Exhibit 6
THIRD AMENDMENT TO THE RIGHTS AGREEMENT
BETWEEN
XXXXXXXXX'X, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
This agreement, made this 26th day of September, 2003, between Xxxxxxxxx'x,
Inc. ("Albertson's") and American Stock Transfer & Trust Company ("AST&TC"),
successor to ChaseMellon Shareholder Services, L.L.C. ("CMSS"), as rights agent,
amends the Rights Agreement, dated as of December 9, 1996, between Albertson's
and CMSS (the "Rights Agreement"), as heretofore amended.
WHEREAS, the Board of Directors of Albertson's believes it is in the best
interests of the shareholders of Albertson's to amend the Rights Agreement as
set forth below, and
WHEREAS, under the present circumstances, Section 27 of the Rights
Agreement permits the amendment of the Rights Agreement, and
WHEREAS, Albertson's has directed AST&TC to enter into this agreement,
NOW THEREFORE, intending to be legally bound, Albertson's and AST&TC hereby
agree that the Rights Agreement and the exhibits thereto shall be amended as set
forth below.
1. Section 1(a) of the Rights Agreement is hereby amended in its
entirety to read as follows:
"Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding, but shall not include (i) the Company,
(ii) any Subsidiary of the Company, (iii) any employee benefit
plan of the Company, or of any Subsidiary of the Company, (iv)
any Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan, or (v) any
Person who becomes the Beneficial owner of fifteen percent (15%)
or more of the shares of Common Stock then outstanding as a
result of a reduction in the number of shares of Common Stock
outstanding, unless and until such Person thereafter acquires
beneficial ownership of additional shares of Common Stock
representing one percent (1%) or more of the shares of Common
Stock then outstanding, other than as a result of a stock
dividend, stock split or similar transaction effected by the
Company in which all holders of Common Stock are treated equally,
or (vi) any such Person who has reported or is required to report
such ownership (but less than 20%) on Schedule 13G under the
Securities and Exchange Act of 1934, as amended and in effect on
the date of the Agreement (the "Exchange Act") (or any comparable
or successor report) or on Schedule 13D under the Exchange Act
(or any comparable or successor report) which Schedule 13D does
not state any intention to or reserve the rights to control or
influence the management or policies of the Company or engage in
any of the actions specified in Item 4 of such schedule (other
than the disposition of the Common Stock) and, within 10 Business
Days of being requested by the Company to advise it regarding the
same, certifies to the Company that such Person acquired shares
of Common Stock in excess of 14.9% inadvertently or without
knowledge of the terms of the Rights and who or which, together
with all Affiliates and Associates of such Person, thereafter
does not acquire beneficial ownership of additional shares of
Common Stock while the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding, other than as a result
of a stock dividend, stock split or similar transaction effected
by the Company in which all holders of Common Stock are treated
equally, provided, however, that if the Person requested to so
-------- -------
certify fails to do so within 10 Business Days, then such Person
shall become an Acquiring Person immediately after such
10-Business-Day period."
2. Section 1(b) of the Rights Agreement, which defines the term
"Acquisition Transaction," is hereby deleted in its entirety, all
cross-references to such section are deemed to be deleted, all subsequent
subsections of Section 1 are renumbered accordingly, and all cross-references to
such renumbered sections are changed to refer to such subsections as if
renumbered.
3. Section 1(d) of the Rights Agreement, which defines the term
"Beneficial Owner," is hereby amended in its entirety to read as follows:
"(d) A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to acquire (whether such right is exercisable
immediately or after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," (A) securities tendered
pursuant to a tender or exchange offer made by such Person
or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange,
(B) securities issuable upon exercise of Rights at any time
prior to the occurrence of a Triggering Event or (C)
securities issuable upon exercise of Rights from and after
the occurrence of a Triggering Event which Rights were
acquired by such Person or any of such Person's Affiliates
or Associates prior to the Distribution Date or pursuant to
Section 3(a) or Section 22 hereof (the "Original Rights") or
pursuant to Section 11(i) hereof in connection with an
adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership" of
(as determined pursuant to Rule 13d-3 of the General Rules
and Regulations under the Exchange Act), including pursuant
to any agreement, arrangement or understanding, whether or
not in writing; provided, however, that a Person shall not
-------- -------
be deemed the "Beneficial Owner" of, or to "beneficially
own," any security under this subparagraph (ii) as a result
of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy given in response
to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act, and
(B) is not reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person (or any of such
Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in the proviso to
subparagraph (ii) of this paragraph (d)) or disposing of any
voting securities of the Company;
provided, however, that nothing in this paragraph (d) shall
--------- -------
cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
Person's participation in good faith in a firm commitment
underwriting until the fortieth day after the date of such
acquisition, and then only if such securities continue to be
owned by such Person on such fortieth day."
4. Section 1(cc) of the Rights Agreement, which defines the term
"Stock Acquisition Date," is hereby amended in its entirety to read as follows:
"`Stock Acquisition Date' shall mean the first date of
public announcement by the Company that an Acquiring Person
has become such."
5. The first sentence of Section 3(a) of the Rights Agreement is
hereby amended in its entirety to read as follows:
"Until the earlier of (i) the close of business on the
tenth day after the Stock Acquisition Date (or, if the tenth
day after the Stock Acquisition Date occurs before the
Record Date, the close of business on the Record Date), or
(ii) the close of business on the tenth day (or such later
date as the Board shall determine) after the date that a
tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or
any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan)
is first published or sent or given within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person
would become an Acquiring Person, (the earlier of (i) and
(ii) being herein referred to as the "Distribution Date"),
(x) the Rights will be evidenced (subject to the provisions
of paragraphs (b) and (c) of this Section 3) by the
certificates for the Common Stock registered in the names of
the holders of the Common Stock (which certificates for
Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights
will be transferable only in connection with the transfer of
the underlying shares of Common Stock (including transfer to
the Company)."
6. Section 11(a)(ii) of the Rights Agreement is hereby amended to
read in its entirety as follows:
"(ii) Subject to Section 24 of this Agreement, in the
event any Person, alone or together with its Affiliates and
Associates, shall, at any time after the Rights Dividend
Declaration Date, become an Acquiring Person, unless the
event causing such Person to become an Acquiring Person is a
transaction set forth in Section 13(a) hereof, then,
promptly following the occurrence of such event, proper
provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof) shall
thereafter have the right to receive, upon exercise thereof
at the then current Purchase Price in accordance with the
terms of this Agreement, in lieu of a number of one
one-thousandths of a share of Preferred Stock, such number
of shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase
Price by the then number of one one-thousandths of a share
of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section
11(a)(ii) Event, and (y) dividing that product (which,
following such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each Right and for
all purposes of this Agreement) by fifty percent (50%) of
the Current Market Price (determined pursuant to Section
11(d) hereof) per share of Common Stock on the date of such
first occurrence (such number of shares being referred to
herein as the "Adjustment Shares")."
7. Section 23 of the Rights Agreement is hereby amended to read in
its entirety as follows:
"Section 23. Redemption and Termination.
(a) The Board may, at its option, at any time prior to
the earlier of (i) the close of business on the tenth day
following the Stock Acquisition Date (or, if the Stock
Acquisition Date has already occurred prior to the Record
Date, the close of business on the tenth day following the
Record Date), or (ii) the Final Expiration Date, redeem all
but not less than all the then outstanding Rights at a
redemption price of $.001 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to
as the "Redemption Price"). Notwithstanding anything
contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a
Section 11(a)(ii) Event until such time as the Company's
right of redemption hereunder has expired. The Company may,
at its option, pay the Redemption Price in cash, shares of
Common Stock (based on the Current Market Price, as defined
in Section 11(d)(i) hereof, of the Common Stock at the time
of redemption) or any other form of consideration deemed
appropriate by the Board.
(b) Immediately upon the action of the Board ordering
the redemption of the Rights, evidence of which shall be
filed by the Company with the Rights Agent, and without any
further action and without any notice, the right to exercise
the Rights will terminate and the only right thereafter of
the holders of Rights shall be to receive the Redemption
Price for each Right so held. Promptly after the action of
the Board ordering the redemption of the Rights, the Company
shall give notice of such redemption to the Rights Agent and
the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as
it appears upon the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the
transfer agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the
payment of the Redemption Price will be made."
8. Section 26 of the Rights Agreement is hereby amended by deleting
the name and address of CMSS therein and replacing it with the following:
"American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxx".
9. Section 27 of the Rights Agreement is hereby amended in its
entirety to read as follows:
"Section 27. Supplements and Amendments.
Prior to the Distribution Date, the Company may in its
sole and absolute discretion, and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of
this Agreement without the approval of any holders of Rights
or certificates representing shares of Common Stock. From
and after the Distribution Date, the Company may in its sole
and absolute discretion, and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights in order (i)
to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to
shorten or lengthen any time period hereunder, or (iv) to
change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of
Rights Certificates (other than an Acquiring Person or an
Affiliate or Associate of the Acquiring Person) and no such
supplement or amendment shall cause the Rights again to
become redeemable or cause this Agreement again to become
supplementable or amendable otherwise than in accordance
with the provisions of this sentence. Upon the delivery of a
certificate from an officer of the Company which states that
the proposed supplement or amendment is in compliance with
the terms of this Section 27, the Rights Agent shall execute
such supplement or amendment; provided, however, that the
-------- -------
failure or refusal of the Rights Agent to execute such
supplement or amendment will not affect the validity of any
supplement or amendment adopted by the Board of Directors of
the Company, any of which will be effective in accordance
with the terms thereof. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common
Stock."
10. Exhibits A, B and C to the Rights Agreement shall be deemed to be
amended in a manner consistent herewith.
11. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as heretofore amended and as amended
hereby, and all references to the Rights Agreement shall be deemed to include
this agreement and all prior amendments.
12. This agreement shall be effective as of the date first written
above, and except as set forth herein, the Rights Agreement shall remain in full
force and effect and otherwise shall be unaffected hereby.
13. This agreement may be executed in any number of counterparts and
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.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the day and year first above written.
XXXXXXXXX'X, INC.
Attest:
/s/ Xxxx X. X'Xxxxxxx By: /s/ Xxxx X. Xxxx
---------------------- -----------------
Name: Xxxx X. X'Xxxxxxx Name: Xxxx X. Xxxx
Title: Vice President Title: Executive Vice President
and Corporate Secretary and General Counsel
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Attest:
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------- ----------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President Title: Vice President
