EXHIBIT 10.2
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
THE PENN TRAFFIC COMPANY
AND
THE PURCHASERS NAMED HEREIN
TABLE OF CONTENTS
PAGE
Article I DEFINITIONS......................................................1
Section 1.01 Definitions.............................................1
Article II REGISTRATION RIGHTS..............................................3
Section 2.01 Demand Registration Rights..............................3
Section 2.02 Piggyback Rights........................................5
Section 2.03 Underwritten Offering...................................7
Section 2.04 Form S-3 Registration...................................8
Section 2.05 Sale Procedures.........................................9
Section 2.06 Cooperation by Holders.................................13
Section 2.07 Restrictions on Public Sale by Holders of
Registrable Securities.................................13
Section 2.08 Expenses...............................................13
Section 2.09 Indemnification........................................14
Section 2.10 Rule 144 Reporting.....................................16
Section 2.11 Transfer or Assignment of Registration Rights..........17
Article III MISCELLANEOUS..................................................17
Section 3.01 Communications....................................17
Section 3.02 Successor and Assigns.............................17
Section 3.03 Limitations on Subsequent Registration Rights.....18
Section 3.04 Recapitalization, Exchanges, Etc. Affecting
the Common Stock..................................18
Section 3.05 Specific Performance..............................18
Section 3.06 Counterparts......................................18
Section 3.07 Headings..........................................18
Section 3.08 Governing Law.....................................18
Section 3.09 Consent to Jurisdiction...........................18
Section 3.10 WAIVER OF JURY TRIAL..............................19
Section 3.11 Severability of Provisions........................19
Section 3.12 Entire Agreement..................................19
Section 3.13 Amendment.........................................19
Section 3.14 No Presumption....................................19
Section 3.15 Obligations Limited to Parties to Agreement.......19
Section 3.16 No Required Sale..................................20
Section 3.17 Acknowledgment....................................20
(i)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of December 13, 2007 by and among The Penn Traffic Company, a
Delaware limited liability company ("PENN TRAFFIC"), and each of the Purchasers
set forth in EXHIBIT A (each, a "PURCHASER" and, collectively, the
"PURCHASERS").
WHEREAS, this Agreement is made in connection with the issuance and
sale of the Series A Convertible Preferred Stock, par value $0.01 per share, of
Penn Traffic (the "PREFERRED STOCK") pursuant to the Securities Purchase
Agreement, dated as of the date hereof, by and among Penn Traffic and the
Purchasers (the "PURCHASE AGREEMENT");
WHEREAS, Penn Traffic has agreed to provide the registration and other
rights set forth in this Agreement for the benefit of the Purchasers pursuant
to the Purchase Agreement; and
WHEREAS, it is a condition to the obligations of each Purchaser and
Penn Traffic under the Purchase Agreement that this Agreement be executed and
delivered.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. Capitalized terms used herein without
definition shall have the meanings given to them in the Purchase Agreement. The
terms set forth below are used herein as so defined:
"AGREEMENT" has the meaning specified therefor in the preamble.
"COMMON STOCK" means the common stock, par value $0.01 per share, of
Penn Traffic.
"COMPANY UNDERWRITTEN OFFERING" has the meaning specified therefor in
Section 2.02(a) of this Agreement.
"DEMAND REGISTRATION" has the meaning specified therefor in Section
2.01(a) of this Agreement.
"DEMAND REQUEST" has the meaning specified therefor in Section 2.01(a)
of this Agreement.
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"FORM S-3 DEMAND" has the meaning specified therefor in Section 2.04
of this Agreement.
"HOLDER" means the record holder of any Registrable Securities.
"INCLUDED REGISTRABLE SECURITIES" has the meaning specified therefor
in Section 2.02(a) of this Agreement.
"INITIATING FORM S-3 HOLDER" has the meaning specified therefor in
Section 2.04 of this Agreement.
"INITIATING HOLDERS" has the meaning specified therefor in Section
2.01(a) of this Agreement.
"LOSSES" has the meaning specified therefor in Section 2.09 of this
Agreement.
"MANAGING UNDERWRITER" means, with respect to any Underwritten
Offering, the book-running lead manager of such Underwritten Offering.
"OPT OUT NOTICE" has the meaning specified therefor in Section 2.02(a)
of this Agreement.
"OTHER DEMAND PERSON" has the meaning specified therefor in Section
2.02(a) of this Agreement.
"PENN TRAFFIC" has the meaning specified therefor in the preamble.
"PREFERRED STOCK" has the meaning specified therefor in the recitals
of this Agreement.
"PURCHASE AGREEMENT" has the meaning specified therefor in the
recitals of this Agreement.
"PURCHASED SHARES" means the shares of Preferred Stock purchased by
the Purchasers under the Purchase Agreement.
"PURCHASER" and "PURCHASERS" have the meanings specified therefor in
the preamble of this Agreement.
"REGISTRABLE SECURITIES" means any shares of Common Stock owned at any
time by the Purchasers and the shares of Common Stock issuable upon conversion
of the Purchased Shares. Any Registrable Security will cease to be a
Registrable Security when: (a) a registration statement covering such
Registrable Security is effective and such Registrable Security has been sold
or disposed of pursuant to such effective registration statement; (b) five
years after the SEC Compliant Date; (c) such Registrable Security is held by
Penn Traffic or one of its Subsidiaries; or (d) such Registrable Security has
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been sold in a private transaction in which the transferor's rights under this
Agreement are not assigned to the transferee of such securities.
"REGISTRATION EXPENSES" has the meaning specified therefor in Section
2.08(a) of this Agreement.
"REGISTRATION STATEMENT" means a registration statement filed pursuant
to the Securities Act.
"REQUEST NOTICE" has the meaning specified therefor in Section 2.01(a)
of this Agreement.
"SEC COMPLIANT DATE" means the date after which the Company has become
eligible to file a Registration Statement on Form S-1 (including its ability to
include or incorporate the financial information required therein).
"SELLING EXPENSES" has the meaning specified therefor in Section
2.08(a) of this Agreement.
"SELLING HOLDER" means a Holder who is selling Registrable Securities
pursuant to a registration statement.
"SELLING HOLDER INDEMNIFIED PERSONS" has the meaning specified
therefor in Section 2.09(a) of this Agreement.
"UNDERWRITTEN OFFERING" means an offering (including an offering
pursuant to a Registration Statement) in which Common Stock is sold to an
underwriter on a firm commitment basis for reoffering to the public or an
offering that is a "bought deal" with one or more investment banks.
"VALID BUSINESS REASON" has the meaning specified therefor in Section
2.01(b) of this Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.01 DEMAND REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION. At any time following the 20th day
following the SEC Compliant Date, Holders collectively holding greater than 25%
of the Registrable Securities (or at least $5.0 million of Registrable
Securities (the party or the parties making the request shall be referred to as
the "INITIATING HOLDERS"), may make a written request to Penn Traffic to
register, and Penn Traffic shall register, under the Securities Act (other than
pursuant to a Registration Statement on Form S-4 or S-8 or any successor form
thereto), in accordance with the terms of this Agreement (a "DEMAND
Registration"), the number of Registrable Securities stated in such request (a
"DEMAND REQUEST") then the Company shall, within ten (10) days after receipt of
such Demand Request, give written notice of such request ("REQUEST NOTICE") to
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all Holders. Each Demand Request shall (x) specify the number of Registrable
Securities that the Initiating Holders intend to sell or dispose of, (y) state
the intended method or methods of sale or disposition of the Registrable
Securities and (z) specify the expected price range (net of underwriting
discounts and commissions) acceptable to the Requesting Holders to be received
for such Registrable Securities. Penn Traffic shall not be obligated to effect
more than two such Demand Registrations. The Registration Statement when
effective (including the documents incorporated therein by reference) shall
comply as to form with all applicable requirements of the Securities Act and
the Exchange Act and shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Following receipt of a request for
a Demand Registration, the Company shall:
(i) cause to be filed, as soon as practicable, but in any
event within 60 days of the date of delivery to the Company of the Demand
Request, a Registration Statement covering such Registrable Securities which
the Company has been so requested to register by the Initiating Holders and
other Holders who request to the Company that their Registrable Securities be
registered within 20 days of the mailing of the Request Notice, providing for
the registration under the Securities Act of such Registrable Securities to the
extent necessary to permit the disposition of such Registrable Securities in
accordance with the intended method of distribution specified in such Demand
Request;
(ii) use its commercially reasonable efforts to have such
Registration Statement declared effective by the SEC as soon as practicable
thereafter; and
(iii) refrain from filing any other Registration Statements,
other than pursuant to a Registration Statement on Form S-4 or S-8 (or similar
or successor forms), with respect to any other securities of the Company until
such date which is 180 days following effectiveness of the Registration
Statement filed in response to the Demand Request.
(b) DELAY RIGHTS. If the Company provides a written certificate
signed by the Chief Executive Officer and Chief Financial Officer of the
Company to the Initiating Holders, prior to the time it would otherwise have
been required to file such Registration Statement or take such action pursuant
to this Section 2.01, stating that the Board has determined, in its good faith
judgment, that any registration of Registrable Securities should not be made or
continued because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other material transaction
involving Penn Traffic (a "VALID BUSINESS REASON"), (x) Penn Traffic may
postpone filing a Registration Statement relating to a Demand Registration
until such Valid Business Reason no longer exists, but in no event for more
than 60 days after the date when the Demand Registration was requested and
during such time the Company may not file a Registration Statement for
securities to be issued and sold for its own account or for that of anyone
other than the Holders and (y) in case a Registration Statement has been filed
relating to a Demand Registration, if the Valid Business Reason has not
resulted from actions taken by Penn Traffic, upon the approval of a majority of
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the Board of Directors, may postpone amending or supplementing such
Registration Statement (in which case, if the Valid Business Reason no longer
exists or if more than 60 days have passed since such postponement, the
Initiating Holders may request the prompt amendment or supplement of such
Registration Statement or request a new Demand Registration (which request
shall not be counted as an additional Demand Registration for purposes of
Section 2.01(a)). Penn Traffic shall give written notice to all Holders of its
determination to postpone a Registration Statement and of the fact that the
Valid Business Reason for such postponement no longer exists, in each case,
promptly after the occurrence thereof. Notwithstanding anything to the contrary
contained herein, Penn Traffic may not postpone or withdraw a filing under this
Section 2.01(b) due to a Valid Business Reason more than once in any 12 month
period. The request for a Demand Registration by the Initiating Holders shall
state the amount of the Registrable Securities proposed to be sold and the
intended method of disposition thereof.
(c) EFFECTIVE DEMAND REGISTRATION. Penn Traffic shall use its
commercially reasonable efforts to cause any such Demand Registration to become
effective as promptly as practicable but in no event later than 90 days after
it receives a request under Section 2.01(a) hereof , and to remain continuously
effective for the lesser of (i) the period during which all Registrable
Securities registered in the Demand Registration are sold and (ii) 180 days;
PROVIDED, HOWEVER, that a registration shall not constitute a Demand
Registration if (A) a Registration Statement with respect thereto has not
become effective and/or remained effective in compliance with the provisions of
the Securities Act with respect to the disposition of all Registrable
Securities covered by such Registration Statement until such time as all of
such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the Holders thereof set forth in such
Registration Statement; (B) after such Demand Registration has become
effective, such registration or the related offer, sale or distribution of
Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Initiating
Holders and such interference is not thereafter eliminated, (C) if the offering
of Registrable Securities is not consummated for any reason not attributable to
the Initiating Holders, including, without limitation, if the underwriters of
an underwritten public offering advise the Initiating Holders that the
Registrable Securities cannot be sold at a net price per share equal to or
above the minimum net price disclosed in the preliminary prospectus; (D) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such Demand Registration are not satisfied or waived,
other than by reason of a failure by the Initiating Holder or (E) if the amount
of Registrable Securities of the Initiating Holders included in the
registration are cut back from the amount of the Registrable Securities
originally requested to be registered.
Section 2.02 PIGGYBACK RIGHTS.
(a) PARTICIPATION. If at any time Penn Traffic proposes to file a
Registration Statement for the sale of Common Stock in an Underwritten Offering
(such offering, the "COMPANY UNDERWRITTEN OFFERING"), for its own account
and/or another Person (an "OTHER DEMAND PERSON"), then as soon as practicable
but not less than 20 days prior to the filing of such Registration Statement,
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Penn Traffic shall give notice (including, but not limited to, notification by
electronic mail) of such proposed Company Underwritten Offering to the Holders
and such notice shall offer the Holders the opportunity to include in such
Company Underwritten Offering such number of Registrable Securities (the
"INCLUDED REGISTRABLE Securities") as each such Holder may request in writing;
PROVIDED, HOWEVER, that if Penn Traffic has been advised by the Managing
Underwriter that the inclusion of Registrable Securities for sale for the
benefit of the Holders will have a material adverse effect on the price, timing
or distribution of the Common Stock in the Company Underwritten Offering, then
the amount of Registrable Securities to be offered for the accounts of Holders
shall be determined based on the provisions of Section 2.02(b) of this
Agreement. The notice required to be provided in this Section 2.02(a) to
Holders shall be provided on a Business Day pursuant to Section 3.01 hereof and
receipt of such notice shall be confirmed by such Holder. Each such Holder
shall then have three Business Days after receiving such notice to request
inclusion of Registrable Securities in the Company Underwritten Offering. If no
request for inclusion from a Holder is received within the specified time, such
Holder shall have no further right to participate in such Company Underwritten
Offering. If, at any time after giving written notice of its intention to
undertake an Company Underwritten Offering and prior to the closing of such
Company Underwritten Offering, Penn Traffic shall determine for any reason not
to undertake or to delay such Company Underwritten Offering, Penn Traffic may,
at its election, give written notice of such determination to the Selling
Holders and, (x) in the case of a determination not to undertake such Company
Underwritten Offering, shall be relieved of its obligation to sell any Included
Registrable Securities in connection with such terminated Company Underwritten
Offering, and (y) in the case of a determination to delay such Company
Underwritten Offering, shall be permitted to delay offering any Included
Registrable Securities for the same period as the delay in the Company
Underwritten Offering. Any Selling Holder shall have the right to withdraw such
Selling Holder's request for inclusion of such Selling Holder's Registrable
Securities in such offering by giving written notice to Penn Traffic of such
withdrawal up to and including the time of pricing of such offering.
Notwithstanding the foregoing, any Holder may deliver written notice (an "OPT
OUT NOTICE") to Penn Traffic requesting that such Holder not receive notice
from Penn Traffic of any proposed Company Underwritten Offering; provided, that
such Holder may later revoke any such notice. Any holder of Registrable
Securities that exercises piggyback rights following receipt of a Request
Notice shall be treated as an Initiating Holder for purposes of Sections
2.01(c) and 2.03(d).
(b) PRIORITY OF RIGHTS IN A COMPANY UNDERWRITTEN OFFERING. If the
Managing Underwriter or Underwriters of any proposed Company Underwritten
Offering of Common Stock included in an Company Underwritten Offering involving
Included Registrable Securities advises Penn Traffic that the total amount of
Registrable Securities that the Selling Holders and any other Persons intend to
include in such offering exceeds the number that can be sold in such offering
without being likely to have a material adverse effect on the price, timing or
distribution of the Common Stock offered or the market for the Common Stock,
then the Registrable Securities to be included in such Company Underwritten
Offering shall include the number of Registrable Securities that such Managing
Underwriter or Underwriters advises Penn Traffic can be sold without having
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such adverse effect, with such number to be allocated (i) first, to Penn
Traffic, (ii) second, to the Other Demand Person (if any), but only if such
offering is being effected pursuant to the demand rights of such Other Demand
Person, and (iii) third, pro rata among the Selling Holders who have requested
participation in such Company Underwritten Offering. The pro rata allocations
for each such Selling Holder shall be the product of (a) the aggregate number
of Registrable Securities proposed to be sold by all Selling Holders in such
Company Underwritten Offering multiplied by (b) the fraction derived by
dividing (x) the number of Registrable Securities owned on the date of this
Agreement by such Selling Holder by (y) the aggregate number of Registrable
Securities owned on the date of this Agreement by all Selling Holders
participating in the Company Underwritten Offering. All participating Selling
Holders shall have the opportunity to share pro rata that portion of such
priority allocable to any Selling Holder(s) not so participating.
Section 2.03 UNDERWRITTEN OFFERING.
(a) REQUEST FOR UNDERWRITTEN OFFERING. In the event that one or
more Holders collectively holding greater than $5.0 million of Registrable
Securities elect to dispose of Registrable Securities under the Registration
Statement pursuant to an Underwritten Offering, Penn Traffic shall retain
underwriters, effect such sale though an Underwritten Offering, including
entering into an underwriting agreement in customary form with the Managing
Underwriter or Underwriters, which shall include, among other provisions,
indemnities to the effect and to the extent provided in Section 2.09 and take
all reasonable actions as are requested by the Managing Underwriter or
Underwriters to expedite or facilitate the disposition of such Registrable
Securities.
(b) LIMITATION ON UNDERWRITTEN OFFERINGS. In connection with any
and all rights granted hereunder to the Holders to cause Penn Traffic to engage
underwriters to conduct an Underwritten Offering on behalf of the Holders, in
no event shall Penn Traffic be required to do more than two such Underwritten
Offerings.
(c) GENERAL PROCEDURES. In connection with any Underwritten
Offering under this Agreement, the managing underwriter for such underwriting
shall be one or more reputable nationally recognized investment banks selected
by Selling Holders owning a majority of the Registrable Securities included in
such Registration Statement, subject to the approval of the Company, which
approval shall not be unreasonably withheld, delayed or conditioned. In
connection with an Underwritten Offering contemplated by this Agreement in
which a Selling Holder participates, each Selling Holder and Penn Traffic shall
be obligated to enter into an underwriting agreement that contains such
representations, covenants, indemnities and other rights and obligations as are
customary in underwriting agreements for firm commitment offerings of
securities. No Selling Holder may participate in such Underwritten Offering
unless such Selling Holder agrees to sell its Registrable Securities on the
basis provided in such underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities and other documents reasonably
required under the terms of such underwriting agreement. Each Selling Holder
may, at its option, require that any or all of the representations and
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warranties by, and the other agreements on the part of, Penn Traffic to and for
the benefit of such underwriters also be made to and for such Selling Holder's
benefit and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement also be conditions
precedent to its obligations. No Selling Holder shall be required to make any
representations or warranties to or agreements with Penn Traffic or the
underwriters other than representations, warranties or agreements regarding
such Selling Holder and its ownership of the securities being registered on its
behalf, its intended method of distribution and any other representation
required by Law. If any Selling Holder disapproves of the terms of an
underwriting, such Selling Holder may elect to withdraw therefrom by notice to
Penn Traffic and the Managing Underwriter; PROVIDED, HOWEVER, that such
withdrawal must be made at a time up to and including the time of pricing of
such Underwritten Offering. No such withdrawal or abandonment shall affect Penn
Traffic's obligation to pay Registration Expenses.
(d) PRIORITY OF RIGHTS IN A DEMAND REGISTRATION. If the Managing
Underwriter or Underwriters of any proposed Underwritten Offering of Common
Stock included in an Underwritten Offering involving Included Registrable
Securities advises Penn Traffic that the total amount of Registrable Securities
that the Selling Holders and any other Persons intend to include in such
offering exceeds the number that can be sold in such offering without being
likely to have a material adverse effect on the price, timing or distribution
of the Common Stock offered or the market for the Common Stock, then the
Registrable Securities to be included in such Underwritten Offering shall
include the number of Registrable Securities that such Managing Underwriter or
Underwriters advises Penn Traffic can be sold without having such adverse
effect, with such number to be allocated (i) first, pro rata among the
Initiating Holders, (ii) second, to Penn Traffic, and (iii) third, the Other
Demand Person (if any), but only if such offering is being effected pursuant to
the demand rights of such Other Demand Person. The pro rata allocations for
each such Selling Holder shall be the product of (a) the aggregate number of
Registrable Securities proposed to be sold by all Selling Holders in such
Company Underwritten Offering multiplied by (b) the fraction derived by
dividing (x) the number of Registrable Securities owned on the date of this
Agreement by such Selling Holder by (y) the aggregate number of Registrable
Securities owned on the date of this Agreement by all Selling Holders
participating in the Company Underwritten Offering. All participating Selling
Holders shall have the opportunity to share pro rata that portion of such
priority allocable to any Selling Holder(s) not so participating.
Section 2.04 FORM S-3 REGISTRATION. Any Holder (an "INITIATING FORM
S-3 HOLDER") may request at any time following the SEC Compliant Date that the
Company file a Registration Statement under the Securities Act on Form S-3 (or
similar or successor form) covering the sale or other distribution of all or
any portion of the Registrable Securities held by such Initiating Form S-3
Holder pursuant to Rule 415 under the Securities Act ("FORM S-3 DEMAND") if (i)
the reasonably anticipated aggregate gross proceeds from the sale of such
Registrable Securities would equal or exceed $1,000,000, (ii) the Company is a
registrant qualified to use Form S-3 (or any similar or successor form) to
register such Registrable Securities and (iii) the plan of distribution of the
Registrable Securities is other than pursuant to an underwritten public
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offering. If such conditions are met, the Company shall use commercially
reasonable efforts to register under the Securities Act on Form S-3 (or any
similar or successor form) at the earliest practicable date, for sale in
accordance with the method of disposition specified in the Form S-3 Demand, the
number of Registrable Securities specified in such Form S-3 Demand. In
connection with a Form S-3 Demand, the Company agrees to include in the
prospectus included in any Registration Statement on Form S-3, such material
describing the Company and intended to facilitate the sale of securities being
so registered as is reasonably requested for inclusion therein by the
Initiating Form S-3 Holders, whether or not the rules applicable to preparation
of Form S-3 require the inclusion of such information. Notwithstanding the
foregoing, the Company may delay making a filing of a Registration Statement or
taking action in connection therewith by not more than 60 days after receipt of
the Form S-3 Demand Request if the Company provides a written certificate
signed by the Chief Executive Officer and Chief Financial Officer of the
Company to the Initiating Form S-3 Holders, prior to the time it would
otherwise have been required to file such Registration Statement or take such
action pursuant to this Section 2.04, stating that the Board has determined in
good faith that a Valid Business Reason exists to defer the filing of the
Registration Statement; provided, however, that such right to delay a Form S-3
Demand Request shall be exercised by the Company not more than once in any 12
month period and the Company shall only have the right to delay a Form S-3
Demand Request so long as such Valid Business Reason exists, and during such
time, the Company may not file a Registration Statement for securities to be
issued and sold for its own account or for that of anyone other than the
Holders. Form S-3 Demands will not be deemed to be Demand Requests as described
in Section 2.01 hereof and Holders shall have the right to request an unlimited
number of Form S-3 Demands.
Section 2.05 SALE PROCEDURES. In connection with its obligations under
this Article II, Penn Traffic will, as expeditiously as possible:
(a) prepare and file with the SEC such amendments and supplements
to each Registration Statement as may be necessary to comply with the
provisions of the Securities Act, including post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable time period required hereunder and if
applicable, file any Registration Statements pursuant to Rule 462(b) under the
Securities Act; (ii) cause the related prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; (iii) comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement as so amended or in such prospectus as so supplemented; and (iv) if
the Selling Holders so request, request acceleration of effectiveness of the
Registration Statement from the SEC and any post-effective amendments thereto,
if any are filed; provided, however, that at the time of such request, the
Company does not in good faith believe that it is necessary to amend further
the Registration Statement in order to comply with the provisions of this
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subparagraph and, provided, further, if the Company wishes to further amend the
Registration Statement prior to requesting acceleration, it shall have five
days to so amend prior to requesting acceleration;
(b) furnish to each Selling Holder (i) as far in advance as
reasonably practicable before filing the Registration Statement or any other
registration statement contemplated by this Agreement or any supplement or
amendment thereto, upon request, copies of reasonably complete drafts of all
such documents proposed to be filed (including exhibits and each document
incorporated by reference therein to the extent then required by the rules and
regulations of the Commission), and provide each such Selling Holder the
opportunity to object to any information pertaining to such Selling Holder and
its plan of distribution that is contained therein and make the corrections
reasonably requested by such Selling Holder with respect to such information
prior to filing the Registration Statement or such other registration statement
or supplement or amendment thereto, and (ii) such number of copies of the
Registration Statement or such other registration statement and the prospectus
included therein and any supplements and amendments thereto as such Persons may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities covered by such Registration Statement or other
registration statement;
(c) if applicable, use its commercially reasonable efforts to
register or qualify the Registrable Securities covered by the Registration
Statement or any other registration statement contemplated by this Agreement
under the securities or blue sky laws of such jurisdictions as the Selling
Holders or, in the case of an Underwritten Offering, the Managing Underwriter,
shall reasonably request; PROVIDED, HOWEVER, that Penn Traffic will not be
required to qualify generally to transact business in any jurisdiction where it
is not then required to so qualify or to take any action which would subject it
to general service of process in any such jurisdiction where it is not then so
subject;
(d) promptly notify each Selling Holder and each underwriter of
Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered by any of them under the Securities Act, of (i) the
filing of the Registration Statement or any other registration statement
contemplated by this Agreement or any prospectus to be used in connection
therewith, or any amendment or supplement thereto, and, with respect to such
Registration Statement or any other registration statement or any
post-effective amendment thereto, when the same has become effective; and (ii)
any written comments from the Commission with respect to any filing referred to
in clause (i) and any written request by the Commission for amendments or
supplements to the Registration Statement or any other registration statement
or any prospectus or prospectus supplement thereto;
(e) immediately notify each Selling Holder and each underwriter
of Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of (i) the happening of any
event as a result of which the prospectus or prospectus supplement contained in
the Registration Statement or any other registration statement contemplated by
this Agreement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing; (ii) the issuance or threat of issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any other registration statement contemplated by this Agreement,
or the initiation of any proceedings for that purpose; or (iii) the receipt by
Penn Traffic of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction. Following the provision of
such notice, Penn Traffic agrees to as promptly as practicable amend or
supplement the prospectus or prospectus supplement or take other appropriate
action so that the prospectus or prospectus supplement does not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing and to take such other action
as is necessary to remove a stop order, suspension, threat thereof or
proceedings related thereto;
(f) upon request and subject to appropriate confidentiality
obligations, furnish to each Selling Holder copies of any and all transmittal
letters or other correspondence with the Commission or any other governmental
agency or self-regulatory body or other body having jurisdiction (including any
domestic or foreign securities exchange) relating to such offering of
Registrable Securities;
(g) furnish upon request, (i) an opinion of counsel for Penn
Traffic dated the effective date of the applicable registration statement or
the date of any amendment or supplement thereto, and a letter of like kind
dated the date of the closing under the underwriting agreement, and (ii) a
"cold comfort" letter, dated the date of the applicable registration statement
or the date of any amendment or supplement thereto and a letter of like kind
dated the date of the closing under the underwriting agreement, in each case,
signed by the independent public accountants who have certified Penn Traffic's
financial statements included or incorporated by reference into the applicable
registration statement, and each of the opinion and the "cold comfort" letter
shall be in customary form and covering substantially the same matters with
respect to such registration statement (and the prospectus and any prospectus
supplement included therein) as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
Underwritten Offerings of securities and such other matters as such
underwriters or Selling Holders may reasonably request;
(h) otherwise use its commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder;
(i) make available to the appropriate representatives of the
Managing Underwriter and Selling Holders access to such information and Penn
Traffic personnel as is reasonable and customary to enable such parties to
establish a due diligence defense under the Securities Act; PROVIDED, HOWEVER,
11
that Penn Traffic need not disclose any such information to any such
representative unless and until such representative has entered into or is
otherwise subject to a confidentiality agreement with Penn Traffic satisfactory
to Penn Traffic (including any confidentiality agreement referenced in Section
8.06 of the Purchase Agreement);
(j) cause all such Registrable Securities registered pursuant to
this Agreement to be listed on each securities exchange or nationally
recognized quotation system on which similar securities issued by Penn Traffic
are then listed and if not so listed, to be authorized for quotation on the
FINRA automated quotation system;
(k) use its commercially reasonable efforts to cause the
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of Penn Traffic to enable the Selling Holders to
consummate the disposition of such Registrable Securities;
(l) cooperate with each Selling Holder and each underwriter
participating in the disposition of such Registrable Securities and
underwriters' counsel in connection with any filings required to be made with
FINRA;
(m) cause appropriate officers as are requested by a managing
underwriter to participate in a "road show" or similar marketing effort being
conducted by such underwriter with respect to an underwritten public offering;
(n) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement and a CUSIP number for all
such Registrable Securities, in each case, no later than the effective date of
such registration statement;
(o) enter into customary agreements and take such other actions
as are reasonably requested by the Selling Holders or the underwriters, if any,
in order to expedite or facilitate the disposition of such Registrable
Securities;
(p) each Selling Holder, upon receipt of notice from Penn Traffic
of the happening of any event of the kind described in Section 2.05(e) of this
Agreement, shall forthwith discontinue disposition of the Registrable
Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.05(e) of this
Agreement or until it is advised in writing by Penn Traffic that the use of the
prospectus may be resumed and has received copies of any additional or
supplemental filings incorporated by reference in the prospectus, and, if so
directed by Penn Traffic, such Selling Holder will, or will request the
managing underwriter or underwriters, if any, to deliver to Penn Traffic (at
Penn Traffic's expense) all copies in their possession or control, other than
permanent file copies then in such Selling Holder's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice;
(q) if requested by a Purchaser, Penn Traffic shall: (i) as soon
as practicable incorporate in a prospectus supplement or post-effective
12
amendment such information as such Purchaser reasonably requests to be included
therein relating to the sale and distribution of Registrable Securities,
including information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities to be sold in such
offering; (ii) as soon as practicable make all required filings of such
prospectus supplement or post-effective amendment after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; and (iii) as soon as practicable, supplement or make amendments to
any Registration Statement;
(r) take all such other actions as are customary, necessary or
advisable in order to expedite or facilitate the disposition of the Registrable
Securities.
Section 2.06 COOPERATION BY HOLDERS. Penn Traffic shall have no
obligation to include in the Registration Statement Registrable Securities of a
Holder, or in an Underwritten Offering pursuant to Section 2.02 Registrable
Securities of a Selling Holder, who has failed to timely furnish such
information that Penn Traffic determines, after consultation with counsel, is
reasonably required to be furnished or conformed in order for the registration
statement or prospectus supplement, as applicable, to comply with the
Securities Act.
Section 2.07 RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES. Each Holder of Registrable Securities that sells Registrable
Securities in an Underwritten Offering agrees not to effect any public sale or
distribution of the Registrable Securities for a period of up to 30 days
following completion of such Underwritten Offering of equity securities by Penn
Traffic (except as provided in this Section 2.07); PROVIDED, HOWEVER, that the
duration of the foregoing restrictions shall be no longer than the duration of
the shortest restriction generally imposed by the underwriters on the officers
or directors or any other stockholder of Penn Traffic on whom a restriction is
imposed in connection with such public offering. In addition, the provisions of
this Section 2.07 shall not apply with respect to a Holder that (A) owns less
than $2.5 million, in aggregate, of Registrable Securities or (B) has delivered
an Opt Out Notice to Penn Traffic pursuant to Section 2.02(a) hereof; PROVIDED,
HOWEVER, the above shall not apply, in the case of a Purchaser that is a large
multi-unit investment or commercial banking organization, to activities in the
normal course of trading of units of such Purchaser other than the unit
participating in this transaction so long as such other units are not acting on
behalf of the unit participating in this transaction and have not been provided
with confidential information regarding Penn Traffic by the unit participating
in this transaction.
Section 2.08 EXPENSES.
(a) CERTAIN DEFINITIONS. "REGISTRATION EXPENSES" means all
expenses incident to Penn Traffic's performance under or compliance with this
Agreement to effect the registration of Registrable Securities on the
Registration Statement pursuant to Article II hereof, and the disposition of
such securities, including, without limitation, all registration, filing,
securities exchange listing fees, all registration, filing, qualification and
other fees and expenses of complying with securities or blue sky laws, fees of
13
the National Association of Securities Dealers, Inc., transfer taxes and fees
of transfer agents and registrars, all word processing, duplicating and
printing expenses, all reasonable fees and disbursements of counsel to Penn
Traffic and the reasonable fees and disbursements of one counsel to the Holders
and independent public accountants for Penn Traffic, including the expenses of
any special audits or "cold comfort" letters required by or incident to such
performance and compliance. "SELLING EXPENSES" means all underwriting fees,
discounts and selling commissions allocable to the sale of the Registrable
Securities.
(b) EXPENSES. Penn Traffic will pay all Registration Expenses,
including, in the case of an Underwritten Offering, whether or not any sale is
made pursuant to such Underwritten Offering. In addition, except as otherwise
provided in Section 2.09 hereof, Penn Traffic shall not be responsible for
legal fees incurred by Holders in connection with the exercise of such Holders'
rights hereunder. Each Selling Holder shall pay its pro rata share of all
Selling Expenses in connection with any sale of its Registrable Securities
hereunder.
Section 2.09 INDEMNIFICATION.
(a) BY PENN TRAFFIC. In the event of an offering of any
Registrable Securities under the Securities Act pursuant to this Agreement,
Penn Traffic will indemnify and hold harmless each Selling Holder thereunder,
its Affiliates that own Registrable Securities and their respective directors
and officers, and each underwriter, pursuant to the applicable underwriting
agreement with such underwriter, of Registrable Securities thereunder and each
Person, if any, who controls such Selling Holder or underwriter within the
meaning of the Securities Act and the Exchange Act, and its directors and
officers (collectively, the "SELLING HOLDER INDEMNIFIED PERSONS"), against any
losses, claims, damages, expenses or liabilities (including reasonable
attorneys' fees and expenses) (collectively, "LOSSES"), joint or several, to
which such Selling Holder Indemnified Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Losses (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or any other
registration statement contemplated by this Agreement, any preliminary
prospectus, free writing prospectus or final prospectus contained therein, or
any amendment or supplement thereof, 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 (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading or arise out of or are based upon a Selling Holder being deemed to
be an "underwriter," as defined in Section 2(a)(11) of the Securities Act, in
connection with the registration statement in respect of any registration of
Penn Traffic's securities, and will reimburse each such Selling Holder
Indemnified Person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such Loss or actions or
proceedings; PROVIDED, HOWEVER, that Penn Traffic will not be liable in any
such case if and to the extent that any such Loss arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in strict conformity with information furnished by such
Selling Holder Indemnified Person in writing specifically for use in the
14
Registration Statement or such other registration statement, or prospectus
supplement, as applicable. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Holder or
any such Selling Holder, its directors or officers or any underwriter or
controlling Person, and shall survive the transfer of such securities by such
Selling Holder.
(b) BY EACH SELLING HOLDER. Each Selling Holder agrees severally
and not jointly to indemnify and hold harmless Penn Traffic, its directors and
officers, and each Person, if any, who controls Penn Traffic within the meaning
of the Securities Act or of the Exchange Act, and its directors and officers,
to the same extent as the foregoing indemnity from Penn Traffic to the Selling
Holders, but only with respect to information regarding such Selling Holder
furnished in writing by or on behalf of such Selling Holder expressly for
inclusion in the Registration Statement or any preliminary prospectus or final
prospectus included therein, or any amendment or supplement thereto; PROVIDED,
HOWEVER, that the liability of each Selling Holder shall not be greater in
amount than the dollar amount of the proceeds (net of any Selling Expenses)
received by such Selling Holder from the sale of the Registrable Securities
giving rise to such indemnification.
(c) NOTICE. Promptly after receipt by an indemnified party
hereunder of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party other than under this
Section 2.09. In any action brought against any indemnified party, it shall
notify the indemnifying party of the commencement thereof. The indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory
to such indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 2.09 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; PROVIDED,
HOWEVER, that, (i) if the indemnifying party has failed to assume the defense
or employ counsel reasonably acceptable to the indemnified party or (ii) if the
defendants in any such action include both the indemnified party and the
indemnifying party and counsel to the indemnified party shall have concluded
that there may be reasonable defenses available to the indemnified party that
are different from or additional to those available to the indemnifying party,
or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, then the indemnified
party shall have the right to select a separate counsel and to assume such
legal defense and otherwise to participate in the defense of such action, with
the reasonable expenses and fees of such separate counsel and other reasonable
expenses related to such participation to be reimbursed by the indemnifying
party as incurred. Notwithstanding any other provision of this Agreement, no
indemnified party shall settle any action brought against it with respect to
which it is entitled to indemnification hereunder without the consent of the
15
indemnifying party, unless the settlement thereof imposes no liability or
obligation on, and includes a complete and unconditional release from all
liability of, the indemnifying party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 2.09 is held by a court or government agency of competent jurisdiction
to be unavailable to any indemnified party or is insufficient to hold them
harmless in respect of any Losses, then each such indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Loss in such proportion
as is appropriate to reflect the relative fault of the indemnifying party on
the one hand and of such indemnified party on the other in connection with the
statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations; PROVIDED, HOWEVER, that in no event shall
such Selling Holder be required to contribute an aggregate amount in excess of
the dollar amount of proceeds (net of Selling Expenses) received by such
Selling Holder from the sale of Registrable Securities giving rise to such
indemnification. The relative fault of the indemnifying party on the one hand
and the indemnified party on the other 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 has
been made by, or relates to, information supplied by such party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this paragraph
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to herein. The amount paid by an indemnified party as a result of the Losses
referred to in the first sentence of this paragraph shall be deemed to include
any legal and other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any Loss which is the subject of
this paragraph. 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 is not guilty of such fraudulent
misrepresentation.
(e) OTHER INDEMNIFICATION. The provisions of this Section 2.09
shall be in addition to any other rights to indemnification or contribution
which an indemnified party may have pursuant to law, equity, contract or
otherwise.
Section 2.10 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission that may permit the
sale of the Registrable Securities to the public without registration, Penn
Traffic agrees to:
(a) make and keep public information regarding Penn Traffic
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times from and after the date hereof;
(b) file with the Commission in a timely manner all reports and
other documents required of Penn Traffic under the Securities Act and the
Exchange Act at all times from and after the date hereof; and
16
(c) so long as a Holder owns any Registrable Securities, furnish,
unless otherwise not available at no charge by access electronically to the
Commission's βββββ filing system, to such Holder forthwith upon request a copy
of the most recent annual or quarterly report of Penn Traffic, and such other
reports and documents so filed as such Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing such
Holder to sell any such securities without registration.
Section 2.11 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights
to cause Penn Traffic to register Registrable Securities granted to the
Purchasers by Penn Traffic under this Article II may be transferred or assigned
by any Purchaser to one or more transferee(s) or assignee(s) of such
Registrable Securities or by total return swap; PROVIDED, HOWEVER, that, except
with respect to a total return swap, (a) unless such transferee is an Affiliate
of such Purchaser or another Purchaser, each such transferee or assignee holds
Registrable Securities in the amount of $2.5 million, based on the Purchase
Price, (b) Penn Traffic is given written notice prior to any said transfer or
assignment, stating the name and address of each such transferee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and (c) each such transferee assumes in writing
responsibility for its portion of the obligations of such Purchaser under this
Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.01 COMMUNICATIONS. All notices and other communications
provided for or permitted hereunder shall be made in writing by facsimile,
electronic mail, courier service or personal delivery:
(a) if to Penn Traffic, to the address set forth on its signature
page;
(b) if to a Purchaser, to the address set forth on Exhibit A; and
(c) if to a transferee of Purchaser, to such Holder at the
address provided pursuant to Section 2.11 hereof.
All such notices and communications shall be deemed to have been
received: at the time delivered by hand, if personally delivered; when receipt
acknowledged, if sent via facsimile or electronic mail; and when actually
received, if sent by courier service or any other means.
Section 3.02 SUCCESSOR AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including subsequent Holders of Registrable Securities to the extent
permitted herein.
17
Section 3.03 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The
Company represents and warrants that it has not granted registration rights
prior to the date hereof and agrees that from and after the date of this
Agreement, it shall not, without the prior written consent of the Holders of at
least 50% of the Registrable Securities then outstanding, enter into any
agreement (or amendment or waiver of the provisions of any agreement) with any
holder or prospective holder of any securities of the Company that would grant
such holder registration rights that are more favorable, pari passu or senior
to those granted to the Purchasers hereunder.
Section 3.04 RECAPITALIZATION, EXCHANGES, ETC. AFFECTING THE COMMON
STOCK. The provisions of this Agreement shall apply to the full extent set
forth herein with respect to any and all shares of stock of Penn Traffic or any
successor or assign of Penn Traffic (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for or in
substitution of, the Registrable Securities, and shall be appropriately
adjusted for combinations, stock splits, recapitalizations and the like
occurring after the date of this Agreement.
Section 3.05 SPECIFIC PERFORMANCE. Damages in the event of breach of
this Agreement by a party hereto may be difficult, if not impossible, to
ascertain, and it is therefore agreed that each such Person, in addition to and
without limiting any other remedy or right it may have, will have the right to
an injunction or other equitable relief in any court of competent jurisdiction,
enjoining any such breach, and enforcing specifically the terms and provisions
hereof, and each of the parties hereto hereby waives any and all defenses it
may have on the ground of lack of jurisdiction or competence of the court to
grant such an injunction or other equitable relief. The existence of this right
will not preclude any such Person from pursuing any other rights and remedies
at law or in equity which such Person may have.
Section 3.06 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same Agreement.
Section 3.07 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 3.08 GOVERNING LAW. The laws of the State of New York shall
govern this Agreement without regard to principles of conflict of laws.
Section 3.09 CONSENT TO JURISDICTION. Each party hereto further agrees
that service of any process, summons, notice or document by U.S. registered
mail to such party's address set forth on the signature pages hereof shall be
effective service of process for any claim, action or proceeding with respect
to any matters to which it has submitted to jurisdiction in this Section 3.09
or otherwise. As an alternative method of service, each such party also
irrevocably consents to the service of any and all process in any manner
permitted by or under the laws of the State of New York.
18
Section 3.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF, OR RELATING TO, ANY TRANSACTION DOCUMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY) OR ANY COUNTERCLAIM RELATED THERETO. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10.
Section 3.11 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.
Section 3.12 ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the rights granted by Penn Traffic set
forth herein. This Agreement and the Purchase Agreement supersede all prior
agreements and understandings between the parties with respect to such subject
matter.
Section 3.13 AMENDMENT. This Agreement may be amended only by means of
a written amendment signed by Penn Traffic and the Holders of a majority of the
then outstanding Registrable Securities; PROVIDED, HOWEVER, that no such
amendment shall materially and adversely affect the rights of any Holder
hereunder without the consent of such Holder.
Section 3.14 NO PRESUMPTION. If any claim is made by a party relating
to any conflict, omission or ambiguity in this Agreement, no presumption or
burden of proof or persuasion shall be implied by virtue of the fact that this
Agreement was prepared by or at the request of a particular party or its
counsel.
Section 3.15 OBLIGATIONS LIMITED TO PARTIES TO AGREEMENT. Each of the
Parties hereto covenants, agrees and acknowledges that no Person other than the
Purchasers (and their permitted assignees) and Penn Traffic shall have any
obligation hereunder and that, notwithstanding that one or more of the
Purchasers may be a corporation, partnership or limited liability company, no
recourse under this Agreement or the Purchase Agreement or under any documents
19
or instruments delivered in connection herewith or therewith shall be had
against any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or Affiliate of any of
the Purchasers or any former, current or future director, officer, employee,
agent, general or limited partner, manager, member, stockholder or Affiliate of
any of the foregoing, whether by the enforcement of any assessment or by any
legal or equitable proceeding, or by virtue of any applicable law, it being
expressly agreed and acknowledged that no personal liability whatsoever shall
attach to, be imposed on or otherwise be incurred by any former, current or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the Purchasers or any former,
current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder or Affiliate of any of the foregoing, as
such, for any obligations of the Purchasers under this Agreement or the
Purchase Agreement or any documents or instruments delivered in connection
herewith or therewith or for any claim based on, in respect of or by reason of
such obligation or its creation.
Section 3.16 NO REQUIRED SALE. Nothing in this Agreement shall be
deemed to create an independent obligation on the part of any of the Purchasers
to sell any Registrable Securities pursuant to any effective registration
statement.
Section 3.17 ACKNOWLEDGMENT. Penn Traffic hereby acknowledges and
agrees that it shall not have any recourse for any payment or indemnification
obligation under this Agreement, or for any claim based on this Agreement, or
otherwise in respect of this Agreement, to or against any Purchaser's
investment manager or any incorporator, subscriber, promoter, stockholder,
partner, member, director, officer or employee, past, present or future, as
such, of the Purchaser or its investment manager or any other entity for whom
such investment manager acts as manager or investment manager, or any
predecessor or successor thereof, and its recourse shall be limited solely to
the Purchasers.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties hereto execute this Agreement,
effective as of the date first above written.
THE PENN TRAFFIC COMPANY
By:
-------------------------------------------------
Name:
Title:
Address for notices:
The Penn Traffic Company
ββββ βββββ ββββ βββββββββ
ββββββββ, ββ βββββ
Telecopy: βββ-βββ-ββββ
Attention: βββββββ β. βββββ
With copies to:
ββββ, Weiss, Rifkind, βββββββ & ββββββββ LLP
ββββ ββββββ ββ βββ ββββββββ
βββ ββββ, ββ βββββ
Telecopy: (βββ) βββ-ββββ
Attention: βββββββ β. ββββ, Esq.
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties hereto execute this Agreement,
effective as of the date first above written.
KING STREET CAPITAL, L.P.
By: King Street Capital Management, L.L.C.
Its Investment Manager
By:
------------------------------------------------
Name:
Title:
Address for notices:
ββββ ββββββ βββββββ, β.β.
ββββ ββββββ Capital, LTD.
ββ ββββ ββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
Tel: βββ-βββ-ββββ
Fax: βββ-βββ-ββββ
With copies of all correspondence and delivery of
certificates to:
King Street Capital Management, L.L.C.
ββ ββββ ββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
Fax: βββ-βββ-ββββ
Attention: General Counsel
With copies of all correspondence (which shall not
constitute notice):
Fried, Frank, Harris, βββββββ & ββββββββ LLP
βββ βββ ββββ βββββ
βββ ββββ, βββ ββββ βββββ
Fax: (βββ) βββ-ββββ
Attention: ββββββ βββββββ, Esq.
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties hereto execute this Agreement,
effective as of the date first above written.
KING STREET CAPITAL, LTD.
By: King Street Capital Management, L.L.C.
Its Investment Manager
By:
------------------------------------------------
Name:
Title:
Address for notices:
ββββ ββββββ βββββββ, β.β.
ββββ ββββββ Capital, LTD.
ββ ββββ ββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
Tel: βββ-βββ-ββββ
Fax: βββ-βββ-ββββ
With copies of all correspondence and delivery of
certificates to:
King Street Capital Management, L.L.C.
ββ ββββ ββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
Fax: βββ-βββ-ββββ
Attention: General Counsel
With copies of all correspondence
(which shall not constitute notice):
Fried, Frank, Harris, βββββββ & ββββββββ LLP
βββ βββ ββββ βββββ
βββ ββββ, βββ ββββ βββββ
Fax: (βββ) βββ-ββββ
Attention: ββββββ βββββββ, Esq.
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties hereto execute this Agreement,
effective as of the date first above written.
CR INTRINSIC INVESTMENTS, LLC
By:
--------------------------------------------------
Name:
Title:
Address for notices:
CR Intrinsic Investments, LLC
PO Box 174, ββββββββ House
The Valley, Anguilla, British West Indies
With copies of all correspondence and delivery of
certificates to:
CR Intrinsic Investments, LLC
c/o CR Intrinsic Investors, LLC
ββ ββββββββ βββββ ββββ
ββββββββ, ββ βββββ
Attention: General Counsel
With copies of all correspondence
(which shall not constitute notice):
βββββββ ββββ & βββββββββ LLP
βββ βββββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββββ β. ββββββββββ
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties hereto execute this Agreement,
effective as of the date first above written.
TROPHY HUNTER INVESTMENTS LTD.
By:
--------------------------------------------------
Name:
Title:
Address for notices:
Trophy Hunter Investments Ltd.
βββ βββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
With copies of all correspondence
(which shall not constitute notice):
Akin Gump βββββββ βββββ & ββββ LLP
βββ βββββββ ββββββ
βββ ββββ, ββ βββββ
Attention: βββ βββββββββ
BAY HARBOUR MASTER FUND LTD.
By:
--------------------------------------------------
Name:
Title:
Address for notices:
Bay Harbour Master Fund Ltd.
βββ βββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
With copies of all correspondence
(which shall not constitute notice):
Akin Gump βββββββ βββββ & ββββ LLP
βββ βββββββ ββββββ
βββ ββββ, ββ βββββ
Attention: βββ βββββββββ
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties hereto execute this Agreement,
effective as of the date first above written.
INSTITUTIONAL BENCHMARKS SERIES (MASTER FEEDER)
LIMITED
By:
--------------------------------------------------
Name:
Title:
Address for notices:
Institutional Benchmarks Series (Master
Feeder) Limited
βββ βββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
With copies of all correspondence
(which shall not constitute notice):
Akin Gump βββββββ βββββ & ββββ LLP
βββ βββββββ ββββββ
βββ ββββ, ββ βββββ
Attention: βββ βββββββββ
MSS DISTRESSED & OPPORTUNITY 2
By:
--------------------------------------------------
Name:
Title:
Address for notices:
MSS Distressed & Opportunity 2
βββ βββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ
With copies of all correspondence
(which shall not constitute notice):
Akin Gump βββββββ βββββ & ββββ LLP
βββ βββββββ ββββββ
βββ ββββ, ββ βββββ
Attention: βββ βββββββββ
EXHIBIT A
PURCHASERS
King Street Capital, β.β.
ββββ Street Capital, LTD.
CR Intrinsic Investments, LLC
Trophy Hunter Investments LTD.
Bay Harbour Master Fund LTD.
Institutional Benchmarks Series (Master Feeder) Limited
MSS Distressed & Opportunity 2