PATHMARK STORES, INC.
Common Stock and Warrants
REGISTRATION RIGHTS AGREEMENT
_____ __, 2000
Pathmark Stores, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated in the Debtors' Joint Plan
of Reorganization Under Chapter 11 of the Bankruptcy Code (the "Plan") and the
order, dated August 31, 2000 (and entered by the Clerk of the Bankruptcy Court
on September 7, 2000), of the Bankruptcy Court confirming the Plan, to issue to
each of the holders of Pathmark Notes or Holdings Bonds, including certain of
such holders which are signatories hereto and the funds and accounts managed by
the signatories hereto (the "Initial Holders"), certain shares of the Company's
New Common Stock, (the "Common Stock") and New Warrants, as defined in the Plan
(the "Warrants"). The Company hereby agrees as follows:
1. Shelf Registration. The Company shall take the following actions:
(a) The Company will, at its cost, use its best efforts to file with
the Securities and Exchange Commission (the "Commission") on or as soon as
practicable, but no later than September 27, 2000, following the Effective
Date of the Plan, and have declared effective as soon as practicable
thereafter, a registration statement (the "Shelf Registration Statement")
on an appropriate form under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the offer and sale of Transfer Restricted
Securities (as defined in Section 7) by the Holders (as defined in Section
7 of this Agreement) thereof from time to time on a continuous or delayed
basis in accordance with Rule 415 under the Securities Act or any similar
rule that may be adopted by the Commission; provided, however, that no
Holder (other than the Initial Holders) shall be entitled to have the
Securities (as defined in Section 7 of this Agreement) held by it covered
by such Shelf Registration Statement unless such Holder agrees in writing
to be bound by all of the provisions of this Agreement applicable to such
Holder.
(b) The Company shall use commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the Holders of
the relevant Securities until the later of (i) two (2) years from the date
that the Shelf Registration Statement is declared effective and (ii) the
date on which no Initial Holder would be deemed an affiliate (as used in
the Securities Act) of the Company for a period of three (3) consecutive
months, as reasonably determined by such Initial Holder. Notwithstanding
the foregoing, the Company shall not be required to keep the Shelf
Registration Statement effective after all of the Securities covered by the
Shelf Registration Statement have been sold pursuant
thereto or pursuant to any applicable exemption from the registration
requirements of the Securities Act.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement, and the
related prospectus and any amendment or any supplement thereto, as of the
effective date of the Shelf Registration Statement, or amendment or
supplement thereto, (i) to comply in all material respects, as to all
matters within the Company's control, with the applicable requirements of
the Securities Act and the rules and regulations of the Commission and (ii)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
2. Registration Procedures. In connection with the registration
under the Securities Act contemplated by Section 1 hereof (the "Shelf
Registration"), the following provisions shall apply:
(a) At least three (3) days prior to the filing thereof with the
Commission, the Company shall furnish to the Initial Holders a copy of the
proposed form of the Shelf Registration Statement and each amendment
thereto and each supplement, if any, to the prospectus included therein,
and shall afford the Initial Holders the opportunity to participate in the
preparation of each such document.
(b) The Company shall give written notice to the Holders (which
notice pursuant to clauses (ii) - (v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when the Shelf Registration Statement or any amendment or
supplement thereto has been filed with the Commission and when the
Shelf Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for any additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event as a result of which the
Shelf Registration Statement or the prospectus shall contain an
untrue statement of a material fact or omit a material fact required
to be stated therein, or necessary to
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make the statements therein not misleading (provided, however, that
no notice by the Company shall be required pursuant to this clause
(v) in the event that the Company either promptly files a prospectus
supplement to update the prospectus on a Form 8-K or other Exchange
Act report that is incorporated by reference into the Shelf
Registration Statement, which, in either case, contains the
requisite information with respect to such event that results in
such Shelf Registration Statement no longer containing any untrue
statement of material fact or omitting to state a material fact
necessary to make the statements contained therein not misleading).
(c) The Company shall use its best efforts to obtain the withdrawal
at the earliest possible time of any order suspending the effectiveness of
the Shelf Registration Statement.
(d) The Company shall furnish to each Holder included within the
coverage of the Shelf Registration, without charge, at least one copy of
the Shelf Registration Statement and any post-effective amendment or
supplement thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(e) The Company shall deliver to each Holder of the Securities
included within the coverage of the Shelf Registration, without charge, as
many copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or
supplement thereto as such person may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto included in the Shelf
Registration Statement by each of the selling Holders in connection with
the offering and sale of the Securities covered by such prospectus or any
such amendment or supplement.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration, the Company shall register or qualify or cooperate with
the Holders of Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities for
offer and sale under the securities or "blue sky" laws of such states of
the United States as any Holder reasonably requests in writing and do any
and all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Securities covered by the Shelf
Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where
it is not then so qualified or (ii) take any action which would subject it
to general service of process or to taxation in any jurisdiction where it
is not then so subject.
(g) The Company shall cooperate with the Holders and their
respective counsel to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such Holders'
respective denominations and registered in such names as such Holders may
request a reasonable period of time prior to sales of the Securities
pursuant to the Shelf Registration Statement.
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(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the
Company shall promptly prepare and file a post-effective amendment to the
Shelf Registration Statement or a supplement to the related prospectus and
any other required document so that, as thereafter delivered to the
Holders, the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company notifies the
Holders in accordance with paragraphs (ii) through (v) of Section 2(b)
above to suspend the use of the prospectus until the requisite changes to
the prospectus have been made, then the Holders shall suspend the use of
such prospectus, and the period that the Company is required to keep the
Shelf Registration Statement effective provided for in Section 1(b) above
shall be extended by the number of days from and including the date of the
giving of such notice to and including the date when the Holders shall have
received such amended or supplemented prospectus pursuant to this Section
2(h).
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months, beginning with the first fiscal quarter beginning
after the effective date of the Shelf Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act).
(j) The Company may require each Holder of the Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding such Holder and the distribution of such Securities
as the Company may from time to time reasonably require for inclusion in
the Shelf Registration Statement, and the Company may exclude from such
Shelf Registration Statement the Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such
request.
(k) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take all such other action, if any, as any Holder shall reasonably request
in order to facilitate the disposition of Securities pursuant to the Shelf
Registration in an underwritten offering or otherwise.
(l) The Company shall: (i) make reasonably available for inspection
by the Holders, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant, agent or
professional retained by the Holders, or any such underwriter and not more
than one counsel for the Holders, all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause
the Company's officers, directors, employees, counsels, accountants and
auditors to supply all relevant information reasonably requested by the
Holders or any such underwriter, attorney, accountant, agent or
professional in connection with the Shelf Registration Statement, in each
case as shall be reasonably
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necessary, in the judgment of such Holder or any such underwriter,
attorney, accountant, agent or professional referred to in this paragraph,
to conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated by the Initial Holders and on
behalf of the other parties by counsel designated by and on behalf of such
other parties as described in Section 3 hereof; provided further, however,
that each such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by the Company in writing as being confidential, until such time
as (A) such information becomes a matter of public record (whether by
virtue of its inclusion in such registration statement or otherwise), or
(B) such person shall be required so to disclose such information pursuant
to a subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt prior
written notice of such requirement and the opportunity to contest the same
or seek an appropriate protective order), or (C) such information is
required to be set forth in such registration statement or the prospectus
included therein or in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that such registration
statement, prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(m) The Company, if requested by any Holder of the Securities
registered in the Shelf Registration Statement, shall use its best efforts
to cause (i) its counsel to deliver an opinion and updates thereof relating
to the Securities in customary form addressed to the selling Holders of the
applicable Securities or the managing underwriters, if any, thereof and
dated, in the case of the initial opinion, the effective date of such Shelf
Registration Statement, it being agreed that the matters to be covered by
such opinion shall include, without limitation, the due incorporation and
good standing of the Company and its subsidiaries; the due authorization,
execution and delivery of the relevant agreement of the type referred to in
Section 3(k) hereof; the due authorization and issuance of the Securities;
the absence of material legal or governmental proceedings involving the
Company; the absence of governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the offering and sale of
the Securities or any agreement of the type referred to in Section 3(k)
hereof; the compliance as to form of such Shelf Registration Statement and
any documents incorporated by reference therein with the requirements of
the Securities Act; and, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent post
effective amendment thereto, as the case may be, the absence from such
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein, of any untrue statement of a material fact or the omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of any such
documents, in light of the circumstances existing at the time that such
documents were filed with the Commission under the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), all subject to customary
assumptions and qualifications and otherwise in form and content customary
for similar opinions; (ii) its officers to execute and deliver all
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customary documents and certificates and updates thereof requested by
the selling Holders of their respective Securities or any underwriters of
their respective Securities; and (iii) its independent public accountants
to provide to the selling Holders of their respective Securities and any
underwriter therefor an agreed upon procedure letter or a comfort letter,
as applicable, in each case, in customary form and covering matters of the
type customarily covered in comfort letters in connection with primary
underwritten offerings.
(n) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by the Shelf
Registration Statement contemplated hereby.
3. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 1 and 2 hereof, whether or not the Shelf Registration Statement is
filed or becomes effective, and, shall bear or reimburse the Holders of the
Securities covered thereby for the reasonable fees and disbursements of one firm
of counsel designated by the Holders of a majority of the Securities, excluding
the Warrants, covered thereby to act as counsel for the Holders in connection
therewith.
4. Indemnification.
(a) The Company shall indemnify and hold harmless each Holder and
each person, if any, who controls such Holder within the meaning of the
Exchange Act from and against any losses, claims, damages or liabilities,
joint or several, or any actions in respect thereof (including, but not
limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act, "blue sky" laws
of the states of the United States or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Shelf Registration Statement or any prospectus included therein or
in any amendment or supplement thereto, or arise out of, or are based upon,
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Company shall reimburse, as incurred, each Indemnified
Party for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof. The Company shall not, however, be
liable in any such case to the extent that such loss, claim, damage,
liability or action arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the Shelf
Registration Statement or any prospectus included therein or in any
amendment or supplement thereto or in any preliminary prospectus relating
to the Shelf Registration in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein ("Holder
Information"), except to the extent that any untrue statement or alleged
untrue statement or omission or alleged omission therein results (or is
alleged to have resulted) directly from an error in written information
furnished by the Company to such Holder that was used in the preparation of
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such Holder Information. The Company shall also indemnify underwriters,
selling brokers, dealer managers and similar securities industry
professionals participating in the distribution (in each case as described
in the Shelf Registration Statement), their officers and directors and each
person who controls such persons within the meaning of the Securities Act
or the Exchange Act to the same extent as provided above with respect to
the indemnification of the Holders if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act from and
against any losses, claims, damages, liabilities or actions in respect
thereof to which the Company or any such controlling person may become
subject under the Securities Act, the Exchange Act, "blue sky" laws of the
states of the United States or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or any prospectus included therein or in any
amendment or supplement thereto or in any preliminary prospectus relating
to the Shelf Registration, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with Holder
Information furnished to the Company by or on behalf of such Holder
specifically for inclusion therein, except to the extent that any untrue
statement or alleged untrue statement or omission or alleged omission
therein results (or is alleged to have resulted) directly from an error in
written information furnished by the Company to such Holder that was used
in the preparation of such Holder Information; and, subject to the
limitations set forth immediately preceding this clause, shall reimburse,
as incurred, the Company for any legal or other expenses reasonably
incurred by the Company or any controlling person in connection with
investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any
liability which such Holder may otherwise have to the Company and any of
its controlling persons.
(c) Promptly after receipt by an Indemnified Party under this
Section 4 of notice of the commencement of any action or proceeding
(including a governmental investigation), such Indemnified Party will, if a
claim in respect thereof is to be made against an Indemnifying Party under
this Section 4, notify the Indemnifying Party of the commencement thereof;
but the omission to so notify the Indemnifying Party will not, in any
event, relieve the Indemnifying Party from any obligations to any
Indemnified Party including the indemnification obligation provided in
paragraph (a) or (b) above. In case any such action is brought against any
Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Party (who shall
not, except with the consent of the Indemnified Party, be counsel to the
Indemnifying Party), and after notice from the Indemnifying Party to such
Indemnified Party of its election to assume the defense thereof, the
Indemnifying Party will not be liable to such Indemnified Party under this
Section 4 for any legal or
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other expenses, other than reasonable costs of investigation, subsequently
incurred by such Indemnified Party in connection with the defense thereof.
No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
action in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified
Party unless such settlement includes an unconditional release of such
Indemnified Party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an Indemnified Party, then
each Indemnifying Party shall contribute to the amount paid or payable by
such Indemnified Party as a result of the losses, claims, damages or
liabilities referred to in this Section 4 an amount or additional amount,
as the case may be, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party or parties on the one hand and the
Indemnified Party on the other in connection with the statements or
omissions which resulted in such losses, claims, demands or liabilities as
well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying Party on the one hand or the Indemnified Party on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid to an Indemnified Party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this Section 4
shall be deemed to include any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
action or claim which is the subject of this Section 4. Notwithstanding any
other provision of this Section 4, no Holder shall be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holder from the sale of Securities pursuant to the Shelf
Registration Statement exceeds the amount of damages that such Holder
otherwise would have been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the Securities Act shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
any Indemnified Party.
5. Rules 144 and 144A. The Company shall use its commercially
reasonable efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, it will, upon the request of any
Holder of Transfer Restricted Securities, make publicly available other
information so long as necessary to permit sales of their Securities pursuant to
Rules 144 and 144A. The Company covenants that it will take such further action
as any Holder of Transfer Restricted Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities
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Act within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)). The Company will provide a copy
of this Agreement to prospective purchasers of Transfer Restricted Securities
identified to the Company upon request. Upon the request of any Holder of
Transfer Restricted Securities in connection with that Holder's sale pursuant to
Rule 144 or Rule 144A, the Company shall deliver to such Holder a written
statement as to whether the Company has complied with such requirements.
6. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registration is to be sold in an underwritten
offering, the managing underwriters will be selected by the Holders of a
majority of such Transfer Restricted Securities, excluding the Warrants, to be
included in such offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
7. Definitions: All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Plan.
"Holder" means the Initial Holders and any person or entity to whom
Transfer Restricted Securities are validly transferred by an Initial Holder or a
Holder pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144 promulgated under the Securities Act, in each
case, for so long as they own Transfer Restricted Securities.
"Indemnified Party" means a party entitled to indemnity in
accordance with Section 4.
"Indemnifying Party" means a party obligated to provide indemnity in
accordance with Section 4.
"Securities" means the Common Stock, the Warrants, shares of Common
Stock that a Holder is entitled to receive upon exercise of the Warrants and any
securities issued or issuable with respect to any other Securities by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
"Transfer Restricted Securities" means Securities issuable to the
Initial Holders under the Plan until (i) the date on which such Securities have
been effectively registered under the Securities Act and sold or otherwise
transferred in accordance with the Shelf Registration Statement; (ii) the date
on which such Securities are sold pursuant to Rule 144 under the Securities Act
under circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof is removed or such Securities are
eligible to be sold pursuant to paragraph (k) of Rule 144; or (iii) such
Securities shall cease to be outstanding.
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8. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and with
the written consent of the Holders of 75% of then outstanding Securities
affected by such amendment, modification, supplement, waiver or consent.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission or air courier which guarantees overnight
delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 8(b),
which address initially is, with respect to each Holder, the address of
such Holder to which confirmation of the issuance of Securities to such
Holder was first sent by the Company with copies in like manner as follows:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(2) if to the Company at the Company's address as follows:
Pathmark Stores, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with
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respect to its Securities that is inconsistent with the rights granted to
the Holders herein or that otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and its respective successors and assigns; provided, however, that
no successor or assign may exercise any rights under this Agreement unless
such successor or assign agrees in writing to be bound by the provisions
hereof.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(g) Severability. If 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.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of
which shall together Constitute one and the same instrument.
[Remainder of Page Left Intentionally Blank]
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to Pathmark Stores, Inc. a counterpart hereof,
whereupon this Agreement will become a binding agreement among the Company and
the Initial Holders in accordance with its terms.
Very truly yours,
PATHMARK STORES, INC.
By:
---------------------------------
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed
and accepted as of the date first
above written.
Initial Holders
FIDELITY MANAGEMENT & RESEARCH COMPANY
on behalf of managed funds
By:
----------------------------------------------
Name:
Title:
FIDELITY MANAGEMENT TRUST COMPANY
on behalf of managed accounts
By:
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Name:
Title: