciation and amortization excluding one-time items were $350.8, a 6.2
percent increase over
12
<PAGE>
last year. Retail food operating earnings, excluding restructuring and other
charges, increased 16.5 percent to $73.6 million from last year's $63.2 million.
Food distribution operating earnings, excluding the gain on the sale of
Hazelwood Farms Bakeries and restructuring and other charges, increased 2.9
percent to $164.8 million from $160.3 million last year. The increase in
operating earnings was primarily due to increased sales. Including one-time
items, operating earnings for retail food and food distribution decreased 14.1
percent and increased 52.4 percent, respectively.
Interest expense and income
Interest expense decreased to $63.0 million compared with $65.6 million last
year, primarily reflecting lower average borrowings primarily from cash
generated from the sale of Hazelwood Farms Bakeries in the first quarter offset
by increased borrowings resulting from the Richfood acquisition. Interest income
decreased to $9.9 million compared with $10.3 million last year, primarily due
to the reduction of notes receivable as the result of the sale of notes in the
ordinary course of business.
Income taxes
The effective tax rate was 50.7 percent compared with 40.1 percent last year.
The higher effective tax rate is primarily the result of the gain on the sale of
Hazelwood Farms Bakeries. Excluding the impact of the gain on the sale of
Hazelwood Farms Bakeries, the effective tax rate was approximately 39.5 percent,
consistent with the annual effective tax rate last year.
Net earnings
Net earnings were $112.2 million or $.92 per share compared with last year's net
earnings of $91.7 million or $.75 per share. Excluding the gain on the sale of
Hazelwood Farms Bakeries and restructuring and other charges, net earnings were
$101.3 million or $.83 per share. Weighted average shares declined to 122.0
million compared with last year's 122.2 million. In the second quarter of fiscal
2000, the company issued approximately 19.7 million shares of SUPERVALU common
stock resulting from the Richfood acquisition. The diluted outstanding shares at
the end of the second quarter were 140.8 million.
Liquidity and Capital Resources
- -------------------------------
Internally generated funds from operations continued to be the major source of
liquidity and capital growth. Cash provided from operations year-to-date was
$222.4 million compared with $290.6 million last year primarily reflecting
changes in working capital timing. Net cash used in investing activities was
$254.4 million compared with $142.6 million last year. The change from the prior
year reflects cash used for business acquisitions of $469.2 million and cash
proceeds received on the sale of assets of $359.2 million, which includes the
proceeds received from the sale of Hazelwood Farms Bakeries.
13
<PAGE>
In addition to the $400 million revolving credit agreement, the company put in
place an additional 364 day $300 million revolving credit agreement during the
second quarter. The revolving credit agreements are available for general
corporate purposes and to support the company's commercial paper program. There
were no drawings on the revolving credit agreements during the quarter and $455
million of commercial paper was outstanding at the end of the quarter. A total
of $40.5 million of letters of credit were outstanding at the end of the
quarter.
On August 31, 1999, the company acquired, in a merger, all of the outstanding
common stock of Richfood. The company issued approximately 19.7 million shares
of SUPERVALU common stock with a market value of approximately $443 million and
paid $443 million in cash for the common stock of Richfood. In addition, the
company repaid approximately $394 million of outstanding Richfood debt. To
finance the acquisition and repay the Richfood debt the company used cash, a
portion of the proceeds from the issuance of $350 million of 7 7/8 percent notes
due 2009 and proceeds from the issuance of commercial paper. Subsequent to the
end of the quarter, the company issued $250 million of 7 5/8 percent notes due
2004 and used the proceeds to reduce commercial paper outstanding.
YEAR 2000
General
SUPERVALU's company wide Year 2000 Project ("Project") is proceeding on
schedule. The Project is addressing the issue of application systems,
information technology (IT) systems and technologies which include embedded
systems being able to distinguish between the year 1900 and the year 2000. In
1996, the company began establishing processes for evaluating and managing the
risks associated with the Project. The Project is divided into six components.
These components include program management, communications, application
conversions and technology upgrades, contingency planning, quality assurance and
external entities. The company is using both internal and external resources to
implement the Project. Year 2000 remediation and testing has been substantially
completed. The company has developed contingency plans for key business
functions that could be impacted by year 2000 issues and the focus of the
remaining year 2000 work will shift to readying contingency plans and preparing
for the year-end transition.
The company has relationships with a significant number of key business
partners. The company has had formal communications with its key business
partners and has developed formal contingency plans to mitigate the risk to the
company if the business partners are not prepared for the year 2000. The company
will continue to communicate with its key business partners on relevant issues
throughout 1999 and beyond. There can be no guarantee that the business partners
will successfully and timely reprogram or replace and test all of their own
computer hardware, software and process control systems. While the failure of a
single business partner to achieve year 2000 compliance should not have a
material adverse effect on
14
<PAGE>
the company's results of operations, the failure of several key business
partners could have such an effect.
Costs
The total costs associated with required modifications to become year 2000
compliant is not expected to be material to the company's financial position.
The company has incurred costs to date of $26.3 million. Estimated costs for the
remainder of work is $2.4 million for a total projected Project cost of $28.7
million. The estimated remaining costs are primarily for monitoring and
supporting the transition and contingency plans.
Risks
While the effort to assess and correct the company's year 2000 issues have been
substantially completed prior to related forecasted failure horizons, the
company has been taking specific measures to assess risks and develop specific
contingency plans. Key business functions have been assessed and action plans
have been created which describe the communications, operations and IT
activities that will be conducted if the contingency plans must be executed.
The costs of the Project and the completion dates are based on management's best
estimates, which were derived from assumptions of future events including the
availability of resources, key business partner modification plans and other
factors. There can be no guarantee that these estimates will be achieved and
actual results could vary due to uncertainties.
The company's year 2000 efforts are ongoing and its overall Project will
continue to evolve as new information becomes available. The failure to correct
a material year 2000 problem could result in an interruption in certain normal
business activities and operations. Due to the general uncertainty inherent in
the year 2000 problem, resulting in part from the uncertainty of the year 2000
readiness of third parties on whom the company relies, the company is unable to
determine at this time whether the consequences of year 2000 failures will have
a material adverse impact on the company's results of operation but the company
believes that, with the implementation of new business systems and completion of
the Project as scheduled, the possibility of significant interruptions of normal
operations should be reduced.
Cautionary statements for purposes of the Safe Harbor Provisions of the Private
Securities Litigation Reform Act of 1995
The information in this 10Q includes forward-looking statements. Important risks
and uncertainties that could cause actual results to differ materially from
those discussed in such forward looking statements are detailed in Exhibit 99.1
to the company's Annual Report on Form 10-K for the fiscal year ended February
27, 1999 and under the caption "Year 2000" in this Form 10-Q; other risks or
uncertainties may be detailed from time to time in the company's future
Securities and Exchange Commission filings.
15
<PAGE>
PART II - OTHER INFORMATION
---------------------------
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits filed with this Form 10-Q:
4.1 Letter Amendment, dated as of August 20, 1999, to the Credit
Agreement dated as of October 8, 1997 among SUPERVALU, the
Lenders named therein and Bankers Trust Company, as Agent.
4.2 Fourth Supplemental Indenture dated as of August 4, 1999 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture
dated as of July 1, 1987 between SUPERVALU and Bankers Trust
Company, as Trustee.
4.3 Fifth Supplemental Indenture dated as of September 17, 1999
between SUPERVALU and Bankers Trust Company, as Trustee, to
Indenture dated as of July 1, 1987 between SUPERVALU and Bankers
Trust Company, as Trustee.
4.4 Registration Rights Agreement dated as of August 4, 1999 among
SUPERVALU and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co., Salomon Smith Barney Inc., U.S. Bancorp
Piper Jaffray Inc., Chase Securities Inc., First Union Capital
Markets Corp., and McDonald Investments Inc.
4.5 Registration Rights Agreement dated as of September 17, 1999
among SUPERVALU and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Goldman, Sachs & Co., Salomon Smith Barney Inc.,
U.S. Bancorp Piper Jaffray Inc., Banc One Capital Markets, Inc.,
Deutsche Bank Securities Inc. and Wachovia Securities, Inc.
(11) Computation of Earnings Per Common share.
(27) Financial Data Schedule.
16
<PAGE>
(b) Reports on Form 8-K:
The Registrant filed the following reports on Form 8-K during the
quarterly period ending on September 11, 1999:
(i) On July 21, 1999 reporting the execution of a merger
agreement with Richfood Holdings, Inc. and including certain
unaudited pro forma financial statements relating to that
merger; and
(ii) On August 31, 1999 reporting the consummation of the
Registrant's acquisition of Richfood Holdings, Inc.
17
<PAGE>
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 thereunto duly authorized.
SUPERVALU INC. (Registrant)
Dated: October 15, 1999 By: /s/ Pamela K. Knous
--------------------------------
Pamela K. Knous
Executive Vice President, Chief
Financial Officer
(Authorized officer of Registrant)
18
<PAGE>
EXHIBIT 4.1
EXECUTION COPY
LETTER AMENDMENT
Dated as of August 20, 1999
To the banks, financial institutions
and other institutional lenders
(collectively, the "Lenders") parties
to the Credit Agreement referred to
below and to Bankers Trust Company,
as agent (the "Agent") for the Lenders
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of October 8, 1997 (such Credit
Agreement, as amended, supplemented or otherwise modified through the date
hereof, the "Credit Agreement") among the undersigned and you. Capitalized terms
not otherwise defined in this Letter Amendment have the same meanings as
specified in the Credit Agreement.
It is hereby agreed by you and us as follows:
The Credit Agreement is, effective as of the date of this Letter Amendment,
hereby amended as follows:
(a) Section 5.01(d) is amended in full to read as follows:
"(d) Leverage Ratio. Maintain at all times a ratio of
Consolidated Debt of the Borrower and its Consolidated Subsidiaries to
Total Capital of not more than .65:1.0."
(b) Section 5.02(d)(iv) is amended to (i) delete the word "secured" in
the first line thereof and (ii) add the words ", if at all," immediately
following the word "secured" in clause (x) thereof.
This Letter Amendment shall become effective as of the date first above
written when, and only when, the Agent shall have received counterparts of this
Letter Amendment executed by the undersigned and the Majority Lenders or, as to
any of the Lenders, advice satisfactory to the Agent that such Lender has
executed this Letter Amendment. This Letter Amendment is subject to the
provisions of Section 8.01 of the Credit Agreement.
<PAGE>
On and after the effectiveness of this Letter Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes to
"the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Letter Amendment.
The Credit Agreement and the Notes, as specifically amended by this Letter
Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Letter Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any Lender or the
Agent under the Credit Agreement or any Note, nor constitute a waiver of any
provision of the Credit Agreement or any Note.
If you agree to the terms and provisions hereof, please evidence such
agreement by executing and returning at least three counterparts of this Letter
Amendment to the attention of Michael Stein at Shearman & Sterling, 599
Lexington Avenue, New York, NY 10022.
This Letter Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Letter Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Letter Amendment.
This Letter Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
Very truly yours,
SUPERVALU INC.
By /s/
Title:
Agreed as of the date first above written:
BANKERS TRUST COMPANY,
as Agent and as Lender
By /s/
----------------------------
Title:
- ------------------------------
[type in legal name of Lender]
By
----------------------------
Title:
<PAGE>
Exhibit 4.2
================================================================================
SUPERVALU INC.,
Issuer,
AND
BANKERS TRUST COMPANY,
Trustee
-----------------------------
FOURTH SUPPLEMENTAL INDENTURE
TO
Indenture dated as of July 1, 1987, as amended by the First
Supplemental Indenture dated as of August 1, 1990,
the Second Supplemental Indenture
dated as of October 1, 1992, and the Third Supplemental Indenture
dated as of September 1, 1995.
-----------------------------
Dated as of August 4, 1999
================================================================================
<PAGE>
FOURTH SUPPLEMENTAL INDENTURE, dated as of August 4, 1999 between
SUPERVALU INC. (formerly Super Valu Stores, Inc.), a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 11840 Valley View Road, Eden Prairie,
Minnesota 55344, and BANKERS TRUST COMPANY, a banking corporation duly organized
and existing under the laws of the State of New York, as Trustee (herein called
the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee that
certain Indenture, dated as of July 1, 1987, as amended by that certain First
Supplemental Indenture (the "First Supplemental Indenture"), dated as of August
1, 1990, that certain Second Supplemental Indenture (the "Second Supplemental
Indenture"), dated as of October 1, 1992, and that certain Third Supplemental
Indenture, dated as of September 1, 1995 (said Indenture, as amended by such
prior supplemental indentures, being herein called the "Original Indenture", and
the Original Indenture, as amended by this Fourth Supplemental Indenture, being
herein called the "Indenture"), pursuant to which one or more series of
unsecured debentures, notes or other evidences of indebtedness of the Company
(herein called the "Securities") may be issued from time to time.
Section 901(7) of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders to make provisions to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 of the Indenture.
Pursuant to the terms of Section 901(7) of the Indenture, the Company
desires to provide for the establishment of the form and terms of a new series
of its Securities to be known as its 7 7/8% Notes due 2009 (herein called the
"Notes").
Section 9.01(9) of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of the Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Fourth Supplemental Indenture is authorized
or permitted by the Indenture and (ii) a copy of the resolutions of its Board of
Directors certified by its Secretary, pursuant to which this Fourth Supplemental
Indenture has been authorized.
All things necessary to make this Fourth Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and supplement
to the Indenture have been done.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, and for other consideration the adequacy and sufficiency
of which are hereby acknowledged, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
<PAGE>
ARTICLE ONE
DEFINED TERMS
Section 101. Defined Terms. Except as otherwise expressly provided in
this Fourth Supplemental Indenture or in the form of Note attached as Exhibit A
hereto or otherwise clearly required by the context hereof or thereof, all
capitalized terms used and not defined in this Fourth Supplemental Indenture
that are defined in the Original Indenture shall have the meanings assigned to
them in the Original Indenture. For all purposes of this Fourth Supplemental
Indenture:
"Additional Interest" has the meaning set forth in Exhibit A hereto.
"Certificated Note" has the meaning set forth in Section 204 hereof.
"Closing Date" means August 4, 1999.
"Commission", as used in this Fourth Supplemental Indenture and the
certificates evidencing the Notes (other than the certificates evidencing the
Exchange Notes) and, if and to the extent expressly provided pursuant to Section
301 of the Original Indenture with respect to any other series of Securities
originally issued after the date hereof, as used with respect to such other
Securities and in the certificates evidencing such other series of Securities,
means the Securities and Exchange Commission or any successor thereto. The term
"Commission", as used elsewhere in the Indenture, unless and to the extent
otherwise expressly provided pursuant to Section 301 of the Original Indenture
with respect to any series of Securities (other than the Notes) originally
issued after the date hereof, has the meaning set forth in the Original
Indenture.
"Exchange Notes" means any of the Exchange Securities (as defined in
the Registration Rights Agreement).
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Global Note" has the meaning set forth in Section 204 hereof.
"Global Securities Legend" has the meaning set forth in Exhibit A
hereto.
"Initial Purchaser" means any one of the Initial Purchasers (as defined
in the Registration Rights Agreement).
"Institutional Accredited Investor" means an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Notes" means any of the Securities of the series designated in the
second paragraph of the recitals hereof and Section 201 hereof that are
authenticated and delivered under the Indenture. For all purposes of the
Indenture, the term "Notes" shall include the Notes initially issued on the
Closing Date, any Exchange Notes issued in exchange for Notes pursuant to the
Exchange Offer, any Private Exchange Notes issued in exchange for Notes pursuant
to the Registration Rights Agreement, and any other Notes issued after the
Closing Date under the Indenture. For purposes of the Indenture, all Notes
(including,
2
<PAGE>
without limitation, the Exchange Notes and the Private Exchange Notes) shall
vote together and otherwise constitute a single series of Securities under the
Indenture.
"Private Exchange Notes" means any of the Private Exchange Securities
(as defined in the Registration Rights Agreement).
"Prospectus" has the meaning set forth in the Registration Rights
Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registrable Securities" has the meaning set forth in the Registration
Rights Agreement.
"Registration Default" has the meaning set forth in Exhibit A hereto.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of the Closing Date, between the Company and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney
Inc., U.S. Bancorp Piper Jaffray Inc. and the other parties thereto.
"Registration Statement" has the meaning set forth in the Registration
Rights Agreement.
"Resale Restriction Termination Date" has the meaning set forth in
Exhibit A hereto.
"Restricted Note" means any Note except for (i) an Exchange Note issued
pursuant to the Exchange Offer, (ii) a Note which has been sold or transferred
pursuant to an effective Registration Statement pursuant to the Registration
Rights Agreement, (iii) a Note from which the Securities Act Legend has been
removed in accordance with the provisions of this Fourth Supplemental Indenture,
and (iv) a Note issued upon registration of transfer of, or in exchange for,
Notes which are not Restricted Notes.
"Restricted Security" means any Security which is a "restricted
security" within the meaning of Rule 144.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securities Act Legend" has the meaning set forth in Exhibit A hereto.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Transfer Certificate" has the meaning set forth in Section 503(a)(i)
hereof.
All references herein to Rule 144, Rule 144A or Rule 501 under the
Securities Act, and all reference to any subsections or terms defined therein,
shall in each case include all successor provisions thereto.
3
<PAGE>
ARTICLE TWO
TERMS OF THE NOTES
Section 201. Establishment of the Notes. There is hereby authorized and
established a series of Securities designated the 7 7/8% Notes due 2009, limited
in aggregate principal amount to $350,000,000 (except as provided in Section
301(2) of the Original Indenture); provided that the Company may, without the
consent of the Holders of the Outstanding Notes, "reopen" this series of
Securities so as to increase the aggregate principal amount of Notes Outstanding
in compliance with the procedures set forth in the Indenture, including Sections
301 and 303 thereof, so long (i) as any such additional Notes are issued prior
to the first date on which any Registration Statement is filed with the
Commission, (ii) any such additional Notes have the same tenor and terms
(including, without limitation, rights to receive accrued and unpaid interest)
as the Notes then Outstanding, and (iii) appropriate provision is made by the
Company so that any such additional Notes may be tendered for Exchange Notes
pursuant to the Exchange Offer and, if applicable, registered pursuant to a
Shelf Registration Statement in the same manner as the Notes originally issued
on the Closing Date.
Section 202. Terms of the Notes. The Stated Maturity on which the
principal of the Notes shall be due and payable shall be August 1, 2009.
The principal of the Notes shall bear interest at the rate of 7 7/8%
per annum (subject, in the case of Notes which are Registrable Securities, to
increase upon the occurrence of any Registration Default as provided in the form
of Note attached hereto as Exhibit A) from August 4, 1999 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable semi-annually in arrears on February 1 and August 1 (each, an
"Interest Payment Date") in each year, commencing February 1, 2000, to the
Persons in whose names the Notes (or one or more Predecessor Securities) are
registered at the close of business on the January 15 or July 15 immediately
preceding such Interest Payment Dates (each, a "Regular Record Date") regardless
of whether such Regular Record Date is a Business Day. Any overdue principal of
and premium, if any, on the Notes and any overdue installment of interest on the
Notes shall, to the extent permitted by law, bear interest at the rate of 7 7/8%
per annum (subject, in the case of Notes which are Registrable Securities, to
increase upon the occurrence of any Registration Default as provided in the form
of Note attached hereto as Exhibit A).
Promptly following any increase in the interest rate on the Registrable
Securities as the result of a Registration Default, the Company shall deliver an
Officers' Certificate to the Trustee, notifying the Trustee of such Registration
Default and setting forth the effective date of such increase in the interest
rate on the Registrable Securities and the interest rate in effect on the
Registrable Securities as a result of such Registration Default, and, in the
event of any further increase in the interest rate on the Registrable Securities
as the result of the continuance of a Registration Default, shall promptly
deliver a similar Officers' Certificate to the Trustee. Any such increase in the
interest rate on the Registrable Securities shall remain in effect until such
time as all Registration Defaults have been cured or ceased to exist and the
Company shall have delivered an Officers' Certificate to the Trustee to the
effect that (i) all Registration Defaults have been cured or have ceased to
exist and (ii) the date of such cessation or cure, whereupon the interest rate
on the Registrable Securities shall be reduced to the original interest rate
thereon effective as of the date of such cessation or cure.
Interest on the Notes shall be calculated on the basis of a 360-day
year of twelve 30-day months.
No additional amounts will be payable on any Notes held by a Person who
is a United States Alien in respect of any tax, assessment or governmental
charge withheld or deducted.
4
<PAGE>
The Borough of Manhattan, The City of New York is hereby designated as
a Place of Payment for the Notes; and the place where the principal of and
premium, if any, and interest on the Notes shall be payable, where Notes may be
surrendered for registration of transfer and exchange, and where notices and, if
other than in the manner provided in Section 105 of the Original Indenture,
demands to or upon the Company in respect of the Notes may be served, shall be
the office or agency maintained by the Company for that purpose in the Borough
of Manhattan, The City of New York, which initially shall be the office of the
Trustee located at Four Albany Street, New York, New York 10006, Attention:
Corporate Trust Services.
The Notes are subject to redemption at the option of the Company as
provided in the form of Note attached hereto as Exhibit A and in the Indenture.
The Notes shall not have the benefit of a sinking fund.
The Notes shall be subject to defeasance and covenant defeasance at the
option of the Company as provided in Sections 403 and 1011 of the Original
Indenture; provided that, without limitation to the provisions of Sections 403
and 1011 of the Original Indenture, the provisions of Section 303 and Article V
of this Fourth Supplemental Indenture shall survive any such defeasance or
covenant defeasance and remain in full force and effect.
The Notes shall have such other terms and provisions as are set forth
in the form of Note attached hereto as Exhibit A (all of which incorporated by
reference in and made a part of this Fourth Supplemental Indenture as if set
forth in full at this place).
Section 203. Denominations. The Notes shall be issued in denominations
of $100,000 and integral multiples of $1,000 in excess thereof; provided,
however, that Exchange Notes shall be issued in denominations of $1,000 and
integral multiples thereof.
Section 204. Form. The Notes (including, without limitation, the
Exchange Notes) shall be in substantially the form set forth in Exhibit A
hereto, with such changes therein as may be authorized by any officer of the
Company executing the Notes by manual or facsimile signature, such approval to
be conclusively evidenced by the execution thereof by such officer.
The Notes shall be issued as Registered Securities without coupons.
Notes initially offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Notes ("Global
Notes") and the Exchange Notes shall be issued initially in the form of one or
more permanent Global Notes. The initial Depositary for the Global Notes shall
be The Depository Trust Company. The Global Notes shall be registered in the
name of the Depositary or a nominee of the Depositary and deposited with the
Trustee, as custodian for the Depositary.
Notes initially offered and sold to Institutional Accredited Investors
that are not QIBs shall be issued initially in the form of certificated Notes
(the "Certificated Notes").
Anything herein to the contrary notwithstanding, if any Private
Exchange Notes are issued, then such Private Exchange Notes shall be issued in
denominations of $100,000 and integral multiples of $1,000 in excess thereof,
shall provide for the payment of Additional Interest upon a Registration
Default, and shall bear the Securities Act Legend until such time as any such
Private Exchange Note shall cease to be a Restricted Note, in which case the
Company will, at the request of the Holder, issue in exchange therefor or upon
transfer thereof, an Exchange Note. Anything herein to the
5
<PAGE>
contrary notwithstanding, the Private Exchange Notes shall be issued as Global
Notes or, if requested by any Holder thereof, as Certificated Notes.
ARTICLE THREE
AMENDMENTS TO ORIGINAL INDENTURE
Section 301. Amendment to Section 305 of the Original Indenture. Clause
(i) of the last paragraph of Section 305 of the Original Indenture (such last
paragraph having been added by Section 106(b) of the First Supplemental
Indenture) is hereby amended and restated, but only insofar as relates to the
Notes and any other series of Securities originally issued after the date hereof
(unless otherwise expressly provided pursuant to Section 301 of the Original
Indenture with respect to the Securities of any such other series), to read in
full as follows:
"(i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security
or if at any time such Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934,
as amended, and, in either such case, the Company does not
appoint a successor Depositary within 90 days thereafter,".
Section 302. Amendment to Section 801 of the Original Indenture.
Section 801 of the Original Indenture is hereby amended, but only insofar as
relates to the Notes and, if expressly provided pursuant to Section 301 of the
Original Indenture with respect to any other series of Securities originally
issued after the date hereof, such other series of Securities, by substituting
the following language at the end of Section 801(1) of the Original Indenture
after the words "performed or observed":
", and shall also expressly assume by an amendment or
supplement to each Registration Agreement (as defined below),
executed and delivered to the Trustee, in form satisfactory to
the Trustee, all covenants and other obligations of the
Company under such Registration Agreement (as used in this
paragraph (1), the term "Registration Agreement" means (i) the
Registration Rights Agreement as defined in the Fourth
Supplemental Indenture (the "Fourth Supplemental Indenture")
dated as of August 4, 1999 between the Company and the Trustee
and (ii) if expressly provided pursuant to Section 301 of the
Original Indenture with respect to any series of Securities
originally issued after the date of the Fourth Supplemental
Indenture, any registration rights agreement or similar
agreement entered into by the Company in connection with the
issuance of the Securities of such series);"
Section 303. Amendment to Article Ten of the Original Indenture.
Article Ten of the Original Indenture is hereby amended by adding the following
covenants, to be designated as Sections 1013 and 1014 (the original Section 1013
of the Original Indenture having been redesignated as Section 1012 pursuant to
Section 209 of the Second Supplemental Indenture), which Sections shall read in
full as set forth below; provided that such Sections 1013 and 1014 shall be for
the sole and exclusive benefit of the Notes and, if so expressly provided
pursuant to Section 301 of the Original Indenture with respect to any other
series of Securities originally issued after the date hereof, such other series
of Securities:
6
<PAGE>
"SECTION 1013. Acquisition of Notes by the Company.
All Restricted Securities of any series which are
redeemed, purchased or otherwise acquired by the Company or
any of its Subsidiaries or "affiliates" (as defined in Rule
144) shall be delivered to the Trustee for cancellation and
neither the Company nor any of its Subsidiaries or
"affiliates" may hold or resell or otherwise transfer such
Restricted Securities or issue any new Securities of such
series to replace any such Restricted Securities. As used in
this Section 1013 and in Section 1014 below, the terms
"Restricted Securities", "Securities Act", "Rule 144" and
"Rule 144A" have the meaning set forth in the Fourth
Supplemental Indenture."
"SECTION 1014. Rule 144A Information.
The Company will take all actions necessary to permit
resales of Restricted Securities including, without
limitation, furnishing, upon request of a Holder or beneficial
owner of a Restricted Security or any prospective purchaser
designated by such Holder or beneficial owner, to such Holder
or beneficial owner or prospective purchaser, as the case may
be, the financial and other information of the Company
required to be delivered under Rule 144A(d)(4) of the
Securities Act, if at the time of such request the Company is
not a reporting company under Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended."
ARTICLE FOUR
ORIGINAL ISSUE OF NOTES
Section 401. Notes. Notes in the aggregate principal amount of
$350,000,000 may be executed by the Company and delivered to the Trustee for
authentication and the Trustee shall thereupon authenticate and, on the Closing
Date, deliver said Notes upon a Company Order without any further action by the
Company.
Section 402. Exchange Notes. Exchange Notes and Private Exchange Notes
may from time to time be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Exchange Notes or Private Exchange Notes, as the case may be, upon
cancellation of an equal amount of Notes tendered for exchange pursuant to the
Exchange Offer (in a case of the Exchange Notes) or pursuant to the Registration
Rights Agreement (in the case of the Private Exchange Notes), upon a Company
Order without any further action by the Company.
7
<PAGE>
ARTICLE FIVE
SPECIAL TRANSFER PROVISIONS
Section 501. Legend on Restricted Notes. (a) Each Note (including
Global Notes) shall bear a Securities Act Legend until such time as such Note is
exchanged for an Exchange Note (it being understood that the Exchange Notes
shall not bear the Securities Act Legend) or sold pursuant to an effective Shelf
Registration Statement pursuant to the Registration Rights Agreement; provided
that upon the request made by the Holder of any Note bearing a Securities Act
Legend from and after the Resale Restriction Termination Date with respect to
such Note, the Company will execute and the Trustee will authenticate and
deliver, in exchange for such Note, a new Note in like aggregate principal
amount but not bearing the Securities Act Legend.
(b) Any Note issued upon registration of transfer or exchange of a Note
which bears a Securities Act Legend shall, except as otherwise permitted
pursuant to this Fourth Supplemental Indenture, also bear a Securities Act
Legend. Any Note issued upon registration of transfer or exchange of a Note
which does not bear a Securities Legend shall not bear a Securities Act Legend.
The provisions of this paragraph shall also apply to the transfer or exchange of
beneficial interests in Global Notes.
(c) Except as provided in Section 503 of this Fourth Supplemental
Indenture, and except in the case of Exchange Notes issued pursuant to the
Exchange Offer, the Trustee shall not issue any Notes which do not bear the
Securities Act Legend until it has received an Officers' Certificate from the
Company directing it to do so.
Section 502. Book-Entry Provisions for Global Notes.
(a) General. Transfers of a Global Note shall be limited as specified
in Section 204 of the Original Indenture (such Section 204 having been added by
Section 103 of the First Supplemental Indenture). Transfers and exchanges of
beneficial interests in a Global Note may be made in accordance with the rules
and procedures of the Depositary, subject to the provisions of Section 503 of
this Fourth Supplemental Indenture to the extent applicable.
(b) Transfers of Global Notes for Certificated Notes. In connection
with any transfer of a beneficial interest in a Global Note to a Person who will
take delivery thereof in the form of a Certificated Note, the Trustee shall
reflect on its books and records and by endorsement on the grid attached to such
Global Note the date and a decrease in the principal amount of such Global Note
equal to the principal amount of the beneficial interest to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Certificated Notes of like tenor and terms and in the same aggregate
principal amount, registered in the name of the transferee.
(c) Transfers Among Global Notes. In connection with any transfer of a
beneficial interest in a Global Note to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note, the Trustee shall
reflect on its books and records and by endorsement on the grid attached to such
original Global Note the date and a decrease in the principal amount of such
first Global Note equal to the principal amount of the beneficial interest to be
so transferred, and shall also reflect on its books and records and on the grid
attached to such second Global Note the date and an increase in the principal
amount of such Global Note equal to the principal amount of the beneficial
interest to be transferred; provided that any transfer of a beneficial interest
in a Global Note which is a Restricted Note to a Person who will take delivery
thereof in the form of a beneficial interest in a Global Note which is not a
Restricted Note shall be effected only pursuant to the Exchange Offer or as
otherwise permitted by this Fourth Supplemental Indenture.
8
<PAGE>
(d) Transfers of Certificated Notes for Global Notes. In connection
with any transfer of a Certificated Note to a Person who will take delivery
thereof in the form of a beneficial interest in a Global Note, the Trustee shall
reflect on its books and records and on the grid attached to such Global Note
the date and an increase in the principal amount of such Global Note equal to
the principal amount of the Certificated Note to be transferred, the Trustee
shall cancel such Certificated Note and, if the entire principal amount of such
Certificated Note is not being transferred, the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Certificated Notes equal in
principal amount to the principal amount not being transferred, registered in
the name of the transferor.
(e) Exchange of all Global Notes for Certificated Notes.
Notwithstanding the foregoing provisions of this Section 502, in the event that
Global Notes are exchangeable for Certificated Notes as provided in the last
paragraph of Section 305 of the Original Indenture (such paragraph having been
added by Section 106(b) of the First Supplemental Indenture), the Global Notes
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Notes an equal aggregate principal amount of Certificated
Notes, registered in the names provided by the Depositary.
Section 503. Transfer Restrictions.
(a) Transfers of Restricted Certificated Notes to QIBs. The following
provisions shall apply with respect to any proposed transfer of a Certificated
Note which is a Restricted Note to a QIB:
(i) The Registrar shall register the transfer if (x) the
transferor has executed the transfer certificate attached to such
Certificated Note or another transfer certificate substantially in the
form of Exhibit C hereto (each, a "Transfer Certificate") and has
checked the box on such Transfer Certificate stating, or has otherwise
advised the Company and the Trustee in writing, that such transfer is
being made in compliance with the provisions of Rule 144A, (y) the
proposed transferee has executed the certification on a Transfer
Certificate stating, or has otherwise advised the Company and the
Trustee in writing, that it is purchasing the Note for its own account
or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB and is aware that
the sale to it is being made in reliance on Rule 144A, and (z) such
Transfer Certificates have been delivered to the Trustee; and
(ii) unless all of the Global Notes have been exchanged for
Certificated Notes as provided in the last paragraph of Section 305 of
the Original Indenture (such paragraph having been added by Section
106(b) of the First Supplemental Indenture), the transferee shall be
required to take delivery of the Certificated Note being so transferred
in the form of a beneficial interest in a Global Note which bears a
Securities Act Legend and, upon receipt by the Trustee of instructions
given in accordance with the Depositary's and the Trustee's procedures,
the Trustee shall effect such transfer as provided in Section 502(d)
hereof.
(b) Transfers of Restricted Certificated Notes to Non-QIB Institutional
Accredited Investors. The following provisions shall apply with respect to any
proposed transfer of a Certificated Note which is a Restricted Note to an
Institutional Accredited Investor which is not a QIB:
(i) The Registrar shall register the transfer if (x) the
proposed transferee has delivered to the Trustee a certificate
substantially in the form of Exhibit B hereto signed by the proposed
transferee and (y) the Company and the Trustee shall have received any
other documents which they may have required pursuant to Section 503(e)
below; and
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(ii) The Company shall execute and the Trustee shall
authenticate and deliver one or more new Certificated Notes, each
bearing the Securities Act Legend, in an aggregate principal amount
equal to the principal amount of the Certificated Note being
transferred and registered in the name of the transferee, and the
Trustee shall cancel the Certificated Note being transferred and, if
the entire principal amount thereof is not being transferred, the
Company shall execute and the Trustee shall authenticate and deliver
one or more new Certificated Notes, each of which shall bear the
Securities Act Legend, equal in principal amount to the principal
amount not being transferred and registered in the name of the
transferor.
(c) Other Transfers of Restricted Certificated Notes. In the case of
any proposed registration of transfer or exchange of a Certificated Note which
is a Restricted Note and which transfer or exchange is not expressly covered in
Section 503(a) or (b) above, the Registrar and the Trustee shall register the
transfer or shall effect such exchange, as the case may be, if (x) the
transferor has executed a Transfer Certificate and checked an appropriate box on
such Transfer Certificate and delivered such Transfer Certificate to the
Trustee, and (y) if applicable, the Company and the Trustee shall have received
any other documents which they may have required pursuant to Section 503(e).
(d) Transfers of Beneficial Interests in Global Notes. Beneficial
interests in Global Notes may be transferred to Persons who will take delivery
thereof in the form of beneficial interests in the same or other Global Notes,
and may be exchanged for interests in other Global Notes, in accordance with the
rules and procedures of the Depository; provided that, except as otherwise
provided pursuant to this Fourth Supplemental Indenture, a beneficial interest
in a Global Note which is a Restricted Note may only be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in a Global Note
which bears the Securities Act Legend and a beneficial interest in a Global Note
which is a Restricted Note may only be exchanged for an interest in a Global
Note which bears the Securities Act Legend.
(e) Provisions Applicable to All Transfers of Restricted Notes. In the
case of any offer, sale or transfer of a Restricted Note to an Institutional
Accredited Investor which is not a QIB or pursuant to clause (e) of the
Securities Act Legend, the Company and the Trustee shall have the right, prior
to such offer, sale or transfer, to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to each of them to
confirm that such offer, sale or transfer is being made in a transaction which
is exempt from, or not subject to, the registration requirement of the
Securities Act, it being understood that no such opinions, certifications or
other information shall be required in connection with the offer, sale or
transfer of any Note pursuant to an effective Registration Statement, to a QIB
pursuant to Rule 144A or to the Company.
(f) Other Transfers. In the case of any transfer or exchange of a
Restricted Note the procedures and requirements for which are not addressed in
this Section 503, such transfer or exchange will be subject to such procedures
and requirements as may be reasonably prescribed by the Company from time to
time and which shall be consistent with the procedures and requirements set
forth in this Section 503.
(g) Exceptions to Transfer Restrictions. The restrictions on transfer
and other provisions set forth in this Section 503 and in the Securities Act
Legend shall not be applicable with respect to any Note following the Resale
Restriction Termination Date for such Note, and also shall not be applicable in
the case of the exchange of Notes for Exchange Notes pursuant to the Exchange
Offer or for Private Exchange Notes pursuant to the Registration Rights
Agreement.
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<PAGE>
Section 504. General. By its acceptance of any Note bearing the
Securities Act Legend, each Holder of such a Note acknowledges the restrictions
on transfer of such Note set forth in the Indenture and in such legend and
agrees that it will transfer such Note only as provided in the Indenture.
The Registrar shall retain, in accordance with its customary
procedures, copies of all letters, notices and other written communications
received pursuant to Section 503. The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Registrar.
ARTICLE SIX
SUNDRY PROVISIONS
Section 601. Ratification. This Fourth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein provided.
Except as expressly amended hereby, the Original Indenture is in all respects
ratified and confirmed and all the terms, conditions and provision thereof shall
remain in full force and effect.
Section 602. Counterparts. This Fourth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, and all of such counterparts shall together constitute
one and the same instrument.
Section 603. The Trustee. The Trustee makes no representation as to the
validity or sufficiency of this Fourth Supplemental Indenture. The recitals
contained herein shall be taken as the statements of the Company and the Trustee
assumes no responsibility for their correctness.
Section 604. Governing Law. This instrument shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of the State of New
York.
[SIGNATURE PAGE FOLLOWS]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
SUPERVALU INC.
[SEAL] By ______________________________
Name:
Title:
Attest:
By ______________________________
Name:
Title:
BANKERS TRUST COMPANY
[SEAL] By ______________________________
Name:
Title:
Attest:
By ______________________________
Name:
Title:
12
<PAGE>
STATE OF MINNESOTA )
: ss.:
COUNTY OF HENNEPIN )
On the _____ of __________, 1999, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he or she is ___________________ of SUPERVALU INC., one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
___________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____ of __________, 1999, before me personally came
___________________, to me known, who being by me duly sworn, did depose and say
that he or she is ___________________ of Bankers Trust Company, one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
___________________________
Notary Public
13
<PAGE>
EXHIBIT A
---------
[FORM OF NOTE]
[Each Global Note shall bear a legend substantially in the form set forth in
this paragraph and substantially in the form set forth in the next succeeding
paragraph (collectively, the "Global Securities Legend"): Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment hereon is made to Cede & Co.
or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
[This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of the Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.]
[Unless and until a Note is exchanged for an Exchange Note or sold pursuant to
an effective Registration Statement pursuant to the Registration Rights
Agreement, the Global Notes and Certificated Notes shall bear a legend
substantially to the effect set forth below in this paragraph (the "Securities
Act Legend"), subject to removal of such legend as provided in Section 501 of
the Fourth Supplemental Indenture: THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A") UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE LAST DATE ON WHICH
SUPERVALU INC. OR ANY "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF SUPERVALU INC. WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS
NOTE) OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO SUPERVALU INC., (B)
PURSUANT TO A
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<PAGE>
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES OF ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS
BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT SUPERVALU INC. AND THE TRUSTEE SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, BUT ONLY IF THIS NOTE IS NOT A GLOBAL SECURITY (AS DEFINED IN
THE INDENTURE REFERRED TO HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO SUPERVALU INC. AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
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<PAGE>
SUPERVALU INC.
7 7/8% NOTES DUE 2009
CUSIP No. _______
No. _______
[For inclusion in Certificated Notes-- Principal Amount $__________]
SUPERVALU, INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to ________________, or registered assigns, the
principal sum [For inclusion in Certificated Notes-- of ____ Dollars
($________)] [For inclusion in Global Notes--indicated on Schedule A hereto] on
August 1, 2009 and to pay interest thereon from August 4, 1999, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on February 1 and August 1 in each year,
commencing on February 1, 2000, at the rate of 7 7/8% per annum, until the
principal hereof is paid or made available for payment and (to the extent that
the payment of such interest shall be legally enforceable) at the same rate per
annum on any overdue principal and premium, if any, and on any overdue
installment of interest [To be deleted from Exchange Notes-- ; provided that the
interest rate on this Security shall be subject to increase under the
circumstances provided below]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be January 15 or July 15 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture. Payment of the principal of (and
premium, if any) and interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company, payment of interest
may be made by United States dollar check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
wire transfer to an account maintained by the payee with a bank located in the
United States.
Payments of interest hereon with respect to any Interest Payment Date
will include interest accrued to but excluding such Interest Payment Date.
Interest on this Security shall be computed on the basis of a 360-day year of
twelve 30-day months.
[For inclusion in Global Notes--- This Security is a Global Security
within the meaning of the Indenture and is registered in the name of the
Depositary for this series of Securities or a nominee of the Depositary. Subject
to the terms of the Indenture, beneficial interests in this Security shall be
held through the book-entry facilities of the Depositary, and such beneficial
interests shall be held in minimum
A-3
<PAGE>
denominations of [For inclusion in Global Notes other than Exchange Notes--
$100,000 and integral multiples of $1,000 in excess thereof] [For inclusion in
global Exchange Notes-- $1,000 and integral multiples thereof]. As long as this
Security is registered in the name of a Depositary or its nominee, the Company
will make, or will cause the Trustee to make, payments of principal of and
premium, if any, and interest on this Security by wire transfer of immediately
available funds to such Depositary or its nominee. Notwithstanding the above,
the final payment on this Security will be made only upon presentation and
surrender of this Security at an office or agency maintained by the Company for
that purpose in any Place of Payment for the Securities of this series.]
[Delete for Exchange Notes-- The Holder of this Security is entitled to
the benefits of a Registration Rights Agreement (as such term is defined in the
Fourth Supplemental Indenture referred to below). In the event that
(i) the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 135th day following the Closing
Date, or
(ii) the Exchange Offer Registration Statement is not declared
effective by the Commission on or prior to the 180th day following the
Closing Date, or
(iii) the Exchange Offer is not consummated on or prior to the
45th day following the effective date of the Exchange Offer
Registration Statement, or
(iv) if required pursuant to the Registration Rights
Agreement, a Shelf Registration Statement is not filed with the
Commission on or prior to (A) the 180th day following the Closing Date
or (B) the 60th day after the filing obligation arises, whichever is
later, or
(v) if required, a Shelf Registration Statement is not
declared effective on or prior to the 225th day following the Closing
Date (or, if a Shelf Registration Statement is required to be filed
upon the request of any Initial Purchaser, within 30 days after such
request), or
(vi) a Shelf Registration Statement is declared effective by
the Commission but such Shelf Registration Statement ceases to be
effective or such Shelf Registration Statement or the Prospectus
included therein ceases to be usable in connection with resales of
Registrable Securities for any reason and either (A) the aggregate
number of days in any consecutive 365-day period for which the Shelf
Registration Statement or such Prospectus shall not be effective or
usable exceeds 90 days, (B) the Shelf Registration Statement or such
Prospectus shall not be effective or usable for more than two periods
(regardless of duration) in any consecutive 365-day period or (C) the
Shelf Registration Statement or such Prospectus shall not be effective
or usable for a period of more than 45 consecutive days, or
(vii) the Exchange Offer Registration Statement is declared
effective by the Commission but, if the Exchange Offer Registration
Statement is being used in connection with the resale of Exchange Notes
as contemplated by Section 3(f)(B) of the Registration Rights
Agreement, the Exchange Offer Registration Statement ceases to be
effective or the Exchange Offer Registration Statement or the
Prospectus included therein ceases to be usable in connection with
resales of Exchange Securities for any reason during the 180-day period
referred to in Section 3(f)(B) of the Registration Rights Agreement (as
such period may be extended pursuant to the last paragraph of Section 3
of the Registration Rights Agreement) and either (A) the aggregate
number of days in any consecutive 365-day period for which the Exchange
Offer Registration Statement or such Prospectus shall not be effective
or usable exceeds 90 days, (B) the Exchange Offer Registration
Statement or such Prospectus shall not be effective or usable for more
than two periods
A-4
<PAGE>
(regardless of duration) in any consecutive 365-day period or (C) the
Exchange Offer Registration Statement or the Prospectus shall not be
effective or usable for a period of more than 45 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by this Security, so long as this Security is a Registrable Security, shall be
increased ("Additional Interest") by one-quarter of one percent (0.25%) per
annum immediately following such 135-day period in the case of clause (i) above,
immediately following such 180-day period in the case of clause (ii) above,
immediately following such 45-day period in the case of clause (iii) above,
immediately following any such 180-day period or 60-day period, whichever ends
later, in the case of clause (iv) above, immediately following any such 225-day
period or 30-day period, whichever ends first, in the case of clause (v) above,
immediately following the 90th day in any consecutive 365-day period, as of the
first day of the third period in any consecutive 365-day period or immediately
following the 45th consecutive day, whichever occurs first, that a Shelf
Registration Statement shall not be effective or a Shelf Registration Statement
or the Prospectus included therein shall not be usable as contemplated by clause
(vi) above, or immediately following the 90th day in any consecutive 365-day
period, as of the first day of the third period in any consecutive 365-day
period or immediately following the 45th consecutive day, whichever occurs
first, that the Exchange Offer Registration Statement shall not be effective or
the Exchange Offer Registration Statement or the Prospectus included therein
shall not be usable as contemplated by clause (vii) above, which rate will be
increased by an additional one-quarter of one percent (0.25%) per annum
immediately following each 90-day period that any Additional Interest continues
to accrue under any circumstances; provided that the aggregate increase in such
annual interest rate may in no event exceed one-half of one percent (0.50%) per
annum. Upon the filing of the Exchange Offer Registration Statement after the
135-day period described in clause (i) above, the effectiveness of the Exchange
Offer Registration Statement after the 180-day period described in clause (ii)
above, the consummation of the Exchange Offer after the 45-day period described
in clause (iii) above, the filing of the Shelf Registration Statement after the
180-day period or 60-day period day, as the case may be, described in clause
(iv) above, the effectiveness of a Shelf Registration Statement after the
225-day period or 30-day period, as the case may be, described in clause (v)
above, or the Shelf Registration Statement once again being effective or the
Shelf Registration Statement and the Prospectus included therein becoming usable
in connection with resales of Registrable Securities, as the case may be, in the
case of clause (vi) above, or the Exchange Offer Registration Statement once
again becoming effective or the Exchange Offer Registration Statement and the
Prospectus included therein becoming usable in connection with resales of
Exchange Securities, as the case may be, in the case of clause (vii) thereof,
the interest rate borne by this Security from the date of such filing,
effectiveness, consummation or resumption of effectiveness or usability, as the
case may be, shall be reduced to the original interest rate so long as no other
Registration Default shall have occurred and shall be continuing at such time
and the Company is otherwise in compliance with this paragraph; provided,
however, that, if after any such reduction in interest rate, one or more
Registration Defaults shall again occur, the interest rate shall again be
increased pursuant to the foregoing provisions. Anything herein to the contrary
notwithstanding, any Holder who was, at the time the Exchange Offer was pending
and consummated, eligible to exchange, and did not validly tender, its
Securities for Exchange Notes in the Exchange Offer will not be entitled to
receive any Additional Interest. For purposes of clarity, the Company hereby
acknowledges and agrees that, under current interpretations of the Commission,
Initial Purchasers holding unsold allotments of Securities acquired from the
Company are not eligible to participate in the Exchange Offer.]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1987 (as amended by a First
Supplemental Indenture dated as of August 1, 1990, a Second Supplemental
Indenture dated as of October 1, 1992, a Third Supplemental Indenture dated as
of
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September 1, 1995 and a Fourth Supplemental Indenture (the "Fourth Supplemental
Indenture") dated as of August 4, 1999 (as so amended, the "Indenture")), each
between the Company and Bankers Trust Company, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, initially limited in aggregate principal amount to
$350,000,000; provided that the aggregate principal amount of the Securities of
this series which may be Outstanding may be increased by the Company upon the
terms and subject to the conditions set forth in the Fourth Supplemental
Indenture. The Securities of this series are issuable only in registered form,
without coupons, in denominations of [For inclusion in Notes other than Exchange
Notes--$100,000 and integral multiples of $1,000 in excess thereof] [For
inclusion in Exchange Notes--$1,000 and integral multiples of $1,000]. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
The Company shall have the right to redeem the Securities of this
series, in whole at any time or from time to time in part, at the option of the
Company, at a Redemption Price equal to the greater of (1) 100% of the principal
amount of the Securities of this series to be redeemed and (2) the sum of the
present values of the Remaining Scheduled Payments on the Securities of this
series to be redeemed discounted to the applicable Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at a rate per annum equal to the sum of the Treasury Rate plus 25 basis points
plus, in either case, accrued interest on the principal amount being redeemed to
such Redemption Date; provided, however, that installments of interest on
Securities of this series whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of those Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Dates according to their terms and the provisions of the
Indenture.
"Treasury Rate" means, for any Redemption Date with respect to the
Securities of this series, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption Date
for the Securities of this series, the United States Treasury security, selected
by a Reference Treasury Dealer appointed by the Company, as having a maturity
comparable to the remaining term of the Securities of this series to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of those Securities.
"Comparable Treasury Price" means, for any Redemption Date with respect
to the Securities of this series, (1) the average of the four Reference Treasury
Dealer Quotations for such Redemption Date after excluding the highest and
lowest of those Reference Treasury Dealer Quotations or (2) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such quotations actually obtained by the Trustee.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney Inc. and U.S.
Bancorp Piper Jaffray Inc. and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary
A-6
<PAGE>
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, for each Reference
Treasury Dealer and any Redemption Date for the Securities of this series, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by that Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third business day preceding
that Redemption Date. As used in this paragraph, the term "business day" means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in The City of New York are authorized or obligated by law
or executive order to close.
"Remaining Scheduled Payments" means, for each Security of this series
to be redeemed, the remaining scheduled payments of principal of and interest on
that Security that would be due after the related Redemption Date but for that
redemption; provided that if that Redemption Date is not an Interest Payment
Date with respect to that Security, the amount of the next succeeding scheduled
interest payment on that Security will be reduced by the amount of interest
accrued on that Security to that Redemption Date.
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days;
A-7
<PAGE>
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of (or
premium, if any) or interest on this Security on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below, directly or through an Authenticating Agent, by
manual signature of an authorized signatory, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
[SIGNATURE PAGE FOLLOWS]
A-8
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SUPERVALU INC.
By /s/
---------------------------
[Seal] Name:
Title:
Attest:
/s/
- ---------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY
as Trustee
By /s/
---------------------------
Authorized Signature
A-9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription above, shall
be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
----------------- --------------
(Cust) (Minor)
under the Uniform Gifts to Minors Act
--------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
--------------------------------------
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned registered holder(s) hereby sell(s),
assign(s) and transfer(s) unto __________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________
_________________________________________
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address Including
Postal Zip Code of Assignee)
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, and hereby irrevocably
constitute(s) and appoint(s)
- --------------------------------------------------------------------------------
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated: _________________________________________
Signature Guaranteed: ___________________________ ___________________________
A-10
<PAGE>
NOTICE: The signature(s) to this assignment must correspond with the
name(s) as written upon the within instrument in every particular, without
alteration or enlargement or any change whatever. The signature(s) must be
guaranteed by an eligible guarantor institution with membership in an approved
signature guarantee "medallion" program pursuant to Commission Rule 17Ad-15.
A-11
<PAGE>
[For inclusion in Restricted Notes]
TRANSFER CERTIFICATE
Re: SUPERVALU INC.
7 7/8% Notes due 2009 (the "Notes")
-----------------------------------
Reference is hereby made to the Indenture dated as of July 1, 1987, as
supplemented (the "Indenture"), between Bankers Trust Company, as trustee (the
"Trustee"), and SUPERVALU INC. (the "Company"). Capitalized terms used but not
defined in this Certificate shall have the meanings given to such terms in the
Indenture.
This Certificate relates to $__________ principal amount of Notes (the
"Specified Securities") represented by a Certificated Note registered in the
name of the undersigned (the "Transferor"). The Transferor has requested a
transfer of the Specified Securities to a Person who will take delivery thereof
in the form of a Certificated Note or to a QIB (as defined below) who will take
delivery thereof in the form of a beneficial interest in a Global Security.
In connection with such request, the Transferor does hereby certify
that such transfer is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") (as
indicated by the applicable box checked below), or the transfer does not require
registration under the Securities Act because (as indicated by the applicable
box checked below):
(a)0 The Specified Securities are being transferred pursuant to an
effective registration statement under the Securities Act.
(b)0 The Specified Securities are being acquired for the
Transferor's own account, without transfer.
(c)0 The Specified Securities are being transferred to the Company.
(d)0 The Specified Securities are being transferred in compliance
with Rule 144A ("Rule 144A") under the Securities Act to a
person the Transferor reasonably believes is a "qualified
institutional buyer" (as defined in Rule 144A) (a "QIB") that
is purchasing the Specified Securities for its own account or
for the account of another QIB, in each case to whom notice
has been given that the transfer is being made in reliance on
Rule 144A.
(e)0 The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its own
account or for the account of one or more other Institutional
Accredited Investors over which it exercises sole investment
discretion and that, prior to such transfer, furnishes to the
Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the
Trustee).
(f)0 The Specified Securities are being transferred pursuant to
another available exemption from the registration requirements
of the Securities Act.
A-12
<PAGE>
This Certificate and the statements contained herein are made for the
benefit of the Trustee, the Company and the initial purchasers, in the initial
offering of the Notes.
____________________________________
(Insert Name of Transferor)
By: ________________________________
Date: _____________________
TO BE COMPLETED BY TRANSFEREE
IF (d) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a QIB
(as defined above) and is aware that the Specified Securities (as defined above)
are being transferred in reliance on Rule 144A (as defined above), (ii) the
undersigned is acquiring the Specified Securities for its own account or for the
account of one or more other QIBs over which it exercises sole investment
discretion (in which latter case the undersigned has given notice to each such
account that the Specified Securities are being transferred in reliance on Rule
144A) and (iii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers. The undersigned transferee
acknowledges and agrees that the Specified Securities have not been registered
under the Securities Act (as defined above), and may not be transferred except
in accordance with the resale and other transfer restrictions set forth in the
legend on the face thereof.
Dated: _________________________ ____________________________________
(Insert Name of Transferee)
By: ________________________________
Executive Officer
A-13
<PAGE>
[For inclusion in Global Notes]
SCHEDULE A
The initial principal amount of this Global Security is $____________.
The following increases or decreases in the principal amount of this Global
Security have been made:
<TABLE>
<CAPTION>
================== ====================== ======================= ====================== ======================
Amount of increase Principal amount of
in principal amount Amount of decrease in this Global Security Signature of
of this Global principal amount of following such authorized signatory
Date made Security this Global Security decrease or increase of Trustee
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
- ------------------ ---------------------- ----------------------- ---------------------- ----------------------
</TABLE>
A-14
<PAGE>
EXHIBIT B
---------
Form of Certificate to Be
Delivered in Connection with
Transfers of Restricted Certificated Notes
to Non-QIB Accredited Investors
-------------------------------
----------, --
SUPERVALU INC.
c/o Bankers Trust Company
Four Albany Street
New York, New York 10006
Re: SUPERVALU INC. (the "Company")
7 7/8% Notes due 2009 (the "Notes")
-----------------------------------
Dear Sirs:
In connection with our proposed purchase of $_____________ aggregate
principal amount of the 7 7/8% Notes due 2009 (the "Notes") of SUPERVALU INC., a
Delaware corporation ("SUPERVALU"), we confirm that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act of 1933, as amended (the "Securities Act")) purchasing for our own
account or for the account of such an institutional "accredited
investor," and we are acquiring the Notes for investment purposes and
not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or other applicable
securities law and we have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which
we are acting are each able to bear the economic risk of our or its
investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act or any other applicable securities
law and may not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities Act or
any other applicable securities law, or pursuant to an exemption
therefrom, or in a transaction not subject thereto, and in each case in
compliance with the conditions for transfer set forth below. We agree
on our own behalf and on behalf of any investor account for which we
are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to (x) the date which is two years (or such shorter period of
time as permitted by Rule 144(k) under the Securities Act) after the
later of the date of original issue of the Notes and the last date on
which SUPERVALU or any "affiliate" (as defined in Rule 144 under the
Securities Act) of SUPERVALU was the owner of such Notes (or any
predecessor thereto) or (y) such later date, if any, as may be required
by applicable law (the "Resale Restriction Termination Date") only (a)
to SUPERVALU, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) for so long as the
Notes are eligible for resale pursuant to Rule 144A under the
Securities Act, to a person we reasonably believe is a "Qualified
Institutional Buyer" within the meaning of Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB, in each case
to whom
<PAGE>
notice is given that the transfer is being made in reliance on Rule
144A, (d) to an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for
the account of such an institutional "accredited investor" for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act or
(e) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing
cases to any requirement of law that the disposition of our property or
the property of such investor account or accounts be at all times
within our or their control and to compliance with any applicable state
or other securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Notes is proposed to be made pursuant
to clause (d) above prior to the Resale Restriction Termination Date,
the transferor shall deliver to the trustee under the Indenture
pursuant to which the Notes are issued (the "Trustee") a letter from
the transferee substantially in the form of this letter, which shall
provide, among other things, that the transferee is an institutional
"accredited investor" as defined in paragraph 1 of this letter and that
it is acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. We acknowledge that
SUPERVALU and the Trustee reserve the right prior to any offer, sale or
other transfer of the Notes pursuant to clauses (d) or (e) above prior
to the Resale Restriction Termination Date to require the delivery of
an opinion of counsel, certifications and/or other information
satisfactory to SUPERVALU and the Trustee.
3. We are acquiring the Notes purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion.
4. You and the initial purchasers of the Notes are entitled to
rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative
or legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
(Name of Purchaser)
By:__________________________
Date:________________________
Upon transfer the Notes would be registered in the name of the new owner as
follows:
Taxpayer ID
Name Address Number
---- ------- ------
B-2
<PAGE>
EXHIBIT C
---------
FORM OF TRANSFER CERTIFICATE
Re: SUPERVALU INC.
7 7/8% Notes due 2009 (the "Notes")
-----------------------------------
Reference is hereby made to the Indenture dated as of July 1, 1987, as
supplemented (the "Indenture"), between Bankers Trust Company, as trustee (the
"Trustee"), and SUPERVALU INC. (the "Company"). Capitalized terms used but not
defined in this Certificate shall have the meanings given to such terms in the
Indenture.
This Certificate relates to $__________ principal amount of Notes (the
"Specified Securities") represented by a Certificated Note registered in the
name of the undersigned (the "Transferor"). The Transferor has requested a
transfer of the Specified Securities to a Person who will take delivery thereof
in the form of a Certificated Note or to a QIB (as defined below) who will take
delivery thereof in the form of a beneficial interest in a Global Security.
In connection with such request, the Transferor does hereby certify
that such transfer is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") (as
indicated by the applicable box checked below), or the transfer does not require
registration under the Securities Act because (as indicated by the applicable
box checked below):
(a)0 The Specified Securities are being transferred pursuant to an
effective registration statement under the Securities Act.
(b)0 The Specified Securities are being acquired for the
Transferor's own account, without transfer.
(c)0 The Specified Securities are being transferred to the Company.
(d)0 The Specified Securities are being transferred in compliance
with Rule 144A ("Rule 144A") under the Securities Act to a
person the Transferor reasonably believes is a "qualified
institutional buyer" (as defined in Rule 144A) (a "QIB") that
is purchasing the Specified Securities for its own account or
for the account of another QIB, in each case to whom notice
has been given that the transfer is being made in reliance on
Rule 144A.
(e)0 The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its own
account or for the account of one or more other Institutional
Accredited Investors over which it exercises sole investment
discretion and that, prior to such transfer, furnishes to the
Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the
Trustee).
(f)0 The Specified Securities are being transferred pursuant to
another available exemption from the registration requirements
of the Securities Act.
<PAGE>
This Certificate and the statements contained herein are made for the
benefit of the Trustee, the Company and the initial purchasers, if any, in the
initial offering of the Notes.
__________________________________
(Insert Name of Transferor)
By: ______________________________
Date: _____________________
TO BE COMPLETED BY TRANSFEREE
IF (d) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a QIB
(as defined above) and is aware that the Specified Securities (as defined above)
are being transferred in reliance on Rule 144A (as defined above), (ii) the
undersigned is acquiring the Specified Securities for its own account or for the
account of one or more other QIBs over which it exercises sole investment
discretion (in which latter case the undersigned has given notice to each such
account that the Specified Securities are being transferred in reliance on Rule
144A) and (iii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers. The undersigned transferee
acknowledges and agrees that the Specified Securities have not been registered
under the Securities Act (as defined above), and may not be transferred except
in accordance with the resale and other transfer restrictions set forth in the
legend on the face thereof.
Dated: _________________________ __________________________________
(Insert Name of Transferee)
By:_______________________________
Executive Officer
C-2
<PAGE>
EXHIBIT 4.3
================================================================================
SUPERVALU INC.,
Issuer,
AND
BANKERS TRUST COMPANY,
Trustee
-----------------------------
FIFTH SUPPLEMENTAL INDENTURE
TO
Indenture dated as of July 1, 1987,
as amended by the First Supplemental Indenture dated as of August 1, 1990,
the Second Supplemental Indenture dated as of October 1, 1992,
the Third Supplemental Indenture dated as of September 1, 1995
and the Fourth Supplemental Indenture dated as of August 4, 1999.
-----------------------------
Dated as of September 17, 1999
================================================================================
<PAGE>
FIFTH SUPPLEMENTAL INDENTURE, dated as of September 17, 1999 between
SUPERVALU INC. (formerly Super Valu Stores, Inc.), a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 11840 Valley View Road, Eden Prairie,
Minnesota 55344, and BANKERS TRUST COMPANY, a banking corporation duly organized
and existing under the laws of the State of New York, as Trustee (herein called
the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee that
certain Indenture, dated as of July 1, 1987, as amended by that certain First
Supplemental Indenture (the "First Supplemental Indenture"), dated as of August
1, 1990, that certain Second Supplemental Indenture (the "Second Supplemental
Indenture"), dated as of October 1, 1992, that certain Third Supplemental
Indenture, dated as of September 1, 1995 (the "Third Supplemental Indenture"),
and that certain Fourth Supplemental Indenture, dated as of August 4, 1999 (the
"Fourth Supplemental Indenture") (said Indenture, as amended by such prior
supplemental indentures, being herein called the "Original Indenture", and the
Original Indenture, as amended by this Fifth Supplemental Indenture, being
herein called the "Indenture"), pursuant to which one or more series of
unsecured debentures, notes or other evidences of indebtedness of the Company
(herein called the "Securities") may be issued from time to time.
Section 901(7) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 of the Indenture.
Pursuant to the terms of Section 901(7) of the Indenture, the Company
desires to provide for the establishment of the form and terms of a new series
of its Securities to be known as its 7 5/8% Notes due 2004 (herein called the
"Notes").
Section 9.01(9) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of the Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Fifth Supplemental Indenture is authorized or
permitted by the Indenture and (ii) a copy of the resolutions of its Board of
Directors certified by its Secretary, pursuant to which this Fifth Supplemental
Indenture has been authorized.
All things necessary to make this Fifth Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and supplement
to the Indenture have been done.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, and for other consideration the adequacy and sufficiency of
which are hereby acknowledged, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
<PAGE>
ARTICLE ONE
DEFINED TERMS
Section 101. Defined Terms. Except as otherwise expressly provided in this
Fifth Supplemental Indenture or in the form of Note attached as Exhibit A hereto
or otherwise clearly required by the context hereof or thereof, all capitalized
terms used and not defined in this Fifth Supplemental Indenture that are defined
in the Original Indenture shall have the meanings assigned to them in the
Original Indenture. For all purposes of this Fifth Supplemental Indenture:
"Additional Interest" has the meaning set forth in Exhibit A hereto.
"Certificated Note" has the meaning set forth in Section 204 hereof.
"Closing Date" means September 17, 1999.
"Commission", as used in this Fifth Supplemental Indenture and the
certificates evidencing the Notes (other than the certificates evidencing the
Exchange Notes), means the Securities and Exchange Commission or any successor
thereto. The term "Commission", as used elsewhere in the Indenture, except to
the extent otherwise expressly provided in the Fourth Supplemental Indenture
with respect to the Prior Notes and unless and to the extent otherwise expressly
provided pursuant to Section 301 of the Original Indenture with respect to any
series of Securities (other than the Notes) originally issued after the date
hereof, has the meaning set forth in the Original Indenture.
"Exchange Notes" means any of the Exchange Securities (as defined in the
Registration Rights Agreement).
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Global Note" has the meaning set forth in Section 204 hereof.
"Global Securities Legend" has the meaning set forth in Exhibit A hereto.
"Initial Purchaser" means any one of the Initial Purchasers (as defined in
the Registration Rights Agreement).
"Institutional Accredited Investor" means an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Notes" means any of the Securities of the series designated in the second
paragraph of the recitals hereof and Section 201 hereof that are authenticated
and delivered under the Indenture. For all purposes of the Indenture, the term
"Notes" shall include the Notes initially issued on the Closing Date, any
Exchange Notes issued in exchange for Notes pursuant to the Exchange Offer, any
Private Exchange Notes issued in exchange for Notes pursuant to the Registration
Rights Agreement, and any other Notes issued after the Closing Date under the
Indenture. For purposes of the Indenture, all Notes (including, without
limitation, the Exchange Notes and the Private Exchange Notes) shall vote
together and otherwise constitute a single series of Securities under the
Indenture.
2
<PAGE>
"Prior Notes" means the "Notes" as defined in the Fourth Supplemental
Indenture, being the Company's 7 7/8% Notes due 2009.
"Private Exchange Notes" means any of the Private Exchange Securities (as
defined in the Registration Rights Agreement).
"Prospectus" has the meaning set forth in the Registration Rights
Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registrable Securities" has the meaning set forth in the Registration
Rights Agreement.
"Registration Default" has the meaning set forth in Exhibit A hereto.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of the Closing Date, between the Company and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney
Inc., U.S. Bancorp Piper Jaffray Inc. and the other parties thereto.
"Registration Statement" has the meaning set forth in the Registration
Rights Agreement.
"Resale Restriction Termination Date" has the meaning set forth in Exhibit
A hereto.
"Restricted Note" means any Note except for (i) an Exchange Note issued
pursuant to the Exchange Offer, (ii) a Note which has been sold or transferred
pursuant to an effective Registration Statement pursuant to the Registration
Rights Agreement, (iii) a Note from which the Securities Act Legend has been
removed in accordance with the provisions of this Fifth Supplemental Indenture,
and (iv) a Note issued upon registration of transfer of, or in exchange for,
Notes which are not Restricted Notes.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securities Act Legend" has the meaning set forth in Exhibit A hereto.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Transfer Certificate" has the meaning set forth in Section 503(a)(i)
hereof.
All references herein to Rule 144, Rule 144A or Rule 501 under the
Securities Act, and all reference to any subsections or terms defined therein,
shall in each case include all successor provisions thereto.
The parties hereto acknowledge that certain terms (such as the term Closing
Date) are defined in both the Fourth Supplemental Indenture and in this Fifth
Supplemental Indenture. The parties hereto hereby agree that, unless otherwise
expressly stated or the context otherwise requires, any term which is defined in
both the Fourth Supplemental Indenture and in this Fifth Supplemental Indenture,
when used with respect to or in the certificates evidencing the Prior Notes,
shall have the meaning set
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forth in the Fourth Supplemental Indenture and, when used with respect to or in
the certificates evidencing the Notes, shall have the meaning set forth in this
Fifth Supplemental Indenture.
ARTICLE TWO
TERMS OF THE NOTES
Section 201. Establishment of the Notes. There is hereby authorized and
established a series of Securities designated the 7 5/8% Notes due 2004, limited
in aggregate principal amount to $250,000,000 (except as provided in Section
301(2) of the Original Indenture); provided that the Company may, without the
consent of the Holders of the Outstanding Notes, "reopen" this series of
Securities so as to increase the aggregate principal amount of Notes Outstanding
in compliance with the procedures set forth in the Indenture, including Sections
301 and 303 thereof, so long (i) as any such additional Notes are issued prior
to the first date on which any Registration Statement is filed with the
Commission, (ii) any such additional Notes have the same tenor and terms
(including, without limitation, rights to receive accrued and unpaid interest)
as the Notes then Outstanding, and (iii) appropriate provision is made by the
Company so that any such additional Notes may be tendered for Exchange Notes
pursuant to the Exchange Offer and, if applicable, registered pursuant to a
Shelf Registration Statement in the same manner as the Notes originally issued
on the Closing Date.
Section 202. Terms of the Notes. The Stated Maturity on which the principal
of the Notes shall be due and payable shall be September 15, 2004.
The principal of the Notes shall bear interest at the rate of 7 5/8% per
annum (subject, in the case of Notes which are Registrable Securities, to
increase upon the occurrence of any Registration Default as provided in the form
of Note attached hereto as Exhibit A) from September 17, 1999 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable semi-annually in arrears on March 15 and September 15 (each, an
"Interest Payment Date") in each year, commencing March 15, 2000, to the Persons
in whose names the Notes (or one or more Predecessor Securities) are registered
at the close of business on the March 1 or September 1 immediately preceding
such Interest Payment Dates (each, a "Regular Record Date") regardless of
whether such Regular Record Date is a Business Day. Any overdue principal of and
premium, if any, on the Notes and any overdue installment of interest on the
Notes shall, to the extent permitted by law, bear interest at the rate of 7 5/8%
per annum (subject, in the case of Notes which are Registrable Securities, to
increase upon the occurrence of any Registration Default as provided in the form
of Note attached hereto as Exhibit A).
Promptly following any increase in the interest rate on the Registrable
Securities as the result of a Registration Default, the Company shall deliver an
Officers' Certificate to the Trustee, notifying the Trustee of such Registration
Default and setting forth the effective date of such increase in the interest
rate on the Registrable Securities and the interest rate in effect on the
Registrable Securities as a result of such Registration Default, and, in the
event of any further increase in the interest rate on the Registrable Securities
as the result of the continuance of a Registration Default, shall promptly
deliver a similar Officers' Certificate to the Trustee. Any such increase in the
interest rate on the Registrable Securities shall remain in effect until such
time as all Registration Defaults have been cured or ceased to exist and the
Company shall have delivered an Officers' Certificate to the Trustee to the
effect that (i) all Registration Defaults have been cured or have ceased to
exist and (ii) the date of such cessation or cure, whereupon the interest rate
on the Registrable Securities shall be reduced to the original interest rate
thereon effective as of the date of such cessation or cure.
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Interest on the Notes shall be calculated on the basis of a 360-day year of
twelve 30-day months.
No additional amounts will be payable on any Notes held by a Person who is
a United States Alien in respect of any tax, assessment or governmental charge
withheld or deducted.
The Borough of Manhattan, The City of New York is hereby designated as a
Place of Payment for the Notes; and the place where the principal of and
premium, if any, and interest on the Notes shall be payable, where Notes may be
surrendered for registration of transfer and exchange, and where notices and, if
other than in the manner provided in Section 105 of the Original Indenture,
demands to or upon the Company in respect of the Notes may be served, shall be
the office or agency maintained by the Company for that purpose in the Borough
of Manhattan, The City of New York, which initially shall be the office of the
Trustee located at Four Albany Street, New York, New York 10006, Attention:
Corporate Trust Services.
The Notes are subject to redemption at the option of the Company as
provided in the form of Note attached hereto as Exhibit A and in the Indenture.
The Notes shall not have the benefit of a sinking fund.
The Notes shall be subject to defeasance and covenant defeasance at the
option of the Company as provided in Sections 403 and 1011 of the Original
Indenture; provided that, without limitation to the provisions of Sections 403
and 1011 of the Original Indenture, the provisions of Sections 1013 and 1014 of
the Indenture (which were added to the Indenture pursuant to the Fourth
Supplemental Indenture and which are applicable to the Notes pursuant to Section
302 of this Fifth Supplemental Indenture) and Article V of this Fifth
Supplemental Indenture shall survive any such defeasance or covenant defeasance
and remain in full force and effect.
The Notes shall have such other terms and provisions as are set forth in
the form of Note attached hereto as Exhibit A (all of which incorporated by
reference in and made a part of this Fifth Supplemental Indenture as if set
forth in full at this place).
Section 203. Denominations. The Notes shall be issued in denominations of
$100,000 and integral multiples of $1,000 in excess thereof; provided, however,
that Exchange Notes shall be issued in denominations of $1,000 and integral
multiples thereof.
Section 204. Form. The Notes (including, without limitation, the Exchange
Notes) shall be in substantially the form set forth in Exhibit A hereto, with
such changes therein as may be authorized by any officer of the Company
executing the Notes by manual or facsimile signature, such approval to be
conclusively evidenced by the execution thereof by such officer.
The Notes shall be issued as Registered Securities without coupons.
Notes initially offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes ("Global Notes") and
the Exchange Notes shall be issued initially in the form of one or more
permanent Global Notes. The initial Depositary for the Global Notes shall be The
Depository Trust Company. The Global Notes shall be registered in the name of
the Depositary or a nominee of the Depositary and deposited with the Trustee, as
custodian for the Depositary.
Notes initially offered and sold to Institutional Accredited Investors that
are not QIBs shall be issued initially in the form of certificated Notes (the
"Certificated Notes").
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Anything herein to the contrary notwithstanding, if any Private Exchange
Notes are issued, then such Private Exchange Notes shall be issued in
denominations of $100,000 and integral multiples of $1,000 in excess thereof,
shall provide for the payment of Additional Interest upon a Registration
Default, and shall bear the Securities Act Legend until such time as any such
Private Exchange Note shall cease to be a Restricted Note, in which case the
Company will, at the request of the Holder, issue in exchange therefor or upon
transfer thereof, an Exchange Note. Anything herein to the contrary
notwithstanding, the Private Exchange Notes shall be issued as Global Notes or,
if requested by any Holder thereof, as Certificated Notes.
ARTICLE THREE
APPLICATION OF AMENDMENTS TO INDENTURE
Section 301. Amended Section 801 of the Indenture. The amendment to Section
801 of the Indenture effected by Section 302 of the Fourth Supplemental
Indenture shall be applicable to the Notes, it being understood that the
registration rights agreement referred to in clause (ii) of such amended Section
801 shall include the Registration Rights Agreement.
Section 302. Amended Article Ten of the Indenture. Sections 1013 and 1014
of the Indenture (such Sections having been added by the Fourth Supplemental
Indenture) shall be applicable to the Notes.
ARTICLE FOUR
ORIGINAL ISSUE OF NOTES
Section 401. Notes. Notes in the aggregate principal amount of $250,000,000
may be executed by the Company and delivered to the Trustee for authentication
and the Trustee shall thereupon authenticate and, on the Closing Date, deliver
said Notes upon a Company Order without any further action by the Company.
Section 402. Exchange Notes. Exchange Notes and Private Exchange Notes may
from time to time be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Exchange Notes or Private Exchange Notes, as the case may be, upon cancellation
of an equal amount of Notes tendered for exchange pursuant to the Exchange Offer
(in a case of the Exchange Notes) or pursuant to the Registration Rights
Agreement (in the case of the Private Exchange Notes), upon a Company Order
without any further action by the Company.
ARTICLE FIVE
SPECIAL TRANSFER PROVISIONS
Section 501. Legend on Restricted Notes. (a) Each Note (including Global
Notes) shall bear a Securities Act Legend until such time as such Note is
exchanged for an Exchange Note (it being understood that the Exchange Notes
shall not bear the Securities Act Legend) or sold pursuant to an effective Shelf
Registration Statement pursuant to the Registration Rights Agreement; provided
that upon the request made by the Holder of any Note bearing a Securities Act
Legend from and after the Resale Restriction Termination Date with respect to
such Note, the Company will execute and the Trustee will
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<PAGE>
authenticate and deliver, in exchange for such Note, a new Note in like
aggregate principal amount but not bearing the Securities Act Legend.
(b) Any Note issued upon registration of transfer or exchange of a Note
which bears a Securities Act Legend shall, except as otherwise permitted
pursuant to this Fifth Supplemental Indenture, also bear a Securities Act
Legend. Any Note issued upon registration of transfer or exchange of a Note
which does not bear a Securities Legend shall not bear a Securities Act Legend.
The provisions of this paragraph shall also apply to the transfer or exchange of
beneficial interests in Global Notes.
(c) Except as provided in Section 503 of this Fifth Supplemental Indenture,
and except in the case of Exchange Notes issued pursuant to the Exchange Offer,
the Trustee shall not issue any Notes which do not bear the Securities Act
Legend until it has received an Officers' Certificate from the Company directing
it to do so.
Section 502. Book-Entry Provisions for Global Notes.
(a) General. Transfers of a Global Note shall be limited as specified in
Section 204 of the Original Indenture (such Section 204 having been added by
Section 103 of the First Supplemental Indenture). Transfers and exchanges of
beneficial interests in a Global Note may be made in accordance with the rules
and procedures of the Depositary, subject to the provisions of Section 503 of
this Fifth Supplemental Indenture to the extent applicable.
(b) Transfers of Global Notes for Certificated Notes. In connection with
any transfer of a beneficial interest in a Global Note to a Person who will take
delivery thereof in the form of a Certificated Note, the Trustee shall reflect
on its books and records and by endorsement on the grid attached to such Global
Note the date and a decrease in the principal amount of such Global Note equal
to the principal amount of the beneficial interest to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Certificated Notes of like tenor and terms and in the same aggregate
principal amount, registered in the name of the transferee.
(c) Transfers Among Global Notes. In connection with any transfer of a
beneficial interest in a Global Note to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note, the Trustee shall
reflect on its books and records and by endorsement on the grid attached to such
original Global Note the date and a decrease in the principal amount of such
first Global Note equal to the principal amount of the beneficial interest to be
so transferred, and shall also reflect on its books and records and on the grid
attached to such second Global Note the date and an increase in the principal
amount of such Global Note equal to the principal amount of the beneficial
interest to be transferred; provided that any transfer of a beneficial interest
in a Global Note which is a Restricted Note to a Person who will take delivery
thereof in the form of a beneficial interest in a Global Note which is not a
Restricted Note shall be effected only pursuant to the Exchange Offer or as
otherwise permitted by this Fifth Supplemental Indenture.
(d) Transfers of Certificated Notes for Global Notes. In connection with
any transfer of a Certificated Note to a Person who will take delivery thereof
in the form of a beneficial interest in a Global Note, the Trustee shall reflect
on its books and records and on the grid attached to such Global Note the date
and an increase in the principal amount of such Global Note equal to the
principal amount of the Certificated Note to be transferred, the Trustee shall
cancel such Certificated Note and, if the entire principal amount of such
Certificated Note is not being transferred, the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Certificated Notes equal in
principal amount to the principal amount not being transferred, registered in
the name of the transferor.
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(e) Exchange of all Global Notes for Certificated Notes. Notwithstanding
the foregoing provisions of this Section 502, in the event that Global Notes are
exchangeable for Certificated Notes as provided in the last paragraph of Section
305 of the Original Indenture (such paragraph having been added by Section
106(b) of the First Supplemental Indenture), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
Global Notes an equal aggregate principal amount of Certificated Notes,
registered in the names provided by the Depositary.
Section 503. Transfer Restrictions.
(a) Transfers of Restricted Certificated Notes to QIBs. The following
provisions shall apply with respect to any proposed transfer of a Certificated
Note which is a Restricted Note to a QIB:
(i) The Registrar shall register the transfer if (x) the transferor
has executed the transfer certificate attached to such Certificated Note or
another transfer certificate substantially in the form of Exhibit C hereto
(each, a "Transfer Certificate") and has checked the box on such Transfer
Certificate stating, or has otherwise advised the Company and the Trustee
in writing, that such transfer is being made in compliance with the
provisions of Rule 144A, (y) the proposed transferee has executed the
certification on a Transfer Certificate stating, or has otherwise advised
the Company and the Trustee in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB and is
aware that the sale to it is being made in reliance on Rule 144A, and (z)
such Transfer Certificates have been delivered to the Trustee; and
(ii) unless all of the Global Notes have been exchanged for
Certificated Notes as provided in the last paragraph of Section 305 of the
Original Indenture (such paragraph having been added by Section 106(b) of
the First Supplemental Indenture), the transferee shall be required to take
delivery of the Certificated Note being so transferred in the form of a
beneficial interest in a Global Note which bears a Securities Act Legend
and, upon receipt by the Trustee of instructions given in accordance with
the Depositary's and the Trustee's procedures, the Trustee shall effect
such transfer as provided in Section 502(d) hereof.
(b) Transfers of Restricted Certificated Notes to Non-QIB Institutional
Accredited Investors. The following provisions shall apply with respect to any
proposed transfer of a Certificated Note which is a Restricted Note to an
Institutional Accredited Investor which is not a QIB:
(i) The Registrar shall register the transfer if (x) the proposed
transferee has delivered to the Trustee a certificate substantially in the
form of Exhibit B hereto signed by the proposed transferee and (y) the
Company and the Trustee shall have received any other documents which they
may have required pursuant to Section 503(e) below; and
(ii) The Company shall execute and the Trustee shall authenticate and
deliver one or more new Certificated Notes, each bearing the Securities Act
Legend, in an aggregate principal amount equal to the principal amount of
the Certificated Note being transferred and registered in the name of the
transferee, and the Trustee shall cancel the Certificated Note being
transferred and, if the entire principal amount thereof is not being
transferred, the Company shall execute and the Trustee shall authenticate
and deliver one or more new Certificated Notes, each of which shall bear
the Securities Act Legend, equal in principal amount to the principal
amount not being transferred and registered in the name of the transferor.
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(c) Other Transfers of Restricted Certificated Notes. In the case of any
proposed registration of transfer or exchange of a Certificated Note which is a
Restricted Note and which transfer or exchange is not expressly covered in
Section 503(a) or (b) above, the Registrar and the Trustee shall register the
transfer or shall effect such exchange, as the case may be, if (x) the
transferor has executed a Transfer Certificate and checked an appropriate box on
such Transfer Certificate and delivered such Transfer Certificate to the
Trustee, and (y) if applicable, the Company and the Trustee shall have received
any other documents which they may have required pursuant to Section 503(e).
(d) Transfers of Beneficial Interests in Global Notes. Beneficial interests
in Global Notes may be transferred to Persons who will take delivery thereof in
the form of beneficial interests in the same or other Global Notes, and may be
exchanged for interests in other Global Notes, in accordance with the rules and
procedures of the Depository; provided that, except as otherwise provided
pursuant to this Fifth Supplemental Indenture, a beneficial interest in a Global
Note which is a Restricted Note may only be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in a Global Note which
bears the Securities Act Legend and a beneficial interest in a Global Note which
is a Restricted Note may only be exchanged for an interest in a Global Note
which bears the Securities Act Legend.
(e) Provisions Applicable to All Transfers of Restricted Notes. In the case
of any offer, sale or transfer of a Restricted Note to an Institutional
Accredited Investor which is not a QIB or pursuant to clause (e) of the
Securities Act Legend, the Company and the Trustee shall have the right, prior
to such offer, sale or transfer, to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to each of them to
confirm that such offer, sale or transfer is being made in a transaction which
is exempt from, or not subject to, the registration requirement of the
Securities Act, it being understood that no such opinions, certifications or
other information shall be required in connection with the offer, sale or
transfer of any Note pursuant to an effective Registration Statement, to a QIB
pursuant to Rule 144A or to the Company.
(f) Other Transfers. In the case of any transfer or exchange of a
Restricted Note the procedures and requirements for which are not addressed in
this Section 503, such transfer or exchange will be subject to such procedures
and requirements as may be reasonably prescribed by the Company from time to
time and which shall be consistent with the procedures and requirements set
forth in this Section 503.
(g) Exceptions to Transfer Restrictions. The restrictions on transfer and
other provisions set forth in this Section 503 and in the Securities Act Legend
shall not be applicable with respect to any Note following the Resale
Restriction Termination Date for such Note, and also shall not be applicable in
the case of the exchange of Notes for Exchange Notes pursuant to the Exchange
Offer or for Private Exchange Notes pursuant to the Registration Rights
Agreement.
Section 504. General. By its acceptance of any Note bearing the Securities
Act Legend, each Holder of such a Note acknowledges the restrictions on transfer
of such Note set forth in the Indenture and in such legend and agrees that it
will transfer such Note only as provided in the Indenture.
The Registrar shall retain, in accordance with its customary procedures,
copies of all letters, notices and other written communications received
pursuant to Section 503. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
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<PAGE>
ARTICLE SIX
SUNDRY PROVISIONS
Section 601. Ratification. This Fifth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein provided.
Except as expressly amended hereby, the Original Indenture is in all respects
ratified and confirmed and all the terms, conditions and provision thereof shall
remain in full force and effect.
Section 602. Counterparts. This Fifth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, and all of such counterparts shall together constitute
one and the same instrument.
Section 603. The Trustee. The Trustee makes no representation as to the
validity or sufficiency of this Fifth Supplemental Indenture. The recitals
contained herein shall be taken as the statements of the Company and the Trustee
assumes no responsibility for their correctness.
Section 604. Governing Law. This instrument shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of the State of New
York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
SUPERVALU INC.
[SEAL] By /s/
----------------------------------
Name:
Title:
Attest:
By /s/
---------------------------------
Name:
Title:
BANKERS TRUST COMPANY
[SEAL] By /s/
----------------------------------
Name:
Title:
Attest:
By /s/
---------------------------------
Name:
Title:
<PAGE>
STATE OF MINNESOTA )
: ss.:
COUNTY OF HENNEPIN )
On the _____ of __________, 1999, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he or she is ___________________ of SUPERVALU INC., one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____ of __________, 1999, before me personally came
___________________, to me known, who being by me duly sworn, did depose and say
that he or she is ___________________ of Bankers Trust Company, one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
---------------------------------
Notary Public
<PAGE>
EXHIBIT A
---------
[FORM OF NOTE]
[Each Global Note shall bear a legend substantially in the form set forth in
this paragraph and substantially in the form set forth in the next succeeding
paragraph (collectively, the "Global Securities Legend"): Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment hereon is made to Cede & Co.
or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
[This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of the Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.]
[Unless and until a Note is exchanged for an Exchange Note or sold pursuant to
an effective Registration Statement pursuant to the Registration Rights
Agreement, the Global Notes and Certificated Notes shall bear a legend
substantially to the effect set forth below in this paragraph (the "Securities
Act Legend"), subject to removal of such legend as provided in Section 501 of
the Fifth Supplemental Indenture referred to below: THE NOTES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A ("RULE 144A") UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE
LAST DATE ON WHICH SUPERVALU INC. OR ANY "AFFILIATE" (AS DEFINED IN RULE 144
UNDER THE SECURITIES ACT) OF SUPERVALU INC. WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO
SUPERVALU INC., (B) PURSUANT TO A
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REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES OF ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS
BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT SUPERVALU INC. AND THE TRUSTEE SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, BUT ONLY IF THIS NOTE IS NOT A GLOBAL SECURITY (AS DEFINED IN
THE INDENTURE REFERRED TO HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO SUPERVALU INC. AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
A-2
<PAGE>
SUPERVALU INC.
7 5/8% NOTES DUE 2004
CUSIP No. _______
No. _______
[For inclusion in Certificated Notes-- Principal Amount $__________]
SUPERVALU INC., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture referred to below), for value received, hereby promises to
pay to ________________, or registered assigns, the principal sum [For inclusion
in Certificated Notes-- of ____ Dollars ($__________)] [For inclusion in Global
Notes--indicated on Schedule A hereto] on September 15, 2004 and to pay interest
thereon from September 17, 1999, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on March 15 and September 15 in each year, commencing on March 15, 2000, at the
rate of 7 5/8% per annum, until the principal hereof is paid or made available
for payment and (to the extent that the payment of such interest shall be
legally enforceable) at the same rate per annum on any overdue principal and
premium, if any, and on any overdue installment of interest [To be deleted from
Exchange Notes-- ; provided that the interest rate on this Security shall be
subject to increase under the circumstances provided below]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be March 1 or
September 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company, payment of interest may be made by United States dollar check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account maintained by
the payee with a bank located in the United States.
Payments of interest hereon with respect to any Interest Payment Date will
include interest accrued to but excluding such Interest Payment Date. Interest
on this Security shall be computed on the basis of a 360-day year of twelve
30-day months.
[For inclusion in Global Notes--This Security is a Global Security within
the meaning of the Indenture and is registered in the name of the Depositary for
this series of Securities or a nominee of the Depositary. Subject to the terms
of the Indenture, beneficial interests in this Security shall be held through
the book-entry facilities of the Depositary, and such beneficial interests shall
be held in minimum
A-3
<PAGE>
denominations of [For inclusion in Global Notes other than Exchange Notes--
$100,000 and integral multiples of $1,000 in excess thereof] [For inclusion in
global Exchange Notes-- $1,000 and integral multiples thereof]. As long as this
Security is registered in the name of a Depositary or its nominee, the Company
will make, or will cause the Trustee to make, payments of principal of and
premium, if any, and interest on this Security by wire transfer of immediately
available funds to such Depositary or its nominee. Notwithstanding the above,
the final payment on this Security will be made only upon presentation and
surrender of this Security at an office or agency maintained by the Company for
that purpose in any Place of Payment for the Securities of this series.]
[Delete for Exchange Notes--The Holder of this Security is entitled to the
benefits of a Registration Rights Agreement (as such term is defined in the
Fifth Supplemental Indenture referred to below). In the event that
(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 135th day following the Closing Date, or
(ii) the Exchange Offer Registration Statement is not declared
effective by the Commission on or prior to the 180th day following the
Closing Date, or
(iii) the Exchange Offer is not consummated on or prior to the 45th
day following the effective date of the Exchange Offer Registration
Statement, or
(iv) if required pursuant to the Registration Rights Agreement, a
Shelf Registration Statement is not filed with the Commission on or prior
to (A) the 180th day following the Closing Date or (B) the 60th day after
the filing obligation arises, whichever is later, or
(v) if required, a Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Closing Date (or, if a
Shelf Registration Statement is required to be filed upon the request of
any Initial Purchaser, within 30 days after such request), or
(vi) a Shelf Registration Statement is declared effective by the
Commission but such Shelf Registration Statement ceases to be effective or
such Shelf Registration Statement or the Prospectus included therein ceases
to be usable in connection with resales of Registrable Securities for any
reason and either (A) the aggregate number of days in any consecutive
365-day period for which the Shelf Registration Statement or such
Prospectus shall not be effective or usable exceeds 90 days, (B) the Shelf
Registration Statement or such Prospectus shall not be effective or usable
for more than two periods (regardless of duration) in any consecutive
365-day period or (C) the Shelf Registration Statement or such Prospectus
shall not be effective or usable for a period of more than 45 consecutive
days, or
(vii) the Exchange Offer Registration Statement is declared effective
by the Commission but, if the Exchange Offer Registration Statement is
being used in connection with the resale of Exchange Notes as contemplated
by Section 3(f)(B) of the Registration Rights Agreement, the Exchange Offer
Registration Statement ceases to be effective or the Exchange Offer
Registration Statement or the Prospectus included therein ceases to be
usable in connection with resales of Exchange Securities for any reason
during the 180-day period referred to in Section 3(f)(B) of the
Registration Rights Agreement (as such period may be extended pursuant to
the last paragraph of Section 3 of the Registration Rights Agreement) and
either (A) the aggregate number of days in any consecutive 365-day period
for which the Exchange Offer Registration Statement or such Prospectus
shall not be effective or usable exceeds 90 days, (B) the Exchange Offer
Registration Statement or such Prospectus shall not be effective or usable
for more than two periods
A-4
<PAGE>
(regardless of duration) in any consecutive 365-day period or (C) the
Exchange Offer Registration Statement or the Prospectus shall not be
effective or usable for a period of more than 45 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by this Security, so long as this Security is a Registrable Security, shall be
increased ("Additional Interest") by one-quarter of one percent (0.25%) per
annum immediately following such 135-day period in the case of clause (i) above,
immediately following such 180-day period in the case of clause (ii) above,
immediately following such 45-day period in the case of clause (iii) above,
immediately following any such 180-day period or 60-day period, whichever ends
later, in the case of clause (iv) above, immediately following any such 225-day
period or 30-day period, whichever ends first, in the case of clause (v) above,
immediately following the 90th day in any consecutive 365-day period, as of the
first day of the third period in any consecutive 365-day period or immediately
following the 45th consecutive day, whichever occurs first, that a Shelf
Registration Statement shall not be effective or a Shelf Registration Statement
or the Prospectus included therein shall not be usable as contemplated by clause
(vi) above, or immediately following the 90th day in any consecutive 365-day
period, as of the first day of the third period in any consecutive 365-day
period or immediately following the 45th consecutive day, whichever occurs
first, that the Exchange Offer Registration Statement shall not be effective or
the Exchange Offer Registration Statement or the Prospectus included therein
shall not be usable as contemplated by clause (vii) above, which rate will be
increased by an additional one-quarter of one percent (0.25%) per annum
immediately following each 90-day period that any Additional Interest continues
to accrue under any circumstances; provided that the aggregate increase in such
annual interest rate may in no event exceed one-half of one percent (0.50%) per
annum. Upon the filing of the Exchange Offer Registration Statement after the
135-day period described in clause (i) above, the effectiveness of the Exchange
Offer Registration Statement after the 180-day period described in clause (ii)
above, the consummation of the Exchange Offer after the 45-day period described
in clause (iii) above, the filing of the Shelf Registration Statement after the
180-day period or 60-day period day, as the case may be, described in clause
(iv) above, the effectiveness of a Shelf Registration Statement after the
225-day period or 30-day period, as the case may be, described in clause (v)
above, or the Shelf Registration Statement once again being effective or the
Shelf Registration Statement and the Prospectus included therein becoming usable
in connection with resales of Registrable Securities, as the case may be, in the
case of clause (vi) above, or the Exchange Offer Registration Statement once
again becoming effective or the Exchange Offer Registration Statement and the
Prospectus included therein becoming usable in connection with resales of
Exchange Securities, as the case may be, in the case of clause (vii) thereof,
the interest rate borne by this Security from the date of such filing,
effectiveness, consummation or resumption of effectiveness or usability, as the
case may be, shall be reduced to the original interest rate so long as no other
Registration Default shall have occurred and shall be continuing at such time
and the Company is otherwise in compliance with this paragraph; provided,
however, that, if after any such reduction in interest rate, one or more
Registration Defaults shall again occur, the interest rate shall again be
increased pursuant to the foregoing provisions. Anything herein to the contrary
notwithstanding, any Holder who was, at the time the Exchange Offer was pending
and consummated, eligible to exchange, and did not validly tender, its
Securities for Exchange Notes in the Exchange Offer will not be entitled to
receive any Additional Interest. For purposes of clarity, the Company hereby
acknowledges and agrees that, under current interpretations of law by the
Commission, Initial Purchasers holding unsold allotments of Securities acquired
from the Company are not eligible to participate in the Exchange Offer.]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1987 (as amended by a First
Supplemental Indenture dated as of August 1, 1990, a Second Supplemental
Indenture dated as of October 1, 1992, a Third Supplemental Indenture dated as
of
A-5
<PAGE>
September 1, 1995, a Fourth Supplemental Indenture (the "Fourth Supplemental
Indenture") dated as of August 4, 1999 and a Fifth Supplemental Indenture (the
"Fifth Supplemental Indenture") dated as of September 17, 1999 (as so amended,
the "Indenture")), each between the Company and Bankers Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to $250,000,000; provided that the aggregate principal amount of the Securities
of this series which may be Outstanding may be increased by the Company upon the
terms and subject to the conditions set forth in the Fifth Supplemental
Indenture. The Securities of this series are issuable only in registered form,
without coupons, in the denominations specified in the Fifth Supplemental
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
The Company shall have the right to redeem the Securities of this series,
in whole at any time or from time to time in part, at the option of the Company,
at a Redemption Price equal to the greater of (1) 100% of the principal amount
of the Securities of this series to be redeemed and (2) the sum of the present
values of the Remaining Scheduled Payments on the Securities of this series to
be redeemed discounted to the applicable Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at a rate per annum
equal to the sum of the Treasury Rate plus 25 basis points plus, in either case,
accrued interest on the principal amount being redeemed to such Redemption Date;
provided, however, that installments of interest on Securities of this series
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of those Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of the Indenture.
"Treasury Rate" means, for any Redemption Date with respect to the
Securities of this series, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption Date for
the Securities of this series, the United States Treasury security, selected by
a Reference Treasury Dealer appointed by the Company, as having a maturity
comparable to the remaining term of the Securities of this series to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of those Securities.
"Comparable Treasury Price" means, for any Redemption Date with respect to
the Securities of this series, (1) the average of the four Reference Treasury
Dealer Quotations for such Redemption Date after excluding the highest and
lowest of those Reference Treasury Dealer Quotations or (2) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such quotations actually obtained by the Trustee.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney Inc. and U.S.
Bancorp Piper Jaffray Inc. and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary
A-6
<PAGE>
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, for each Reference Treasury
Dealer and any Redemption Date for the Securities of this series, the average,
as determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third business day preceding that Redemption Date. As
used in this paragraph, the term "business day" means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
in The City of New York are authorized or obligated by law or executive order to
close.
"Remaining Scheduled Payments" means, for each Security of this series to
be redeemed, the remaining scheduled payments of principal of and interest on
that Security that would be due after the related Redemption Date but for that
redemption; provided that if that Redemption Date is not an Interest Payment
Date with respect to that Security, the amount of the next succeeding scheduled
interest payment on that Security will be reduced by the amount of interest
accrued on that Security to that Redemption Date.
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the date fixed for redemption, all
as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to the provisions of, the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days;
A-7
<PAGE>
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of (or
premium, if any) or interest on this Security on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Fifth Supplemental
Indenture shall have the meanings assigned to them in the Fifth Supplemental
Indenture and all other terms used in this Security and defined elsewhere in the
Indenture shall have the meanings assigned to them therein.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below, directly or through an Authenticating Agent, by
manual signature of an authorized signatory, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
[SIGNATURE PAGE FOLLOWS]
A-8
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SUPERVALU INC.
By /s/
----------------------------------
[Seal] Name:
Title:
Attest:
/s/
- ----------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY
as Trustee
By /s/
----------------------------------
Authorized Signature
A-9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription above, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
----------------- --------------
(Cust) (Minor)
under the Uniform Gifts to Minors Act
--------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
--------------------------------------
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned registered holder(s) hereby sell(s),
assign(s) and transfer(s) unto
----------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address Including Postal
Zip Code of Assignee)
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, and hereby irrevocably
constitute(s) and appoint(s)
- --------------------------------------------------------------------------------
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated:
------------------------
Signature Guaranteed:
------------------------ ------------------------
A-10
<PAGE>
NOTICE: The signature(s) to this assignment must correspond with the
name(s) as written upon the within instrument in every particular, without
alteration or enlargement or any change whatever. The signature(s) must be
guaranteed by an eligible guarantor institution with membership in an approved
signature guarantee "medallion" program pursuant to Commission Rule 17Ad-15.
A-11
<PAGE>
[For inclusion in Restricted Notes]
TRANSFER CERTIFICATE
Re: SUPERVALU INC.
7 5/8% Notes due 2004 (the "Notes")
-----------------------------------
Reference is hereby made to the Indenture dated as of July 1, 1987, as
supplemented (the "Indenture"), between Bankers Trust Company, as trustee (the
"Trustee"), and SUPERVALU INC. (the "Company"). Capitalized terms used but not
defined in this Certificate shall have the meanings given to such terms in the
Indenture.
This Certificate relates to $__________ principal amount of Notes (the
"Specified Securities") represented by a Certificated Note registered in the
name of the undersigned (the "Transferor"). The Transferor has requested a
transfer of the Specified Securities to a Person who will take delivery thereof
in the form of a Certificated Note or to a QIB (as defined below) who will take
delivery thereof in the form of a beneficial interest in a Global Security.
In connection with such request, the Transferor does hereby certify that
such transfer is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") (as
indicated by the applicable box checked below), or the transfer does not require
registration under the Securities Act because (as indicated by the applicable
box checked below):
(a)0 The Specified Securities are being transferred pursuant to an
effective registration statement under the Securities Act.
(b)0 The Specified Securities are being acquired for the Transferor's own
account, without transfer.
(c)0 The Specified Securities are being transferred to the Company.
(d)0 The Specified Securities are being transferred in compliance with Rule
144A ("Rule 144A") under the Securities Act to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A) (a "QIB") that is purchasing the Specified Securities
for its own account or for the account of another QIB, in each case to
whom notice has been given that the transfer is being made in reliance
on Rule 144A.
(e)0 The Specified Securities are being transferred to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) (an "Institutional Accredited Investor")
purchasing for its own account or for the account of one or more other
Institutional Accredited Investors over which it exercises sole
investment discretion and that, prior to such transfer, furnishes to
the Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes (the
form of which letter can be obtained from the Trustee).
(f)0 The Specified Securities are being transferred pursuant to another
available exemption from the registration requirements of the
Securities Act.
A-12
<PAGE>
This Certificate and the statements contained herein are made for the
benefit of the Trustee, the Company and the initial purchasers, in the initial
offering of the Notes.
----------------------------------
(Insert Name of Transferor)
By:
-------------------------------
Date:
----------------------------------
TO BE COMPLETED BY TRANSFEREE
IF (d) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a QIB (as
defined above) and is aware that the Specified Securities (as defined above) are
being transferred in reliance on Rule 144A (as defined above), (ii) the
undersigned is acquiring the Specified Securities for its own account or for the
account of one or more other QIBs over which it exercises sole investment
discretion (in which latter case the undersigned has given notice to each such
account that the Specified Securities are being transferred in reliance on Rule
144A) and (iii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers. The undersigned transferee
acknowledges and agrees that the Specified Securities have not been registered
under the Securities Act (as defined above), and may not be transferred except
in accordance with the resale and other transfer restrictions set forth in the
legend on the face thereof.
Dated:
----------------------------- -----------------------------
(Insert Name of Transferee)
By:
--------------------------
Executive Officer
A-13
<PAGE>
[For inclusion in Global Notes]
SCHEDULE A
The initial principal amount of this Global Security is $____________. The
following increases or decreases in the principal amount of this Global Security
have been made:
<TABLE>
<CAPTION>
========================= ====================== ======================= ====================== ======================
Amount of increase Amount of decrease Principal amount of
in principal amount in principal amount this Global Security Signature of
of this Global of this Global following such authorized signatory
Date made Security Security decrease or increase of Trustee
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
========================= ====================== ======================= ====================== ======================
</TABLE>
A-14
<PAGE>
EXHIBIT B
---------
Form of Certificate to Be
Delivered in Connection with
Transfers of Restricted Certificated Notes
to Non-QIB Accredited Investors
-------------------------------
----------, --
SUPERVALU INC.
c/o Bankers Trust Company
Four Albany Street
New York, New York 10006
Re: SUPERVALU INC. (the "Company")
7 5/8% Notes due 2004 (the "Notes")
-----------------------------------
Dear Sirs:
In connection with our proposed purchase of $_____________ aggregate
principal amount of the 7 5/8% Notes due 2004 (the "Notes") of SUPERVALU INC., a
Delaware corporation ("SUPERVALU"), we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")) purchasing for our own account or
for the account of such an institutional "accredited investor", and we are
acquiring the Notes for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or other applicable securities law and we have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act or any other applicable securities law
and may not be offered, sold or otherwise transferred except in compliance
with the registration requirements of the Securities Act or any other
applicable securities law, or pursuant to an exemption therefrom, or in a
transaction not subject thereto, and in each case in compliance with the
conditions for transfer set forth below. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to (x) the date which is two
years (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act) after the later of the date of original issue of the Notes
and the last date on which SUPERVALU or any "affiliate" (as defined in Rule
144 under the Securities Act) of SUPERVALU was the owner of such Notes (or
any predecessor thereto) or (y) such later date, if any, as may be required
by applicable law (the "Resale Restriction Termination Date") only (a) to
SUPERVALU, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes are
eligible for resale pursuant to Rule 144A under the Securities Act, to a
person we reasonably believe is a "Qualified Institutional Buyer" within
the meaning of Rule 144A (a "QIB") that purchases for its own account or
for the account of a QIB, in each case to whom
<PAGE>
notice is given that the transfer is being made in reliance on Rule 144A,
(d) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act
that is acquiring the Notes for its own account or for the account of such
an institutional "accredited investor" for investment purposes and not with
a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act or (e) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject
in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and to compliance with
any applicable state or other securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination
Date. If any resale or other transfer of the Notes is proposed to be made
pursuant to clause (d) above prior to the Resale Restriction Termination
Date, the transferor shall deliver to the trustee under the Indenture
pursuant to which the Notes are issued (the "Trustee") a letter from the
transferee substantially in the form of this letter, which shall provide,
among other things, that the transferee is an institutional "accredited
investor" as defined in paragraph 1 of this letter and that it is acquiring
such Notes for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge that SUPERVALU and the Trustee reserve
the right prior to any offer, sale or other transfer of the Notes pursuant
to clauses (d) or (e) above prior to the Resale Restriction Termination
Date to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to SUPERVALU and the Trustee.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. You and the initial purchasers of the Notes are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
------------------------------
Date:
-----------------------------
Upon transfer the Notes would be registered in the name of the new owner as
follows:
Taxpayer ID
Name Address Number
---- ------- ------
B-2
<PAGE>
EXHIBIT C
---------
FORM OF TRANSFER CERTIFICATE
Re: SUPERVALU INC.
7 5/8% Notes due 2004 (the "Notes")
-----------------------------------
Reference is hereby made to the Indenture dated as of July 1, 1987, as
supplemented (the "Indenture"), between Bankers Trust Company, as trustee (the
"Trustee"), and SUPERVALU INC. (the "Company"). Capitalized terms used but not
defined in this Certificate shall have the meanings given to such terms in the
Indenture.
This Certificate relates to $__________ principal amount of Notes (the
"Specified Securities") represented by a Certificated Note registered in the
name of the undersigned (the "Transferor"). The Transferor has requested a
transfer of the Specified Securities to a Person who will take delivery thereof
in the form of a Certificated Note or to a QIB (as defined below) who will take
delivery thereof in the form of a beneficial interest in a Global Security.
In connection with such request, the Transferor does hereby certify that
such transfer is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") (as
indicated by the applicable box checked below), or the transfer does not require
registration under the Securities Act because (as indicated by the applicable
box checked below):
(a)0 The Specified Securities are being transferred pursuant to an
effective registration statement under the Securities Act.
(b)0 The Specified Securities are being acquired for the Transferor's own
account, without transfer.
(c)0 The Specified Securities are being transferred to the Company.
(d)0 The Specified Securities are being transferred in compliance with Rule
144A ("Rule 144A") under the Securities Act to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A) (a "QIB") that is purchasing the Specified Securities
for its own account or for the account of another QIB, in each case to
whom notice has been given that the transfer is being made in reliance
on Rule 144A.
(e)0 The Specified Securities are being transferred to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) (an "Institutional Accredited Investor")
purchasing for its own account or for the account of one or more other
Institutional Accredited Investors over which it exercises sole
investment discretion and that, prior to such transfer, furnishes to
the Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes (the
form of which letter can be obtained from the Trustee).
(f)0 The Specified Securities are being transferred pursuant to another
available exemption from the registration requirements of the
Securities Act.
<PAGE>
This Certificate and the statements contained herein are made for the
benefit of the Trustee, the Company and the initial purchasers, if any, in the
initial offering of the Notes.
---------------------------------
(Insert Name of Transferor)
By:
------------------------------
Date:
------------------------
TO BE COMPLETED BY TRANSFEREE
IF (d) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a QIB (as
defined above) and is aware that the Specified Securities (as defined above) are
being transferred in reliance on Rule 144A (as defined above), (ii) the
undersigned is acquiring the Specified Securities for its own account or for the
account of one or more other QIBs over which it exercises sole investment
discretion (in which latter case the undersigned has given notice to each such
account that the Specified Securities are being transferred in reliance on Rule
144A) and (iii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers. The undersigned transferee
acknowledges and agrees that the Specified Securities have not been registered
under the Securities Act (as defined above), and may not be transferred except
in accordance with the resale and other transfer restrictions set forth in the
legend on the face thereof.
Dated:
----------------------- -----------------------------
(Insert Name of Transferee)
By:
--------------------------
Executive Officer
C-2
<PAGE>
Exhibit 4.4
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of August 4, 1999
among
SUPERVALU INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
U.S. BANCORP PIPER JAFFRAY INC.
CHASE SECURITIES INC.
FIRST UNION CAPITAL MARKETS CORP.
McDONALD INVESTMENTS INC.
as the Initial Purchasers
- --------------------------------------------------------------------------------
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of August 4, 1999
among SUPERVALU INC., a Delaware corporation (the "Company"), and MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, GOLDMAN, SACHS & CO., SALOMON SMITH BARNEY
INC., U.S. BANCORP PIPER JAFFRAY INC., CHASE SECURITIES INC., FIRST UNION
CAPITAL MARKETS CORP. and McDONALD INVESTMENTS INC. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated July 30,
1999 by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $350,000,000 aggregate principal amount of the Company's 7 7/8%
Notes due 2009 (the "Securities"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to the
Initial Purchasers' obligations thereunder, the Company has agreed to provide to
the Initial Purchasers and their respective direct and indirect transferees and
assigns the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Closing Time" shall mean August 4, 1999.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, including any agent thereof; provided,
however, that any such depositary must at all times have an address in the
Borough of Manhattan, The City of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
<PAGE>
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) covering the Registrable Securities, and all amendments
and supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"Exchange Securities" shall mean the 7 7/8% Notes due 2009 issued by
the Company under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last
date to which interest has been paid or duly provided for on the Securities
or, if no such interest has been paid or duly provided for, from the
Interest Accrual Date, (ii) provisions relating to an increase in the
stated rate of interest thereon upon the occurrence of a Registration
Default shall be eliminated, (iii) the transfer restrictions and legends
relating to restrictions on ownership and transfer thereof as a result of
the issuance of the Securities without registration under the 1933 Act
shall be eliminated, (iv) the denominations thereof shall be $1,000 and
integral multiples of $1,000) and (v) all of the Exchange Securities will
be represented by one or more global Exchange Securities in book-entry form
unless exchanged for Exchange Securities in definitive certificated form
under the circumstances provided in the Indenture) to be offered to Holders
of Registrable Securities in exchange for Registrable Securities pursuant
to the Exchange Offer.
"Holders" shall mean (i) the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their respective successors,
assigns and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and (ii) each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities.
"Indenture" shall mean the Indenture dated as of July 1, 1987, as
amended and supplemented by the First Supplemental Indenture dated as of
August 1, 1990, the Second Supplemental Indenture dated as of October 1,
1992, the Third Supplemental Indenture dated as of September 1, 1995 and
the Fourth Supplemental Indenture dated as of August 4, 1999, each between
the Company and Bankers Trust Company, as trustee, as the same may be
further amended or supplemented from time to time in accordance with the
terms thereof.
"Interest Accrual Date" means August 4, 1999.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding, excluding
Exchange Securities referred to in clause (ii) of the definition of
"Holders" above; provided that whenever the consent or approval of Holders
of a specified percentage of Registrable Securities or Exchange Securities
is required hereunder, Registrable Securities and Exchange
2
<PAGE>
Securities held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the 1933 Act) shall be disregarded in determining
whether such consent or approval was given by the Holders of such required
percentage.
"Merrill Lynch" shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated and its successors.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notifying Broker-Dealer" shall have the meaning set forth in Section
3(f).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Person" shall mean an individual, partnership, joint venture, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated or deemed to be incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that any Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities
shall have been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding, (iv) such Securities have
been exchanged for Exchange Securities which have been registered pursuant
to the Exchange Offer Registration Statement upon consummation of the
Exchange Offer unless, in the case of any Exchange Securities referred to
in this clause (iv), such Exchange Securities are held by Participating
Broker-Dealers or otherwise are not freely tradable without any limitations
or restrictions under the 1933 Act (in which case such Exchange Securities
will be deemed to be Registrable Securities until
3
<PAGE>
such time as such Exchange Securities are sold to a purchaser in whose
hands such Exchange Securities are freely tradeable without any limitations
or restrictions under the 1933 Act) or (v) such Securities have been
exchanged for Private Exchange Securities pursuant to the Registration
Rights Agreement (in which case such Private Exchange Securities will be
deemed to be Registrable Securities until such time as such Private
Exchange Securities are sold to a purchaser in whose hands such Private
Exchange Securities are freely tradeable without any limitation or
restrictions under the 1933 Act).
"Registration Default" shall have the meaning set forth in Section
2(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state or other securities or blue sky laws and compliance
with the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with qualification of
any of the Exchange Securities or Registrable Securities under state or
other securities or blue sky laws and any filing with and review by the
NASD), (iii) all expenses of any Persons in preparing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements, certificates representing the Securities or Exchange Securities
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses incurred
in connection with the listing, if any, of any of the Securities, Private
Exchange Securities (if any) or Exchange Securities on any securities
exchange or exchanges or on any quotation system, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel for
the Company and the fees and expenses of independent public accountants for
the Company or for any other Person, business or assets whose financial
statements are included in any Registration Statement or Prospectus,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (viii) the fees
and expenses of a "qualified independent underwriter" as defined by Conduct
Rule 2720 of the NASD (if required by the NASD rules) and the fees and
disbursements of its counsel, (ix) the fees and expenses of the Trustee,
any registrar, any depositary, any paying agent, any escrow agent or any
custodian, in each case including fees and disbursements of their
respective counsel, and (x) in the case of an underwritten offering, any
fees and disbursements of the underwriters customarily paid by issuers or
sellers of securities and the fees and expenses of any special experts
retained by the Company in connection with any Registration Statement but
excluding (except as otherwise provided herein) fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company relating to any offering of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement (including, without
limitation, any Exchange Offer Registration Statement and any Shelf
Registration Statement), and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
4
<PAGE>
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities or Private
Exchange Securities (if any), as the case may be, on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"Trustee" shall mean the trustee with respect to the Securities, the
Private Exchange Securities (if any) and the Exchange Securities under the
Indenture.
For purposes of this Agreement, (i) all references in this Agreement to any
Registration Statement, preliminary prospectus or Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval
system; (ii) all references in this Agreement to financial statements and
schedules and other information which is "contained", "included" or "stated" in
any Registration Statement, preliminary prospectus or Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Registration Statement,
preliminary prospectus or Prospectus, as the case may be; (iii) all references
in this Agreement to amendments or supplements to any Registration Statement,
preliminary prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated or deemed to be
incorporated by reference in such Registration Statement, preliminary prospectus
or Prospectus, as the case may be; (iv) all references in this Agreement to Rule
144, Rule 144A or Rule 405 under the 1933 Act, and all references to any
sections or subsections thereof or terms defined therein, shall in each case
include any successor provisions thereto; and (v) all references in this
Agreement to days (but not to business days) mean calendar days.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. The Company shall (A) file with the SEC on
or prior to the 135th day after the Closing Time an Exchange Offer Registration
Statement covering the offer by the Company to the Holders to exchange all of
the Registrable Securities for a like aggregate principal amount of Exchange
Securities, (B) use its reasonable best efforts to cause such Exchange Offer
Registration Statement to be declared effective by the SEC no later than the
5
<PAGE>
180th day after the Closing Time, (C) use its reasonable best efforts to cause
such Registration Statement to remain effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts to consummate the
Exchange Offer no later than 45 days after the effective date of the Exchange
Offer Registration Statement. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for Exchange Securities (assuming
that such Holder is not an affiliate of the Company within the meaning of Rule
405 under the 1933 Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing such
Exchange Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act or under the
securities or blue sky laws of the states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) promptly mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20 business days
(or longer if required by applicable law) after the date notice thereof is
mailed to the Holders and, during the Exchange Offer, offer to all Holders
who are legally eligible to participate in the Exchange Offer the
opportunity to exchange their Registrable Securities for Exchange
Securities;
(iii) use the services of a depositary with an address in the Borough
of Manhattan, The City of New York for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at any
time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the Prospectus or the related letter of
transmittal or related documents a telegram, telex, facsimile transmission
or letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement that such
Holder is withdrawing its election to have such Securities exchanged; and
(v) otherwise comply in all material respects with all applicable laws
relating to the Exchange Offer.
If, at or prior to the consummation of the Exchange Offer, any of the
Initial Purchasers holds any Securities acquired by it and having the status of
an unsold allotment in the initial distribution, the Company shall, upon the
request of any such Initial Purchaser, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial
Purchaser in exchange for such Securities a like principal amount of debt
securities of the Company that are identical (except that such debt securities
shall be subject to transfer restrictions and shall bear a legend relating to
restrictions on ownership and transfer as a result of
6
<PAGE>
the issuance thereof without registration under the 1933 Act, shall provide for
the payment of Additional Interest and shall be issuable in denominations of
$100,000 in integral multiples of $1,000 in excess thereof) to the Exchange
Securities (the "Private Exchange Securities"). The Company shall use its
reasonable best effort to have the Private Exchange Securities bear the same
CUSIP number as the Exchange Securities and, if unable to do so, the Company
will, at such time as any Private Exchange Security ceases to be a "restricted
security" within the meaning of Rule 144 under the 1933 Act, permit any such
Private Exchange Security to be exchanged for a like principal amount of
Exchange Securities. The Company shall not have any liability under this
Agreement solely as a result of any such Private Exchange Securities not bearing
the same CUSIP number as the Exchange Securities.
The Exchange Securities and the Private Exchange Securities (if any) shall
be issued under the Indenture, which shall be qualified under the TIA. The
Indenture shall provide that the Exchange Securities, the Private Exchange
Securities (if any) and the Securities shall vote and consent together on all
matters as a single class and shall constitute a single series of debt
securities issued under the Indenture.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities to each Holder of Registrable Securities so accepted for
exchange equal in principal amount to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and such Private Exchange Security (if
any) will accrue from the last date on which interest was paid or duly provided
for on the Securities surrendered in exchange therefor or, if no interest has
been paid or duly provided for on such Securities, from the Interest Accrual
Date. The Exchange Offer shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any exchange by a Holder, does not
violate any applicable law or any applicable interpretation of the staff of the
SEC, (ii) that no action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency with respect to the
Exchange Offer which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer, and (iii)
that the Holders tender the Registrable Securities to the Company in accordance
with the Exchange Offer. Each Holder of Registrable Securities (other than
Participating Broker-Dealers) who wishes to exchange such Registrable Securities
for Exchange Securities in the Exchange Offer will be required to represent that
(i) it is not an affiliate (as defined in Rule 405 under the 1933 Act) of the
Company, (ii) any Exchange Securities to be received by it will be acquired in
the ordinary course of business and (iii) it has no arrangement
7
<PAGE>
with any Person to participate in the distribution (within the meaning of the
1933 Act) of the Exchange Securities, and shall be required to make such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or another
appropriate form under the 1933 Act available. To the extent permitted by law,
the Company shall inform the Initial Purchasers of the names and addresses of
the Holders of Securities to whom the Exchange Offer is made and, to the extent
such information is available to the Company, the names and addresses of the
beneficial owners of such Securities, and the Initial Purchasers shall have the
right to contact such Holders and beneficial owners and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law or applicable
interpretations thereof by the staff of the SEC, the Company is not permitted to
effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if for
any other reason (A) the Exchange Offer Registration Statement is not declared
effective within 180 days following the Closing Time or (B) the Exchange Offer
is not consummated within 45 days after effectiveness of the Exchange Offer
Registration Statement (provided that if the Exchange Offer Registration
Statement shall be declared effective after such 180-day period or if the
Exchange Offer shall be consummated after such 45-day period, then the Company's
obligations under this clause (ii) arising from the failure of the Exchange
Offer Registration Statement to be declared effective within such 180-day period
or the failure of the Exchange Offer to be consummated within such 45-day
period, respectively, shall terminate), or (iii) if any Holder (other than an
Initial Purchaser holding Securities acquired directly from the Company) is not
eligible to participate in the Exchange Offer or elects to participate in the
Exchange Offer but does not receive Exchange Securities which are freely
tradeable without any limitations or restrictions under the 1933 Act or (iv)
upon the request of any of the Initial Purchasers within 90 days following the
consummation of the Exchange Offer (provided that, in the case of this clause
(iv), such Initial Purchaser shall hold Registrable Securities (including,
without limitation, Private Exchange Securities) that it acquired directly from
the Company), the Company shall, at its cost:
(A) as promptly as practicable, but no later than (a) the 180th day
after the Closing Time or (b) the 60th day after any such filing obligation
arises, whichever is later, file with the SEC a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by
the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Securities
and set forth in such Shelf Registration Statement;
(B) use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC as promptly as practicable,
but in no event later than the 225th day after the Closing Time (or, in the
case of a request by any of the Initial Purchasers pursuant to clause (iv)
above, within 30 days after such request). In the event that the Company is
required to file a Shelf Registration Statement pursuant to clause (iii) or
(iv) above, the Company shall file and use its reasonable best efforts to
have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by such Holder
or such Initial Purchaser, as applicable;
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(C) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required, in
order to permit the Prospectus forming part thereof to be usable by Holders
for a period of two years after the latest date on which any Securities are
originally issued by the Company (subject to extension pursuant to the last
paragraph of Section 3) or, if earlier, when all of the Registrable
Securities covered by such Shelf Registration Statement (i) have been sold
pursuant to the Shelf Registration Statement in accordance with the
intended method of distribution thereunder, (ii) become eligible for resale
pursuant to Rule 144(k) under the 1933 Act or (iii) cease to be Registrable
Securities; and
(D) notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any supplements
thereto comply in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration
Statement and any amendment or supplement to such Prospectus does not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, clauses (ii) and (iii) shall not apply to any statement in or
omission from a Shelf Registration Statement or a Prospectus made in
reliance upon and conformity with information relating to any Initial
Purchaser, Holder, Participating Broker-Dealer or underwriter of
Registrable Securities furnished to the Company in writing by such Initial
Purchaser, Holder, Participating Broker-Dealer or underwriter,
respectively, expressly for use in such Shelf Registration Statement or
Prospectus.
The Company shall not permit any securities other than Registrable
Securities to be included in any Shelf Registration Statement without the prior
written consent of Merrill Lynch, which consent shall not be unreasonably
withheld. The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use its reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and 2(b) and, in the case of any
Shelf Registration Statement, will reimburse the Holders or the Initial
Purchasers for the reasonable fees and disbursements of one counsel (in addition
to any local counsel) designated in writing by the Majority Holders (or, if a
Shelf Registration Statement if filed solely pursuant to clause (iv) of the
first paragraph of Section 2(b), designated by the Initial Purchasers) to act as
counsel for the Holders of the Registrable Securities in connection therewith.
Each Holder shall pay all fees and disbursements of its counsel other than as
set forth in the preceding sentence or in the definition of Registration
Expenses and all underwriting discounts and commissions and transfer taxes, if
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<PAGE>
any, relating to the sale or disposition of such Holder's Registrable Securities
pursuant to a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or any Shelf
Registration Statement, as the case may be, to become, or to remain,
effective during the requisite periods set forth herein if the Company
voluntarily takes any action that could reasonably be expected to result in
any such Registration Statement not being declared effective or remaining
effective or in the Holders of Registrable Securities (including, under the
circumstances contemplated by Section 3(f) hereof, Exchange Securities)
covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company in
good faith and for valid business reasons (but not including avoidance of
the Company's obligations hereunder), including the acquisition or
divestiture of assets or a material corporate transaction or event so long
as the Company promptly complies with the notification requirements of
Section 3(k) hereof, if applicable. Nothing in this paragraph shall prevent
the accrual of Additional Interest on any Securities or Exchange
Securities.
(ii) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
shall not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to a
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement shall be deemed not to have been
effective during the period of such interference until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
(iii) During any 365-day period, the Company may, by notice as
described in Section 3(e), suspend the availability of a Shelf Registration
Statement (and, if the Exchange Offer Registration Statement is being used
in connection with the resale of Exchange Securities by Participating
Broker-Dealers as contemplated by Section 3(f), the Exchange Offer
Registration Statement) and the use of the related Prospectus for up to two
periods of up to 45 consecutive days each (except for the consecutive
45-day period immediately prior to final maturity of the Securities), but
no more than an aggregate of 90 days during any 365-day period, upon the
happening of any event or the discovery of any fact referred to in Section
3(e)(vi), but subject to compliance by the Company with its obligations
under the last paragraph of Section 3.
(e) Increase in Interest Rate. In the event that:
(i) the Exchange Offer Registration Statement is not filed with the
SEC on or prior to the 135th day following the Closing Time, or
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(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day following the Closing
Time, or
(iii) the Exchange Offer is not consummated on or prior to the 45th
day following the effective date of the Exchange Offer Registration
Statement, or
(iv) if required, a Shelf Registration Statement is not filed with the
SEC on or prior to (A) the 180th day following the Closing Time or (B) the
60th day after the filing obligation arises, whichever is later, or
(v) if required, a Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Closing Time (or, if a
Shelf Registration Statement is required to be filed upon the request of
any Initial Purchaser, within 30 days after such request), or
(vi) a Shelf Registration Statement is declared effective by the SEC
but such Shelf Registration Statement ceases to be effective or such Shelf
Registration Statement or the Prospectus included therein ceases to be
usable in connection with resales of Registrable Securities for any reason
and either (A) the aggregate number of days in any consecutive 365-day
period for which the Shelf Registration Statement or such Prospectus shall
not be effective or usable exceeds 90 days, (B) the Shelf Registration
Statement or such Prospectus shall not be effective or usable for more than
two periods (regardless of duration) in any consecutive 365-day period or
(C) the Shelf Registration Statement or such Prospectus shall not be
effective or usable for a period of more than 45 consecutive days, or
(vii) the Exchange Offer Registration Statement is declared effective
by the SEC but, if the Exchange Offer Registration Statement is being used
in connection with the resale of Exchange Securities as contemplated by
Section 3(f) of this Agreement, the Exchange Offer Registration Statement
ceases to be effective or the Exchange Offer Registration Statement or the
Prospectus included therein ceases to be usable in connection with resales
of Exchange Securities for any reason during the 180-day period referred to
in Section 3(f)(B) of this Agreement (as such period may be extended
pursuant to the last paragraph of Section 3 of this Agreement) and either
(A) the aggregate number of days in any consecutive 365-day period for
which the Exchange Offer Registration Statement or such Prospectus shall
not be effective or usable exceeds 90 days, (B) the Exchange Offer
Registration Statement or such Prospectus shall not be effective or usable
for more than two periods (regardless of duration) in any consecutive
365-day period or (C) the Exchange Offer Registration Statement or the
Prospectus shall not be effective or usable for a period of more than 45
consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by the Registrable Securities shall be increased ("Additional Interest") by
one-quarter of one percent (0.25%) per annum immediately following such 135-day
period in the case of clause (i) above, immediately following such 180-day
period in the case of clause (ii) above, immediately following such 45-day
period in the case of clause (iii) above, immediately following any such 180-day
period or 60-day period,
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<PAGE>
whichever ends later, in the case of clause (iv) above, immediately following
any such 225-day period or 30-day period, whichever ends first, in the case of
clause (v) above, immediately following the 90th day in any consecutive 365-day
period, as of the first day of the third period in any consecutive 365-day
period or immediately following the 45th consecutive day, whichever occurs
first, that a Shelf Registration Statement shall not be effective or a Shelf
Registration Statement or the Prospectus included therein shall not be usable as
contemplated by clause (vi) above, or immediately following the 90th day in any
consecutive 365-day period, as of the first day of the third period in any
consecutive 365-day period or immediately following the 45th consecutive day,
whichever occurs first, that the Exchange Offer Registration Statement shall not
be effective or the Exchange Offer Registration Statement or the Prospectus
included therein shall not be usable as contemplated by clause (vii) above,
which rate will be increased by an additional one-quarter of one percent (0.25%)
per annum immediately following each 90-day period that any Additional Interest
continues to accrue under any circumstances; provided that the aggregate
increase in such annual interest rate may in no event exceed one-half of one
percent (0.50%) per annum. Upon the filing of the Exchange Offer Registration
Statement after the 135-day period described in clause (i) above, the
effectiveness of the Exchange Offer Registration Statement after the 180-day
period described in clause (ii) above, the consummation of the Exchange Offer
after the 45-day period described in clause (iii) above, the filing of the Shelf
Registration Statement after the 180-day period or 60-day period day, as the
case may be, described in clause (iv) above, the effectiveness of a Shelf
Registration Statement after the 225-day period or 30-day period, as the case
may be, described in clause (v) above, or the Shelf Registration Statement once
again being effective or the Shelf Registration Statement and the Prospectus
included therein becoming usable in connection with resales of Registrable
Securities, as the case may be, in the case of clause (vi) above, or the
Exchange Offer Registration Statement once again becoming effective or the
Exchange Offer Registration Statement and the Prospectus included therein
becoming usable in connection with resales of Exchange Securities, as the case
may be, in the case of clause (vii) thereof, the interest rate borne by the
Securities from the date of such filing, effectiveness, consummation or
resumption of effectiveness or useability, as the case may be, shall be reduced
to the original interest rate so long as no other Registration Default shall
have occurred and shall be continuing at such time and the Company is otherwise
in compliance with this paragraph; provided, however, that, if after any such
reduction in interest rate, one or more Registration Defaults shall again occur,
the interest rate shall again be increased pursuant to the foregoing provisions.
Anything herein to the contrary notwithstanding, any Holder who was, at the
time the Exchange Offer was pending and consummated, eligible to exchange, and
did not validly tender, its Securities for Exchange Securities in the Exchange
Offer will not be entitled to receive any Additional Interest. For purposes of
clarity, it is hereby acknowledged and agreed that, under current
interpretations of law by the SEC, Initial Purchasers holding unsold allotments
of Securities acquired from the Company are not eligible to participate in the
Exchange Offer.
(f) Specific Enforcement. Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company acknowledges that any failure by
the Company to comply with its obligations under Sections 2(a) and 2(b) hereof
may result in material irreparable injury to the Initial Purchasers, the Holders
or the Participating Broker-Dealers for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, the Initial Purchasers, any Holder
and any
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Participating Broker-Dealer may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2(a) and 2(b).
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or, if
required, Registration Statements, within the time periods specified in
Section 2, on the appropriate form under the 1933 Act, which form (i) shall
be selected by the Company, (ii) shall, in the case of a Shelf Registration
Statement, be available for the sale of the Registrable Securities by the
selling Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith, and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and comply with the provisions of the 1933 Act and
the 1934 Act with respect to the disposition of all Securities covered by
each Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least ten business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is
being filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method elected by the
Majority Holders; (ii) furnish to each Holder of Registrable Securities, to
counsel for the Initial Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder, counsel or underwriter may reasonably
request, including financial statements and schedules and, if such Holder,
counsel or underwriter so requests, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject to the
penultimate paragraph of this Section 3, the Company hereby consents to the
use of the Prospectus, including each preliminary Prospectus, or any
amendment or supplement thereto by each of the Holders and underwriters of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by any Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as
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<PAGE>
any Holder of Registrable Securities covered by a Registration Statement
and each underwriter of an underwritten offering of Registrable Securities
shall reasonably request, to cooperate with the Holders and the
underwriters of any Registrable Securities in connection with any filings
required to be made with the NASD, to keep each such registration or
qualification effective during the period such Registration Statement is
required to be effective and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments or supplements to a Registration Statement or
Prospectus or for additional information after a Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if
between the effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to
such offering cease to be true and correct, (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, (vi) of
the happening of any event or the discovery of any facts during the period
a Shelf Registration Statement is effective which is contemplated in
Section 2(d)(i)(A) or 2(d)(i)(B) or which makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which constitutes an omission to state a material fact
in such Shelf Registration Statement or Prospectus and (vii) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate. Without limitation to any
other provisions of this Agreement, the Company agrees that this Section
3(e) shall also be applicable, mutatis mutandis, with respect to the
Exchange Offer Registration Statement and the Prospectus included therein
to the extent that such Prospectus is being used by Participating
Broker-Dealers as contemplated by Section 3(f);
(f) (A) in the case of an Exchange Offer, (i) include in the Exchange
Offer Registration Statement (A) a "Plan of Distribution" section (which
section shall be reasonably acceptable to Merrill Lynch) covering the use
of the Prospectus included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable Securities for Exchange
Securities for the resale of such Exchange Securities and (B) a statement
to the effect that any such broker-dealers who wish to use the related
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Prospectus in connection with the resale of Exchange Securities acquired as
a result of market-making or other trading activities will be required to
notify the Company to that effect, together with instructions for giving
such notice (which instructions shall include a provision for giving such
notice by checking a box or making another appropriate notation on the
related letter of transmittal) (each such broker-dealer who gives notice to
the Company as aforesaid being hereinafter called a "Notifying
Broker-Dealer"), (ii) furnish to each Notifying Broker-Dealer who desires
to participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in the
Exchange Offer Registration Statement a statement that any broker-dealer
who holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities (a "Participating
Broker-Dealer"), and who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities, (iv) subject to the
penultimate paragraph of this Section 3, the Company hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Notifying
Broker-Dealer in connection with the sale or transfer of Exchange
Securities, and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution
of Exchange Securities. If the undersigned is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to be exchanged
for Exchange Securities were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act;"
(B) to the extent any Notifying Broker-Dealer participates in the
Exchange Offer, (i) the Company shall use its reasonable best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement for
a period of 180 days (subject to extension pursuant to the last paragraph
of this Section 3) following the last date on which exchanges are accepted
pursuant to the Exchange Offer, and (ii) the Company will comply, insofar
as relates to the Exchange Offer Registration Statement, the Prospectus
included therein and the offering and sale of Exchange Securities pursuant
thereto, with its obligations under Section 2(b)(D), the last paragraph of
Section 2(b), Section 3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(o) and 3(p),
and the last two paragraphs of this Section 3 as if all references therein
to a Shelf Registration Statement, the Prospectus included therein and the
Holders of Registrable Securities referred, mutatis mutandis, to the
Exchange Offer Registration Statement, the Prospectus included therein and
the applicable Notifying Broker-Dealers and, for purposes of this Section
3(f), all references in any such
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<PAGE>
paragraphs or sections to the "Majority Holders" shall be deemed to mean,
solely insofar as relates to this Section 3(f), the Notifying
Broker-Dealers who are the Holders of the majority in aggregate principal
amount of the Exchange Securities which are Registrable Securities; and
(C) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) or 3(k) hereof, or take any other
action as a result of this Section 3(f), for a period exceeding 180 days
(subject to extension pursuant to the last paragraph of this Section 3)
after the last date on which exchanges are accepted pursuant to the
Exchange Offer and Notifying Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities and counsel for any
underwriters of Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information;
(h) use its reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder of the withdrawal
of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendments thereto (without
documents incorporated or deemed to be incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and cause such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and in a form eligible for deposit with the Depositary and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request in writing at least one business day prior to
the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts as contemplated by Section 3(e)(vi)
hereof, use its best efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
at the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company agrees to notify each Holder to
16
<PAGE>
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use
of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to furnish each
Holder such number of copies of the Prospectus, as amended or supplemented,
as such Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed or
word-processed certificates for the Exchange Securities or Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(m) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes, if any, to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of the
TIA and (iii) execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, if any, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, the holders of a majority in
principal amount of the Registrable Securities registered pursuant to such
Shelf Registration Statement shall have the right to direct the Company to
effect not more than one underwritten registration and, in connection with
such underwritten registration, the Company shall enter into agreements
(including underwriting agreements or similar agreements) and take all
other customary and appropriate actions (including those reasonably
requested by the holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, in a
manner that is reasonable and customary:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, in form, substance
and scope as are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably requested by such
Holders and underwriters;
(ii) obtain opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, and the Holders of a
majority in principal amount of the Registrable Securities being sold)
addressed to each selling Holder and the underwriters, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
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(iii) obtain "cold comfort" letters and updates thereof with
respect to such Shelf Registration Statement and the Prospectus
included therein, all amendments and supplements thereto and all
documents incorporated or deemed to be incorporated by referenced
therein from the Company's independent certified public accountants
and from the independent certified public accountants for any other
Person or any business or assets whose financial statements are
included or incorporated by reference in the Shelf Registration
Statement, each addressed to the underwriters, and use reasonable best
efforts to have such letters addressed to the selling Holders of
Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten
offerings and such letters to be delivered at the time of the pricing
of such underwritten registration with an update to such letter to be
delivered at the time of closing of such underwritten registration;
(iv) if an underwriting agreement or other similar agreement is
entered into, cause the same to set forth indemnification and
contributions provisions and procedures substantially equivalent to
the indemnification and contributions provisions and procedures set
forth in Section 5 hereof with respect to the underwriters and all
other parties to be indemnified pursuant to Section 5 hereof or such
other indemnification and contributions as shall be satisfactory to
the Company, the applicable underwriters and the Holders of the
majority in principal amount of the Registrable Securities being sold;
and
(v) deliver such other documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings.
The documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be
delivered at the closing under any underwriting or similar agreement as and
to the extent required thereunder. In the case of any such underwritten
offering, the Company shall provide written notice to the Holders of all
Registrable Securities of such underwritten offering at least 30 days prior
to the filing of a prospectus supplement for such underwritten offering.
Such notice shall (x) offer each such Holder the right to participate in
such underwritten offering, (y) specify a date, which shall be no earlier
than 15 days following the date of such notice, by which such Holder must
inform the Company of its intent to participate in such underwritten
offering and (z) include the instructions such Holder must follow in order
to participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available for inspection
by representatives of the Holders of the Registrable Securities and any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, all financial statements and other records,
documents and properties of the Company reasonably requested by any such
Persons, and cause the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested
by any such Persons in connection with a Shelf Registration Statement;
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<PAGE>
(p) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such documents to the Initial Purchasers, and make such changes in any such
documents prior to the filing thereof as the Initial Purchasers or their
counsel may reasonably request; (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such document to the Holders of Registrable Securities, to the Initial
Purchasers, to the underwriter or underwriters, of an underwritten offering
of Registrable Securities, and to counsel for any such Holders, Initial
Purchasers or underwriters, and make such changes in any such document
prior to the filing thereof as the Holders of Registrable Securities, the
Initial Purchasers, any such underwriter or underwriters or any of their
respective counsel may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
documents as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders or any
underwriter, and shall not at any time make any filing of any such document
of which such Holders, the Initial Purchasers on behalf of such Holders,
their counsel or any underwriter shall not have previously been advised and
furnished a copy or to which such Holders, the Initial Purchasers on behalf
of such Holders, their counsel or any underwriter shall reasonably object
within a reasonable time period;
(q) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are then
listed if requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Securities to be rated with the
appropriate rating agencies, if so requested by the Majority Holders of
Registrable Securities or by the underwriter or underwriters of an
underwritten offering, unless the Registrable Securities are already so
rated;
(s) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and, with respect to each
Registration Statement and each post-effective amendment, if any, thereto
and each filing by the Company of an Annual Report on Form 10-K, make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by
19
<PAGE>
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing and require such Holder to agree in writing to be
bound by all provisions of this Agreement applicable to such Holder.
In the case of a Shelf Registration Statement, each Holder agrees and, in
the event that any Participating Broker-Dealer is using the Prospectus included
in the Exchange Offer Registration Statement in connection with the sale of
Exchange Securities pursuant to Section 3(f), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts of the kind described in
Section 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof, such Holder or
Participating Broker-Dealer, as the case may be, will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
receipt by such Holder or Participating Broker-Dealer, as the case may be, of
(i) the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof or (ii) written notice from the Company that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required. If so directed
by the Company, such Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in its possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. Nothing in this paragraph shall prevent the accrual of
Additional Interest on any Securities or Exchange Securities.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall be deemed to have used its reasonable best efforts to keep the
Shelf Registration Statement or, in the case of Section 3(f), the Exchange Offer
Registration Statement, as the case may be, effective during such period of
suspension; provided that (i) such period of suspension shall not exceed the
time periods provided in Section 2(d)(iii) hereof and (ii) the Company shall use
its reasonable best efforts to file and have declared effective (if an
amendment) as soon as practicable thereafter an amendment or supplement to the
Shelf Registration Statement or the Exchange Offer Registration Statement or
both, as the case may be, or the Prospectus included therein and shall extend
the period during which the Shelf Registration Statement or the Exchange Offer
Registration Statement or both, as the case may be, shall be maintained
effective pursuant to this Agreement (and, if applicable, the period during
which Participating Broker-Dealers may use the Prospectus included in the
Exchange Offer Registration Statement pursuant to Section 3(f) hereof) by the
number of days during the period from and including the date of the giving of
such notice to and including the earlier of the date when the Holders or
Participating Broker-Dealers, respectively, shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions and the
effective date of written notice from the Company to the Holders or
Participating Broker-Dealers, respectively, that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required.
4. Underwritten Registrations. If any of the Registrable Securities covered
by any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority
20
<PAGE>
Holders of such Registrable Securities included in such offering and shall be
reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who
participates in an offering of Registrable Securities (each, an "Underwriter")
and each Person, if any, who controls any Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act or any omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or Prospectus (or any
amendment or supplement thereto) or any omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
5(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 5(c) below, the fees and disbursements of counsel chosen
by any indemnified party), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
21
<PAGE>
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with
respect to such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, as the case may be, expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(b) Each Holder, severally but not jointly, agrees to indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
who signed the Registration Statement, each Initial Purchaser, each
Participating Broker-Dealer, each Underwriter and each other selling Holder and
each Person, if any, who controls the Company, any Initial Purchaser, any
Underwriter, any Participating Broker-Dealer or any other selling Holder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. Counsel to the respective
indemnified parties shall be selected as follows: (i) counsel to the Initial
Purchasers and all Persons, if any, who control any Initial Purchasers within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by Merrill Lynch; (ii) counsel to the Company, its directors, each of
its officers who signed the Registration Statement and all Persons, if any, who
control the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall be selected by the Company; (iii) counsel to the
Holders (other than any Initial Purchasers or Participating Broker-Dealers) and
all Persons, if any, who control any Holders (other than any Initial Purchasers
or Participating Broker-Dealers) within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall be selected by the Holders who held or
hold, as the case may be, a majority in aggregate principal amount of the
Registrable Securities held by all such Holders; (iv) counsel to the
Underwriters of any particular offering of Registrable Securities and all
Persons, if any, who control any such Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by such
Underwriters; and (v) counsel to the Participating Broker-Dealers (other than
any Initial Purchasers) and all Persons, if any, who control any such
Participating Broker-Dealer within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall be selected by the Participating Broker-Dealers
who held
22
<PAGE>
or hold, as the case may be, a majority in aggregate principal amount of the
Exchange Securities referred to in Section 3(f) hereof held by all such
Participating Broker-Dealers. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party or parties be liable for (A) the fees and expenses of more
than one counsel (in addition to any local counsel) separate from the
indemnifying parties' own counsel for all Initial Purchasers and all other
Persons referred to in clause (i) of this paragraph, (B) the fees and expenses
of more than one counsel (in addition to any local counsel) separate from the
indemnifying parties' own counsel for the Company and all other Persons referred
to in clause (ii) of this paragraph, (C) the fees and expenses of more than one
counsel (in addition to any local counsel) separate from the indemnifying
parties' own counsel for all Holders (other than any Initial Purchasers or
Participating Broker-Dealers) and all other Persons referred to in clause (iii)
of this paragraph, (D) the fees and expenses of more than one counsel (in
addition to any local counsel) separate from the indemnifying parties' own
counsel for all Underwriters of any particular offering of Registrable
Securities and all other Persons referred to in clause (iv) of this paragraph,
and (E) the fees and expenses of more than counsel (in addition to any local
counsel) separate from the indemnifying parties' own counsel for all
Participating Broker-Dealers (other than any Initial Purchasers) and all other
Persons referred to in clause (v) of this paragraph, in each case 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. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 5 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
5(a)(ii) effected without its written consent if such indemnifying party (x)
reimburses such indemnified party in accordance with such request to the extent
that the indemnifying party in its judgment considers such request to be
reasonable and (y) provides written notice to the indemnified party stating the
reason it deems the unpaid balance unreasonable, in each case no
23
<PAGE>
later than 45 days after receipt by such indemnifying party of the aforesaid
request from the indemnified party.
(e) If the indemnification provided for in this Section 5 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party or parties on the one hand and the indemnified
party or parties on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(f) The Company, the Holders, and the Initial Purchasers agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (e)
above. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 5 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, no Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
Registrable Securities sold by it were offered exceeds the amount of any damages
that such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter
has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each Person, if any, who controls an
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser, Holder, Participating
Broker-Dealer or Underwriter, as the case may be, and each director of the
Company, each officer of the Company who signed the Registrations Statement and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
24
<PAGE>
The respective obligations of the Initial Purchasers, Holders, Participating
Broker-Dealers and Underwriters to contribute pursuant to this Section 5 are
several in proportion to the principal amount of Securities purchased by them
and not joint.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser, Holder, Participating Broker-Dealer or Underwriter or any Person
controlling any Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, or by or on behalf of the Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities or Exchange Securities
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file all reports required to be filed by it under Section
13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports, it will
upon the request of any Holder or beneficial owner of Registrable Securities (i)
make publicly available such information (including, without limitation, the
information specified in Rule 144(c)(2) under the 1933 Act) as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to
be delivered, promptly following a request by any Holder or beneficial owner of
Registrable Securities or any prospective purchaser or transferee designated by
such Holder or beneficial owner, such information (including, without
limitation, the information specified in Rule 144A(d)(4) under the 1933 Act) as
is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii)
take such further action that is reasonable in the circumstances, in each case
to the extent required from time to time to enable such Holder to sell its
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as
such Rule may be amended from time to time, or (z) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder or
beneficial owner of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof;
provided that the Company will not be precluded from entering into any agreement
after the date hereof which may or does result, directly or indirectly, in the
payment of Additional Interest. The rights granted to the Holders hereunder do
not and will not in any way conflict with and are not and will not be
inconsistent with the rights granted to the holders of any of the Company's
other issued and outstanding securities under any other agreements entered into
by the Company or any of its subsidiaries.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has
25
<PAGE>
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder or Participating Broker-Dealer (other than an Initial Purchaser), at the
most current address set forth on the records of the registrar under the
Indenture, (ii) if to an Initial Purchaser, at the most current address given by
such Initial Purchaser to the Company by means of a notice given in accordance
with the provisions of this Section 6(d), which address initially is the address
set forth in the Purchase Agreement; (iii) if to the Company, initially at the
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(d) and (iv) if to any Underwriter, at the most current address given
by such Underwriter to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially shall be the
address set forth in the applicable underwriting agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder and Participating Broker-Dealer
shall be a third party beneficiary of the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder. Each Holder, by its acquisition of Securities, shall be
deemed to have agreed to the provisions of Section 5(b) hereof.
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<PAGE>
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Restriction on Resales. If (i) the Company or any of its subsidiaries
or affiliates (as defined in Rule 144 under the 1933 Act) shall redeem, purchase
or otherwise acquire any Registrable Security or any Exchange Security which is
a "restricted security" within the meaning of Rule 144 under the 1933 Act, the
Company will deliver or cause to be delivered such Registrable Security or
Exchange Security, as the case may be, to the Trustee for cancellation and
neither the Company nor any of its subsidiaries or affiliates will hold or
resell such Registrable Security or Exchange Security or issue any new Security
or Exchange Security to replace the same.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[SIGNATURE PAGE FOLLOWS]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SUPERVALU INC.
By: /s/
----------------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
U.S. BANCORP PIPER JAFFRAY INC.
CHASE SECURITIES INC.
FIRST UNION CAPITAL MARKETS CORP.
McDONALD INVESTMENTS INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/
--------------------------------------
Name:
Title:
<PAGE>
EXHIBIT 4.5
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of September 17, 1999
among
SUPERVALU INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
U.S. BANCORP PIPER JAFFRAY INC.
BANC ONE CAPITAL MARKETS, INC.
DEUTSCHE BANK SECURITIES INC.
WACHOVIA SECURITIES, INC.
as the Initial Purchasers
- --------------------------------------------------------------------------------
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of September 17,
1999 among SUPERVALU INC., a Delaware corporation (the "Company"), and MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GOLDMAN, SACHS & CO., SALOMON SMITH
BARNEY INC., U.S. BANCORP PIPER JAFFRAY INC., BANC ONE CAPITAL MARKETS, INC.,
DEUTSCHE BANK SECURITIES INC. and WACHOVIA SECURITIES, INC. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated September
14, 1999 by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $250,000,000 aggregate principal amount of the Company's 7 5/8%
Notes due 2004 (the "Securities"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to the
Initial Purchasers' obligations thereunder, the Company has agreed to provide to
the Initial Purchasers and their respective direct and indirect transferees and
assigns the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Closing Time" shall mean September 17, 1999.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, including any agent thereof; provided,
however, that any such depositary must at all times have an address in the
Borough of Manhattan, The City of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
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"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) covering the Registrable Securities, and all amendments
and supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"Exchange Securities" shall mean the 7 5/8% Notes due 2004 issued by
the Company under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last
date to which interest has been paid or duly provided for on the Securities
or, if no such interest has been paid or duly provided for, from the
Interest Accrual Date, (ii) provisions relating to an increase in the
stated rate of interest thereon upon the occurrence of a Registration
Default shall be eliminated, (iii) the transfer restrictions and legends
relating to restrictions on ownership and transfer thereof as a result of
the issuance of the Securities without registration under the 1933 Act
shall be eliminated, (iv) the denominations thereof shall be $1,000 and
integral multiples of $1,000) and (v) all of the Exchange Securities will
be represented by one or more global Exchange Securities in book-entry form
unless exchanged for Exchange Securities in definitive certificated form
under the circumstances provided in the Indenture to be offered to Holders
of Registrable Securities in exchange for Registrable Securities pursuant
to the Exchange Offer.
"Holders" shall mean (i) the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their respective successors,
assigns and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and (ii) each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities.
"Indenture" shall mean the Indenture dated as of July 1, 1987, as
amended and supplemented by the First Supplemental Indenture dated as of
August 1, 1990, the Second Supplemental Indenture dated as of October 1,
1992, the Third Supplemental Indenture dated as of September 1, 1995, the
Fourth Supplemental Indenture dated as of August 4, 1999 and the Fifth
Supplemental Indenture dated as of September 17, 1999, each between the
Company and Bankers Trust Company, as trustee, as the same may be further
amended or supplemented from time to time in accordance with the terms
thereof.
"Interest Accrual Date" means September 17, 1999.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding, excluding
Exchange Securities referred to in clause (ii) of the definition of
"Holders" above; provided that whenever the consent or approval of Holders
of a specified percentage of Registrable Securities or Exchange Securities
is required hereunder, Registrable Securities and Exchange
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Securities held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the 1933 Act) shall be disregarded in determining
whether such consent or approval was given by the Holders of such required
percentage.
"Merrill Lynch" shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated and its successors.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notifying Broker-Dealer" shall have the meaning set forth in Section
3(f).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Person" shall mean an individual, partnership, joint venture, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated or deemed to be incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that any Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities
shall have been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding, (iv) such Securities have
been exchanged for Exchange Securities which have been registered pursuant
to the Exchange Offer Registration Statement upon consummation of the
Exchange Offer unless, in the case of any Exchange Securities referred to
in this clause (iv), such Exchange Securities are held by Participating
Broker-Dealers or otherwise are not freely tradable without any limitations
or restrictions under the 1933 Act (in which case such Exchange Securities
will be deemed to be Registrable Securities until such time as such
Exchange Securities are sold to a purchaser in whose hands such Exchange
Securities are freely tradeable without any limitations or restrictions
under the 1933 Act) or (v) such Securities have been exchanged for Private
Exchange Securities pursuant to the Registration Rights Agreement (in which
case such Private Exchange Securities will be deemed to be Registrable
Securities until
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such time as such Private Exchange Securities are sold to a purchaser in
whose hands such Private Exchange Securities are freely tradeable without
any limitation or restrictions under the 1933 Act).
"Registration Default" shall have the meaning set forth in Section
2(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state or other securities or blue sky laws and compliance
with the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with qualification of
any of the Exchange Securities or Registrable Securities under state or
other securities or blue sky laws and any filing with and review by the
NASD), (iii) all expenses of any Persons in preparing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements, certificates representing the Securities or Exchange Securities
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses incurred
in connection with the listing, if any, of any of the Securities, Private
Exchange Securities (if any) or Exchange Securities on any securities
exchange or exchanges or on any quotation system, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel for
the Company and the fees and expenses of independent public accountants for
the Company or for any other Person, business or assets whose financial
statements are included in any Registration Statement or Prospectus,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (viii) the fees
and expenses of a "qualified independent underwriter" as defined by Conduct
Rule 2720 of the NASD (if required by the NASD rules) and the fees and
disbursements of its counsel, (ix) the fees and expenses of the Trustee,
any registrar, any depositary, any paying agent, any escrow agent or any
custodian, in each case including fees and disbursements of their
respective counsel, and (x) in the case of an underwritten offering, any
fees and disbursements of the underwriters customarily paid by issuers or
sellers of securities and the fees and expenses of any special experts
retained by the Company in connection with any Registration Statement but
excluding (except as otherwise provided herein) fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company relating to any offering of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement (including, without
limitation, any Exchange Offer Registration Statement and any Shelf
Registration Statement), and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
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"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities or Private
Exchange Securities (if any), as the case may be, on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"Trustee" shall mean the trustee with respect to the Securities, the
Private Exchange Securities (if any) and the Exchange Securities under the
Indenture.
For purposes of this Agreement, (i) all references in this Agreement to any
Registration Statement, preliminary prospectus or Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval
system; (ii) all references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
any Registration Statement, preliminary prospectus or Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Registration Statement,
preliminary prospectus or Prospectus, as the case may be; (iii) all references
in this Agreement to amendments or supplements to any Registration Statement,
preliminary prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated or deemed to be
incorporated by reference in such Registration Statement, preliminary prospectus
or Prospectus, as the case may be; (iv) all references in this Agreement to Rule
144, Rule 144A, Rule 405 or Rule 415 under the 1933 Act, and all references to
any sections or subsections thereof or terms defined therein, shall in each case
include any successor provisions thereto; and (v) all references in this
Agreement to days (but not to business days) mean calendar days.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. The Company shall (A) file with the SEC on
or prior to the 135th day after the Closing Time an Exchange Offer Registration
Statement covering the offer by the Company to the Holders to exchange all of
the Registrable Securities for a like aggregate principal amount of Exchange
Securities, (B) use its reasonable best efforts to cause such Exchange Offer
Registration Statement to be declared effective by the SEC no later than the
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180th day after the Closing Time, (C) use its reasonable best efforts to cause
such Registration Statement to remain effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts to consummate the
Exchange Offer no later than 45 days after the effective date of the Exchange
Offer Registration Statement. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for Exchange Securities (assuming
that such Holder is not an affiliate of the Company within the meaning of Rule
405 under the 1933 Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing such
Exchange Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act or under the
securities or blue sky laws of the states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) promptly mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20 business days
(or longer if required by applicable law) after the date notice thereof is
mailed to the Holders and, during the Exchange Offer, offer to all Holders
who are legally eligible to participate in the Exchange Offer the
opportunity to exchange their Registrable Securities for Exchange
Securities;
(iii) use the services of a depositary with an address in the Borough
of Manhattan, The City of New York for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at any
time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the Prospectus or the related letter of
transmittal or related documents a telegram, telex, facsimile transmission
or letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement that such
Holder is withdrawing its election to have such Securities exchanged; and
(v) otherwise comply in all material respects with all applicable laws
relating to the Exchange Offer.
If, at or prior to the consummation of the Exchange Offer, any of the
Initial Purchasers holds any Securities acquired by it and having the status of
an unsold allotment in the initial distribution, the Company shall, upon the
request of any such Initial Purchaser, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial
Purchaser in exchange for such Securities a like principal amount of debt
securities of the Company that are identical (except that such debt securities
shall be subject to transfer restrictions and shall bear a legend relating to
restrictions on ownership and transfer as a result of
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the issuance thereof without registration under the 1933 Act, shall provide for
the payment of Additional Interest and shall be issuable in denominations of
$100,000 in integral multiples of $1,000 in excess thereof) to the Exchange
Securities (the "Private Exchange Securities"). The Company shall use its
reasonable best effort to have the Private Exchange Securities bear the same
CUSIP number as the Exchange Securities and, if unable to do so, the Company
will, at such time as any Private Exchange Security ceases to be a "restricted
security" within the meaning of Rule 144 under the 1933 Act, permit any such
Private Exchange Security to be exchanged for a like principal amount of
Exchange Securities. The Company shall not have any liability under this
Agreement solely as a result of any such Private Exchange Securities not bearing
the same CUSIP number as the Exchange Securities.
The Exchange Securities and the Private Exchange Securities (if any) shall
be issued under the Indenture, which shall be qualified under the TIA. The
Indenture shall provide that the Exchange Securities, the Private Exchange
Securities (if any) and the Securities shall vote and consent together on all
matters as a single class and shall constitute a single series of debt
securities issued under the Indenture.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities to each Holder of Registrable Securities so accepted for
exchange equal in principal amount to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and such Private Exchange Security (if
any) will accrue from the last date on which interest was paid or duly provided
for on the Securities surrendered in exchange therefor or, if no interest has
been paid or duly provided for on such Securities, from the Interest Accrual
Date. The Exchange Offer shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any exchange by a Holder, does not
violate any applicable law or any applicable interpretation of the staff of the
SEC, (ii) that no action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency with respect to the
Exchange Offer which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer, and (iii)
that the Holders tender the Registrable Securities to the Company in accordance
with the Exchange Offer. Each Holder of Registrable Securities (other than
Participating Broker-Dealers) who wishes to exchange such Registrable Securities
for Exchange Securities in the Exchange Offer will be required to represent that
(i) it is not an affiliate (as defined in Rule 405 under the 1933 Act) of the
Company, (ii) any Exchange Securities to be received by it will be acquired in
the ordinary course of business and (iii) it has no arrangement
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with any Person to participate in the distribution (within the meaning of the
1933 Act) of the Exchange Securities, and shall be required to make such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or another
appropriate form under the 1933 Act available. To the extent permitted by law,
the Company shall inform the Initial Purchasers of the names and addresses of
the Holders of Securities to whom the Exchange Offer is made and, to the extent
such information is available to the Company, the names and addresses of the
beneficial owners of such Securities, and the Initial Purchasers shall have the
right to contact such Holders and beneficial owners and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law or applicable
interpretations thereof by the staff of the SEC, the Company is not permitted to
effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if for
any other reason (A) the Exchange Offer Registration Statement is not declared
effective within 180 days following the Closing Time or (B) the Exchange Offer
is not consummated within 45 days after effectiveness of the Exchange Offer
Registration Statement (provided that if the Exchange Offer Registration
Statement shall be declared effective after such 180-day period or if the
Exchange Offer shall be consummated after such 45-day period, then the Company's
obligations under this clause (ii) arising from the failure of the Exchange
Offer Registration Statement to be declared effective within such 180-day period
or the failure of the Exchange Offer to be consummated within such 45-day
period, respectively, shall terminate), or (iii) if any Holder (other than an
Initial Purchaser holding Securities acquired directly from the Company) is not
eligible to participate in the Exchange Offer or elects to participate in the
Exchange Offer but does not receive Exchange Securities which are freely
tradeable without any limitations or restrictions under the 1933 Act or (iv)
upon the request of any of the Initial Purchasers within 90 days following the
consummation of the Exchange Offer (provided that, in the case of this clause
(iv), such Initial Purchaser shall hold Registrable Securities (including,
without limitation, Private Exchange Securities) that it acquired directly from
the Company), the Company shall, at its cost:
(A) as promptly as practicable, but no later than (a) the 180th day
after the Closing Time or (b) the 60th day after any such filing obligation
arises, whichever is later, file with the SEC a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by
the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Securities
and set forth in such Shelf Registration Statement;
(B) use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC as promptly as practicable,
but in no event later than the 225th day after the Closing Time (or, in the
case of a request by any of the Initial Purchasers pursuant to clause (iv)
above, within 30 days after such request). In the event that the Company is
required to file a Shelf Registration Statement pursuant to clause (iii) or
(iv) above, the Company shall file and use its reasonable best efforts to
have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by such Holder
or such Initial Purchaser, as applicable;
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(C) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required, in
order to permit the Prospectus forming part thereof to be usable by Holders
for a period of two years after the latest date on which any Securities are
originally issued by the Company (subject to extension pursuant to the last
paragraph of Section 3) or, if earlier, when all of the Registrable
Securities covered by such Shelf Registration Statement (i) have been sold
pursuant to the Shelf Registration Statement in accordance with the
intended method of distribution thereunder, (ii) become eligible for resale
pursuant to Rule 144(k) under the 1933 Act or (iii) cease to be Registrable
Securities; and
(D) notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any supplements
thereto comply in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration
Statement and any amendment or supplement to such Prospectus does not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, clauses (ii) and (iii) shall not apply to any statement in or
omission from a Shelf Registration Statement or a Prospectus made in
reliance upon and conformity with information relating to any Initial
Purchaser, Holder, Participating Broker-Dealer or underwriter of
Registrable Securities furnished to the Company in writing by such Initial
Purchaser, Holder, Participating Broker-Dealer or underwriter,
respectively, expressly for use in such Shelf Registration Statement or
Prospectus.
The Company shall not permit any securities other than Registrable
Securities to be included in any Shelf Registration Statement without the prior
written consent of Merrill Lynch, which consent shall not be unreasonably
withheld. The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use its reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and 2(b) and, in the case of any
Shelf Registration Statement, will reimburse the Holders or the Initial
Purchasers for the reasonable fees and disbursements of one counsel (in addition
to any local counsel) designated in writing by the Majority Holders (or, if a
Shelf Registration Statement if filed solely pursuant to clause (iv) of the
first paragraph of Section 2(b), designated by the Initial Purchasers) to act as
counsel for the Holders of the Registrable Securities in connection therewith.
Each Holder shall pay all fees and disbursements of its counsel other than as
set forth in the preceding sentence or in the definition of Registration
Expenses and all underwriting discounts and commissions and transfer taxes, if
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any, relating to the sale or disposition of such Holder's Registrable Securities
pursuant to a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or any Shelf
Registration Statement, as the case may be, to become, or to remain,
effective during the requisite periods set forth herein if the Company
voluntarily takes any action that could reasonably be expected to result in
any such Registration Statement not being declared effective or remaining
effective or in the Holders of Registrable Securities (including, under the
circumstances contemplated by Section 3(f) hereof, Exchange Securities)
covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company in
good faith and for valid business reasons (but not including avoidance of
the Company's obligations hereunder), including the acquisition or
divestiture of assets or a material corporate transaction or event so long
as the Company promptly complies with the notification requirements of
Section 3(k) hereof, if applicable. Nothing in this paragraph shall prevent
the accrual of Additional Interest on any Securities or Exchange
Securities.
(ii) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
shall not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to a
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement shall be deemed not to have been
effective during the period of such interference until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
(iii) During any 365-day period, the Company may, by notice as
described in Section 3(e), suspend the availability of a Shelf Registration
Statement (and, if the Exchange Offer Registration Statement is being used
in connection with the resale of Exchange Securities by Participating
Broker-Dealers as contemplated by Section 3(f), the Exchange Offer
Registration Statement) and the use of the related Prospectus for up to two
periods of up to 45 consecutive days each (except for the consecutive
45-day period immediately prior to final maturity of the Securities), but
no more than an aggregate of 90 days during any 365-day period, upon the
happening of any event or the discovery of any fact referred to in Section
3(e)(vi), but subject to compliance by the Company with its obligations
under the last paragraph of Section 3.
(e) Increase in Interest Rate. In the event that:
(i) the Exchange Offer Registration Statement is not filed with the
SEC on or prior to the 135th day following the Closing Time, or
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(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day following the Closing
Time, or
(iii) the Exchange Offer is not consummated on or prior to the 45th
day following the effective date of the Exchange Offer Registration
Statement, or
(iv) if required, a Shelf Registration Statement is not filed with the
SEC on or prior to (A) the 180th day following the Closing Time or (B) the
60th day after the filing obligation arises, whichever is later, or
(v) if required, a Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Closing Time (or, if a
Shelf Registration Statement is required to be filed upon the request of
any Initial Purchaser, within 30 days after such request), or
(vi) a Shelf Registration Statement is declared effective by the SEC
but such Shelf Registration Statement ceases to be effective or such Shelf
Registration Statement or the Prospectus included therein ceases to be
usable in connection with resales of Registrable Securities for any reason
and either (A) the aggregate number of days in any consecutive 365-day
period for which the Shelf Registration Statement or such Prospectus shall
not be effective or usable exceeds 90 days, (B) the Shelf Registration
Statement or such Prospectus shall not be effective or usable for more than
two periods (regardless of duration) in any consecutive 365-day period or
(C) the Shelf Registration Statement or such Prospectus shall not be
effective or usable for a period of more than 45 consecutive days, or
(vii) the Exchange Offer Registration Statement is declared effective
by the SEC but, if the Exchange Offer Registration Statement is being used
in connection with the resale of Exchange Securities as contemplated by
Section 3(f)(B) of this Agreement, the Exchange Offer Registration
Statement ceases to be effective or the Exchange Offer Registration
Statement or the Prospectus included therein ceases to be usable in
connection with resales of Exchange Securities for any reason during the
180-day period referred to in Section 3(f)(B) of this Agreement (as such
period may be extended pursuant to the last paragraph of Section 3 of this
Agreement) and either (A) the aggregate number of days in any consecutive
365-day period for which the Exchange Offer Registration Statement or such
Prospectus shall not be effective or usable exceeds 90 days, (B) the
Exchange Offer Registration Statement or such Prospectus shall not be
effective or usable for more than two periods (regardless of duration) in
any consecutive 365-day period or (C) the Exchange Offer Registration
Statement or the Prospectus shall not be effective or usable for a period
of more than 45 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by the Registrable Securities shall be increased ("Additional Interest") by
one-quarter of one percent (0.25%) per annum immediately following such 135-day
period in the case of clause (i) above, immediately following such 180-day
period in the case of clause (ii) above, immediately following such 45-day
period in the case of clause (iii) above, immediately following any such 180-day
period or 60-day period,
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whichever ends later, in the case of clause (iv) above, immediately following
any such 225-day period or 30-day period, whichever ends first, in the case of
clause (v) above, immediately following the 90th day in any consecutive 365-day
period, as of the first day of the third period in any consecutive 365-day
period or immediately following the 45th consecutive day, whichever occurs
first, that a Shelf Registration Statement shall not be effective or a Shelf
Registration Statement or the Prospectus included therein shall not be usable as
contemplated by clause (vi) above, or immediately following the 90th day in any
consecutive 365-day period, as of the first day of the third period in any
consecutive 365-day period or immediately following the 45th consecutive day,
whichever occurs first, that the Exchange Offer Registration Statement shall not
be effective or the Exchange Offer Registration Statement or the Prospectus
included therein shall not be usable as contemplated by clause (vii) above,
which rate will be increased by an additional one-quarter of one percent (0.25%)
per annum immediately following each 90-day period that any Additional Interest
continues to accrue under any circumstances; provided that the aggregate
increase in such annual interest rate may in no event exceed one-half of one
percent (0.50%) per annum. Upon the filing of the Exchange Offer Registration
Statement after the 135-day period described in clause (i) above, the
effectiveness of the Exchange Offer Registration Statement after the 180-day
period described in clause (ii) above, the consummation of the Exchange Offer
after the 45-day period described in clause (iii) above, the filing of the Shelf
Registration Statement after the 180-day period or 60-day period day, as the
case may be, described in clause (iv) above, the effectiveness of a Shelf
Registration Statement after the 225-day period or 30-day period, as the case
may be, described in clause (v) above, or the Shelf Registration Statement once
again being effective or the Shelf Registration Statement and the Prospectus
included therein becoming usable in connection with resales of Registrable
Securities, as the case may be, in the case of clause (vi) above, or the
Exchange Offer Registration Statement once again becoming effective or the
Exchange Offer Registration Statement and the Prospectus included therein
becoming usable in connection with resales of Exchange Securities, as the case
may be, in the case of clause (vii) thereof, the interest rate borne by the
Securities from the date of such filing, effectiveness, consummation or
resumption of effectiveness or useability, as the case may be, shall be reduced
to the original interest rate so long as no other Registration Default shall
have occurred and shall be continuing at such time and the Company is otherwise
in compliance with this paragraph; provided, however, that, if after any such
reduction in interest rate, one or more Registration Defaults shall again occur,
the interest rate shall again be increased pursuant to the foregoing provisions.
Anything herein to the contrary notwithstanding, any Holder who was, at the
time the Exchange Offer was pending and consummated, eligible to exchange, and
did not validly tender, its Securities for Exchange Securities in the Exchange
Offer will not be entitled to receive any Additional Interest. For purposes of
clarity, it is hereby acknowledged and agreed that, under current
interpretations of law by the SEC, Initial Purchasers holding unsold allotments
of Securities acquired from the Company are not eligible to participate in the
Exchange Offer.
(f) Specific Enforcement. Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company acknowledges that any failure by
the Company to comply with its obligations under Sections 2(a) and 2(b) hereof
may result in material irreparable injury to the Initial Purchasers, the Holders
or the Participating Broker-Dealers for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, the Initial Purchasers, any Holder
and any
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Participating Broker-Dealer may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2(a) and 2(b).
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or, if
required, Registration Statements, within the time periods specified in
Section 2, on the appropriate form under the 1933 Act, which form (i) shall
be selected by the Company, (ii) shall, in the case of a Shelf Registration
Statement, be available for the sale of the Registrable Securities by the
selling Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith, and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and comply with the provisions of the 1933 Act and
the 1934 Act with respect to the disposition of all Securities covered by
each Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least ten business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is
being filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method elected by the
Majority Holders; (ii) furnish to each Holder of Registrable Securities, to
counsel for the Initial Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder, counsel or underwriter may reasonably
request, including financial statements and schedules and, if such Holder,
counsel or underwriter so requests, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject to the
penultimate paragraph of this Section 3, the Company hereby consents to the
use of the Prospectus, including each preliminary Prospectus, or any
amendment or supplement thereto by each of the Holders and underwriters of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by any Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as
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<PAGE>
any Holder of Registrable Securities covered by a Registration Statement
and each underwriter of an underwritten offering of Registrable Securities
shall reasonably request, to cooperate with the Holders and the
underwriters of any Registrable Securities in connection with any filings
required to be made with the NASD, to keep each such registration or
qualification effective during the period such Registration Statement is
required to be effective and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments or supplements to a Registration Statement or
Prospectus or for additional information after a Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if
between the effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to
such offering cease to be true and correct, (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, (vi) of
the happening of any event or the discovery of any facts during the period
a Shelf Registration Statement is effective which is contemplated in
Section 2(d)(i)(A) or 2(d)(i)(B) or which makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which constitutes an omission to state a material fact
in such Shelf Registration Statement or Prospectus and (vii) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate. Without limitation to any
other provisions of this Agreement, the Company agrees that this Section
3(e) shall also be applicable, mutatis mutandis, with respect to the
Exchange Offer Registration Statement and the Prospectus included therein
to the extent that such Prospectus is being used by Participating
Broker-Dealers as contemplated by Section 3(f);
(f) (A) in the case of an Exchange Offer, (i) include in the Exchange
Offer Registration Statement (A) a "Plan of Distribution" section (which
section shall be reasonably acceptable to Merrill Lynch) covering the use
of the Prospectus included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable Securities for Exchange
Securities for the resale of such Exchange Securities and (B) a statement
to the effect that any such broker-dealers who wish to use the related
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<PAGE>
Prospectus in connection with the resale of Exchange Securities acquired as
a result of market-making or other trading activities will be required to
notify the Company to that effect, together with instructions for giving
such notice (which instructions shall include a provision for giving such
notice by checking a box or making another appropriate notation on the
related letter of transmittal) (each such broker-dealer who gives notice to
the Company as aforesaid being hereinafter called a "Notifying
Broker-Dealer"), (ii) furnish to each Notifying Broker-Dealer who desires
to participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in the
Exchange Offer Registration Statement a statement that any broker-dealer
who holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities (a "Participating
Broker-Dealer"), and who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities, (iv) subject to the
penultimate paragraph of this Section 3, the Company hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Notifying
Broker-Dealer in connection with the sale or transfer of Exchange
Securities, and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution
of Exchange Securities. If the undersigned is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to be exchanged
for Exchange Securities were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act;"
(B) to the extent any Notifying Broker-Dealer participates in the
Exchange Offer, (i) the Company shall use its reasonable best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement for
a period of 180 days (subject to extension pursuant to the last paragraph
of this Section 3) following the last date on which exchanges are accepted
pursuant to the Exchange Offer, and (ii) the Company will comply, insofar
as relates to the Exchange Offer Registration Statement, the Prospectus
included therein and the offering and sale of Exchange Securities pursuant
thereto, with its obligations under Section 2(b)(D), the last paragraph of
Section 2(b), Section 3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(o) and 3(p),
and the last two paragraphs of this Section 3 as if all references therein
to a Shelf Registration Statement, the Prospectus included therein and the
Holders of Registrable Securities referred, mutatis mutandis, to the
Exchange Offer Registration Statement, the Prospectus included therein and
the applicable Notifying Broker-Dealers and, for purposes of this Section
3(f), all references in any such
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<PAGE>
paragraphs or sections to the "Majority Holders" shall be deemed to mean,
solely insofar as relates to this Section 3(f), the Notifying
Broker-Dealers who are the Holders of the majority in aggregate principal
amount of the Exchange Securities which are Registrable Securities; and
(C) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) or 3(k) hereof, or take any other
action as a result of this Section 3(f), for a period exceeding 180 days
(subject to extension pursuant to the last paragraph of this Section 3)
after the last date on which exchanges are accepted pursuant to the
Exchange Offer and Notifying Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities and counsel for any
underwriters of Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information;
(h) use its reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder of the withdrawal
of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendments thereto (without
documents incorporated or deemed to be incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and cause such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and in a form eligible for deposit with the Depositary and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request in writing at least one business day prior to
the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts as contemplated by Section 3(e)(vi)
hereof, use its best efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
at the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company agrees to notify each Holder to
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<PAGE>
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use
of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to furnish each
Holder such number of copies of the Prospectus, as amended or supplemented,
as such Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed or
word-processed certificates for the Exchange Securities or Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(m) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes, if any, to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of the
TIA and (iii) execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, if any, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, the holders of a majority in
principal amount of the Registrable Securities registered pursuant to such
Shelf Registration Statement shall have the right to direct the Company to
effect not more than one underwritten registration and, in connection with
such underwritten registration, the Company shall enter into agreements
(including underwriting agreements or similar agreements) and take all
other customary and appropriate actions (including those reasonably
requested by the holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, in a
manner that is reasonable and customary:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, in form, substance
and scope as are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably requested by such
Holders and underwriters;
(ii) obtain opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, and the Holders of a
majority in principal amount of the Registrable Securities being sold)
addressed to each selling Holder and the underwriters, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
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<PAGE>
(iii) obtain "cold comfort" letters and updates thereof with
respect to such Shelf Registration Statement and the Prospectus
included therein, all amendments and supplements thereto and all
documents incorporated or deemed to be incorporated by referenced
therein from the Company's independent certified public accountants
and from the independent certified public accountants for any other
Person or any business or assets whose financial statements are
included or incorporated by reference in the Shelf Registration
Statement, each addressed to the underwriters, and use reasonable best
efforts to have such letters addressed to the selling Holders of
Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten
offerings and such letters to be delivered at the time of the pricing
of such underwritten registration with an update to such letter to be
delivered at the time of closing of such underwritten registration;
(iv) if an underwriting agreement or other similar agreement is
entered into, cause the same to set forth indemnification and
contributions provisions and procedures substantially equivalent to
the indemnification and contributions provisions and procedures set
forth in Section 5 hereof with respect to the underwriters and all
other parties to be indemnified pursuant to Section 5 hereof or such
other indemnification and contributions as shall be satisfactory to
the Company, the applicable underwriters and the Holders of the
majority in principal amount of the Registrable Securities being sold;
and
(v) deliver such other documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings.
The documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be
delivered at the closing under any underwriting or similar agreement as and
to the extent required thereunder. In the case of any such underwritten
offering, the Company shall provide written notice to the Holders of all
Registrable Securities of such underwritten offering at least 30 days prior
to the filing of a prospectus supplement for such underwritten offering.
Such notice shall (x) offer each such Holder the right to participate in
such underwritten offering, (y) specify a date, which shall be no earlier
than 15 days following the date of such notice, by which such Holder must
inform the Company of its intent to participate in such underwritten
offering and (z) include the instructions such Holder must follow in order
to participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available for inspection
by representatives of the Holders of the Registrable Securities and any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, all financial statements and other records,
documents and properties of the Company reasonably requested by any such
Persons, and cause the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested
by any such Persons in connection with a Shelf Registration Statement;
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(p) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such documents to the Initial Purchasers, and make such changes in any such
documents prior to the filing thereof as the Initial Purchasers or their
counsel may reasonably request; (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such document to the Holders of Registrable Securities, to the Initial
Purchasers, to the underwriter or underwriters, of an underwritten offering
of Registrable Securities, and to counsel for any such Holders, Initial
Purchasers or underwriters, and make such changes in any such document
prior to the filing thereof as the Holders of Registrable Securities, the
Initial Purchasers, any such underwriter or underwriters or any of their
respective counsel may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
documents as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders or any
underwriter, and shall not at any time make any filing of any such document
of which such Holders, the Initial Purchasers on behalf of such Holders,
their counsel or any underwriter shall not have previously been advised and
furnished a copy or to which such Holders, the Initial Purchasers on behalf
of such Holders, their counsel or any underwriter shall reasonably object
within a reasonable time period;
(q) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are then
listed if requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Securities to be rated with the
appropriate rating agencies, if so requested by the Majority Holders of
Registrable Securities or by the underwriter or underwriters of an
underwritten offering, unless the Registrable Securities are already so
rated;
(s) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and, with respect to each
Registration Statement and each post-effective amendment, if any, thereto
and each filing by the Company of an Annual Report on Form 10-K, make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by
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such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing and require such Holder to agree in writing to be
bound by all provisions of this Agreement applicable to such Holder.
In the case of a Shelf Registration Statement, each Holder agrees and, in
the event that any Participating Broker-Dealer is using the Prospectus included
in the Exchange Offer Registration Statement in connection with the sale of
Exchange Securities pursuant to Section 3(f), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts of the kind described in
Section 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof, such Holder or
Participating Broker-Dealer, as the case may be, will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
receipt by such Holder or Participating Broker-Dealer, as the case may be, of
(i) the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof or (ii) written notice from the Company that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required. If so directed
by the Company, such Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in its possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. Nothing in this paragraph shall prevent the accrual of
Additional Interest on any Securities or Exchange Securities.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall be deemed to have used its reasonable best efforts to keep the
Shelf Registration Statement or, in the case of Section 3(f), the Exchange Offer
Registration Statement, as the case may be, effective during such period of
suspension; provided that (i) such period of suspension shall not exceed the
time periods provided in Section 2(d)(iii) hereof and (ii) the Company shall use
its reasonable best efforts to file and have declared effective (if an
amendment) as soon as practicable thereafter an amendment or supplement to the
Shelf Registration Statement or the Exchange Offer Registration Statement or
both, as the case may be, or the Prospectus included therein and shall extend
the period during which the Shelf Registration Statement or the Exchange Offer
Registration Statement or both, as the case may be, shall be maintained
effective pursuant to this Agreement (and, if applicable, the period during
which Participating Broker-Dealers may use the Prospectus included in the
Exchange Offer Registration Statement pursuant to Section 3(f) hereof) by the
number of days during the period from and including the date of the giving of
such notice to and including the earlier of the date when the Holders or
Participating Broker-Dealers, respectively, shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions and the
effective date of written notice from the Company to the Holders or
Participating Broker-Dealers, respectively, that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required.
4. Underwritten Registrations. If any of the Registrable Securities covered
by any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority
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Holders of such Registrable Securities included in such offering and shall be
reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who
participates in an offering of Registrable Securities (each, an "Underwriter")
and each Person, if any, who controls any Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act or any omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or Prospectus (or any
amendment or supplement thereto) or any omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
5(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 5(c) below, the fees and disbursements of counsel chosen
by any indemnified party), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
21
<PAGE>
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with
respect to such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, as the case may be, expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(b) Each Holder, severally but not jointly, agrees to indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
who signed the Registration Statement, each Initial Purchaser, each
Participating Broker-Dealer, each Underwriter and each other selling Holder and
each Person, if any, who controls the Company, any Initial Purchaser, any
Underwriter, any Participating Broker-Dealer or any other selling Holder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. Counsel to the respective
indemnified parties shall be selected as follows: (i) counsel to the Initial
Purchasers and all Persons, if any, who control any Initial Purchasers within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by Merrill Lynch; (ii) counsel to the Company, its directors, each of
its officers who signed the Registration Statement and all Persons, if any, who
control the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall be selected by the Company; (iii) counsel to the
Holders (other than any Initial Purchasers or Participating Broker-Dealers) and
all Persons, if any, who control any Holders (other than any Initial Purchasers
or Participating Broker-Dealers) within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall be selected by the Holders who held or
hold, as the case may be, a majority in aggregate principal amount of the
Registrable Securities held by all such Holders; (iv) counsel to the
Underwriters of any particular offering of Registrable Securities and all
Persons, if any, who control any such Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by such
Underwriters; and (v) counsel to the Participating Broker-Dealers (other than
any Initial Purchasers) and all Persons, if any, who control any such
Participating Broker-Dealer within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall be selected by the Participating Broker-Dealers
who held
22
<PAGE>
or hold, as the case may be, a majority in aggregate principal amount of the
Exchange Securities referred to in Section 3(f) hereof held by all such
Participating Broker-Dealers. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party or parties be liable for (A) the fees and expenses of more
than one counsel (in addition to any local counsel) separate from the
indemnifying parties' own counsel for all Initial Purchasers and all other
Persons referred to in clause (i) of this paragraph, (B) the fees and expenses
of more than one counsel (in addition to any local counsel) separate from the
indemnifying parties' own counsel for the Company and all other Persons referred
to in clause (ii) of this paragraph, (C) the fees and expenses of more than one
counsel (in addition to any local counsel) separate from the indemnifying
parties' own counsel for all Holders (other than any Initial Purchasers or
Participating Broker-Dealers) and all other Persons referred to in clause (iii)
of this paragraph, (D) the fees and expenses of more than one counsel (in
addition to any local counsel) separate from the indemnifying parties' own
counsel for all Underwriters of any particular offering of Registrable
Securities and all other Persons referred to in clause (iv) of this paragraph,
and (E) the fees and expenses of more than counsel (in addition to any local
counsel) separate from the indemnifying parties' own counsel for all
Participating Broker-Dealers (other than any Initial Purchasers) and all other
Persons referred to in clause (v) of this paragraph, in each case 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. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 5 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
5(a)(ii) effected without its written consent if such indemnifying party (x)
reimburses such indemnified party in accordance with such request to the extent
that the indemnifying party in its judgment considers such request to be
reasonable and (y) provides written notice to the indemnified party stating the
reason it deems the unpaid balance unreasonable, in each case no
23
<PAGE>
later than 45 days after receipt by such indemnifying party of the aforesaid
request from the indemnified party.
(e) If the indemnification provided for in this Section 5 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party or parties on the one hand and the indemnified
party or parties on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(f) The Company, the Holders, and the Initial Purchasers agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (e)
above. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 5 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, no Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
Registrable Securities sold by it were offered exceeds the amount of any damages
that such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter
has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each Person, if any, who controls an
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser, Holder, Participating
Broker-Dealer or Underwriter, as the case may be, and each director of the
Company, each officer of the Company who signed the Registrations Statement and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
24
<PAGE>
The respective obligations of the Initial Purchasers, Holders, Participating
Broker-Dealers and Underwriters to contribute pursuant to this Section 5 are
several in proportion to the principal amount of Securities purchased by them
and not joint.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser, Holder, Participating Broker-Dealer or Underwriter or any Person
controlling any Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, or by or on behalf of the Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities or Exchange Securities
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file all reports required to be filed by it under Section
13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports, it will
upon the request of any Holder or beneficial owner of Registrable Securities (i)
make publicly available such information (including, without limitation, the
information specified in Rule 144(c)(2) under the 1933 Act) as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to
be delivered, promptly following a request by any Holder or beneficial owner of
Registrable Securities or any prospective purchaser or transferee designated by
such Holder or beneficial owner, such information (including, without
limitation, the information specified in Rule 144A(d)(4) under the 1933 Act) as
is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii)
take such further action that is reasonable in the circumstances, in each case
to the extent required from time to time to enable such Holder to sell its
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as
such Rule may be amended from time to time, or (z) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder or
beneficial owner of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof;
provided that the Company will not be precluded from entering into any agreement
after the date hereof which may or does result, directly or indirectly, in the
payment of Additional Interest. The rights granted to the Holders hereunder do
not and will not in any way conflict with and are not and will not be
inconsistent with the rights granted to the holders of any of the Company's
other issued and outstanding securities under any other agreements entered into
by the Company or any of its subsidiaries.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has
25
<PAGE>
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder or Participating Broker-Dealer (other than an Initial Purchaser), at the
most current address set forth on the records of the registrar under the
Indenture, (ii) if to an Initial Purchaser, at the most current address given by
such Initial Purchaser to the Company by means of a notice given in accordance
with the provisions of this Section 6(d), which address initially is the address
set forth in the Purchase Agreement; (iii) if to the Company, initially at the
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(d) and (iv) if to any Underwriter, at the most current address given
by such Underwriter to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially shall be the
address set forth in the applicable underwriting agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder and Participating Broker-Dealer
shall be a third party beneficiary of the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder. Each Holder, by its acquisition of Securities, shall be
deemed to have agreed to the provisions of Section 5(b) hereof.
26
<PAGE>
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Restriction on Resales. If (i) the Company or any of its subsidiaries
or affiliates (as defined in Rule 144 under the 1933 Act) shall redeem, purchase
or otherwise acquire any Registrable Security or any Exchange Security which is
a "restricted security" within the meaning of Rule 144 under the 1933 Act, the
Company will deliver or cause to be delivered such Registrable Security or
Exchange Security, as the case may be, to the Trustee for cancellation and
neither the Company nor any of its subsidiaries or affiliates will hold or
resell such Registrable Security or Exchange Security or issue any new Security
or Exchange Security to replace the same.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[SIGNATURE PAGE FOLLOWS]
27
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SUPERVALU INC.
By: /s/
----------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
U.S. BANCORP PIPER JAFFRAY INC.
BANC ONE CAPITAL MARKETS, INC.
DEUTSCHE BANK SECURITIES INC.
WACHOVIA SECURITIES, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/
--------------------------------------
Name: Joel Revill
Title: Vice President
28
<PAGE>
Exhibit 11
SUPERVALU INC.
Computation of Earnings per Common Share
(unaudited)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
Second Quarter Ended Year-to-date Ended
(In thousands, except per share amounts) Sept. 11, 1999 Sept. 12, 1998 Sept. 11, 1999 Sept. 12, 1998
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Earnings per share - basic
Income available to common shareholders $ 45,482 $ 39,900 $ 112,203 $ 91,698
Weighted average shares outstanding 122,483 120,753 120,853 120,645
Earnings per share - basic $.37 $.33 $.93 $.76
Earnings per share - diluted
Income available to common shareholders $ 45,482 $ 39,900 $ 112,203 $ 91,698
Weighted average shares outstanding 122,483 120,753 120,853 120,645
Dilutive impact of options outstanding 1,199 1,425 1,164 1,514
----- ----- ----- -----
Weighted average shares and potential
dilutive shares outstanding 123,682 122,178 122,017 122,159
Earnings per share - dilutive $.37 $.33 $.92 $.75
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Basic earnings per share is calculated using income available to common
shareholders divided by the weighted average of common shares outstanding during
the period. Diluted earnings per share is similar to basic earnings per share
except that the weighted average of common shares outstanding is increased to
include the number of additional common shares that would have been outstanding
if the dilutive potential common shares, such as options, had been issued.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 11, 1999 AND THE CONSOLIDATED
STATEMENT OF EARNINGS FOR THE 28 WEEKS ENDED SEPTEMBER 11, 1999 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> FEB-26-2000
<PERIOD-START> FEB-28-1999
<PERIOD-END> SEP-11-1999
<CASH> 11,257
<SECURITIES> 0
<RECEIVABLES> 571,951
<ALLOWANCES> (30,035)
<INVENTORY> 1,292,503
<CURRENT-ASSETS> 1,975,464
<PP&E> 3,164,986
<DEPRECIATION> (1,223,006)
<TOTAL-ASSETS> 6,068,559
<CURRENT-LIABILITIES> 2,203,494
<BONDS> 1,850,819
0
0
<COMMON> 150,670
<OTHER-SE> 1,664,128
<TOTAL-LIABILITY-AND-EQUITY> 6,068,559
<SALES> 9,435,495
<TOTAL-REVENUES> 9,435,495
<CGS> 8,444,486
<TOTAL-COSTS> 8,444,486
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 5,179
<INTEREST-EXPENSE> 63,009
<INCOME-PRETAX> 227,397
<INCOME-TAX> 115,194
<INCOME-CONTINUING> 112,203
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 112,203
<EPS-BASIC> .93
<EPS-DILUTED> .92
</TABLE>
