AMENDMENT NO. 6 TO RIGHTS AGREEMENT
This AMENDMENT, dated as of April 22, 1999, is between U.S.
FOODSERVICE, a Delaware corporation (the "Company"), and THE BANK OF NEW YORK
(the "Rights Agent").
Recitals
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WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of February 19, 1996, as amended as of May 17, 1996,
September 26, 1996, June 30, 1997, December 23, 1997 and March 25, 1999 (the
"Rights Agreement");
WHEREAS, certain transactions referred to in the Rights Agreement have
been consummated; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment and restatement of
Section 1(a) of the Rights Agreement and an amendment of Section 21 of the
Rights Agreement as set forth herein are necessary and desirable, and the
Company and the Rights Agent desire to evidence such amendments and such
restatement in writing;
NOW, THEREFORE, the parties agree as follows:
I. Amendment and Restatement of Section 1(a). Section 1(a) of the
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Rights Agreement is hereby amended and restated to state in its entirety as
follows:
"Acquiring Person" shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as such term is hereinafter defined) of 10% or more of the Common
Shares of the Company then outstanding, but shall not include the Company,
any Subsidiary (as such term is hereinafter defined) of the Company, any
employee benefit plan of the Company or any Subsidiary of the Company, or
any entity holding Common Shares for or pursuant to the terms of such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person"
as a result of an acquisition of Common Shares by the Company which, by
reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 10% or more of the
Common Shares of the Company then outstanding; provided, however, that if a
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Person shall become the Beneficial Owner of 10% or more of the Common
Shares of the Company then outstanding by reason of share purchases by the
Company and shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of
the Company other than in connection with a stock split, stock dividend or
other similar transaction occurring after the date hereof, then such Person
shall be deemed to be an "Acquiring Person." Notwithstanding the foregoing,
if the Board of Directors of the Company determines in good faith that a
Person who would otherwise be an "Acquiring Person," as defined pursuant to
the foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no longer be
an "Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement. With respect to any
Person that is a 13G Eligible Person, each reference to "10%" in this
paragraph (a) shall be deemed to be a reference to "15%." Notwithstanding
any provision in this Agreement to the contrary, none of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxx Xxxxx
International, any ML Entity (as such term is hereinafter defined) or any
ML Entity Affiliate (as such term is hereinafter defined) shall be deemed
an Acquiring Person solely as the result of (a) the execution and delivery
of the U.S. Purchase Agreement, dated March 25, 1999 (the "U.S. Purchase
Agreement"), among the Company, the stockholders of the Company named in
Schedule B thereto (the "Selling Stockholders") and Xxxxxxx Lynch, Goldman,
Sachs & Co., Xxxxxxx Xxxxx Xxxxxx Inc., X.X. Xxxxxxxx & Co. and First Union
Capital Markets Corp., as U.S. representatives of the several U.S.
underwriters named therein, and the International Purchase Agreement, dated
March 25, 1999 (the "International Purchase Agreement"), among the Company,
the Selling Stockholders and Xxxxxxx Xxxxx International, Xxxxxxx Sachs
International, Salomon Brothers International Limited and X.X. Xxxxxxxx &
Co., as lead managers of the several international managers named therein,
or (b) the consummation of the transactions contemplated by the U.S.
Purchase Agreement and the International Purchase Agreement (collectively,
the "Purchase Agreements") or otherwise to be consummated in connection
with the Purchase Agreements and the related U.S. and international
offerings of Common Shares (the "Offerings"), including, without
limitation, the acquisition by Xxxxxxx Xxxxx and Xxxxxxx Xxxxx
International of beneficial ownership of Common Shares pursuant to the
Purchase Agreements, in connection with stabilization transactions relating
to the Offerings or in market-making transactions in the Common Shares. "ML
Entity" shall mean any stockholder of Xxxxxx-Xxxxxx, Inc. ("Xxxxxx-Xxxxxx")
that is identified as such in the Support Agreement, as amended and
restated as of June 30, 1997, by and between the Company and such
stockholders, and acknowledged by Xxxxxx-Xxxxxx. "ML Entity Affiliate"
shall mean any Person that is an "Affiliate" of an ML Entity, as such term
is defined in the Standstill Agreement, dated as of May 17, 1996, by and
between Xxxxxx-Xxxxxx and the persons set forth on the signature pages
thereto.
II. Amendment of Section 21. Section 21 of the Rights Agreement is
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hereby amended by adding to the end thereof the following sentence:
"Anything in this Agreement to the contrary notwithstanding, the
Company may appoint the transfer agent of the Common Shares as a
successor Rights Agent."
III. Effectiveness. This Amendment shall be deemed effective as of
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the date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
IV. Miscellaneous. This Amendment shall be deemed to be a contract
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made under the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of such state applicable
to contracts to be made and performed entirely within such state. This
Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument. If any
provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, illegal or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
U.S. FOODSERVICE
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
THE BANK OF NEW YORK
/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
