FIRST AMENDMENT
TO
RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is
entered into as of October 8, 1996, between Super Food Services, Inc., a
Delaware corporation (the "Company), and Xxxxx Xxxxxx Shareholder Services LLC,
as successor to The Chase Manhattan Bank, N.A., as rights agent (the "Rights
Agent"). This Amendment modifies and amends the Rights Agreement, dated as
of January 27, 1989, between the Company and the Rights Agent (the "Rights
Agreement").
W I T N E S E T H:
WHEREAS, on January 27, 1989, the Board of Directors of the
Company authorized and declared a dividend distribution of one right (a "Right")
for each Common Share, par value $1.00 per share (the "Common Stock"), of the
Company outstanding at the close of business on February 6, 1989 (the "Record
Date"), each Right initially representing the right to purchase one
one-hundredth of a share of the Series A Junior Participating Preferred Stock of
the Company having the rights. powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights attached as Exhibit A to the
Rights Agreement, upon the terms and subject to the conditions set forth in the
Rights Agreement; and
WHEREAS, the Board of Directors of the Company also authorized
the issuance of one Right in respect of each share of Common Stock of the
Company that is issued after the Record Date but prior to the
earlier of the Distribution Date and the Expiration Date (as such terms are
defined in the Rights Agreement; and
WHEREAS, pursuant to the Rights Agreement, the number of Rights
associated with each share of Common Stock was reduced from one to two-thirds of
a Right associated with each share of Common Stock by reason of a 50% stock
dividend on the shares of Common Stock distributed on December 15, 1989; and
WHEREAS, the Rights remain issued and outstanding as of the date
hereof and the Rights Agreement remains in effect with respect thereto; and
WHEREAS, as of the date hereof no Triggering Event or Stock
Acquisition Date has occurred; and
WHEREAS, the Company, Xxxx-Xxxxx Company, a Delaware corporation
("Parent"), and NFC Acquisition Corporation, a Delaware corporation ("Sub"),
propose to enter into an Agreement and Plan of Merger (the "Parent Merger
Agreement"); and
WHEREAS, Parent, Sub and certain stockholders of the Company
propose to enter into a Stockholders Agreement (the "Stockholders Agreement")
pursuant to which such stockholders will, subject to the terms and conditions
therein set forth, agree among other things to tender their shares of Common
Stock to Sub pursuant to the Offer (as hereinafter defined)
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and grant to Parent proxies to vote their respective shares of Common Stock in
favor of adoption of the Parent Merger Agreement; and
WHEREAS, in connection with the anticipated approval, execution,
and delivery of the Parent Merger Agreement, the Board of Directors of the
Company has adopted, in accordance with Section 26 of the Rights Agreement, a
resolution approving this Amendment and directing the appropriate officers of
the Company to take all appropriate steps to execute, deliver, and put into
effect this Amendment, and an appropriate officer of the Company has provided
a certificate to the Rights Agent as provided for in Section 26 of the Rights
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein set forth, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights
Agreement is amended and restated in its entirety to read as follows:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding, but shall not include 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; except that for
purposes of this Section 1(a), neither Parent nor any Affiliate or
Associate of Parent shall be deemed to be or become an Acquiring Person by
reason of the approval, execution, or delivery of the Stockholders
Agreement or the Parent Merger Agreement, or all of them, or by reason of
the consummation of any transaction contemplated by the Stockholders
Agreement or the Parent Merger Agreement, or all of them, including,
without limitation the Offer (as hereinafter defined), so
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long as Parent or any Affiliate or Associate of Parent is not the
Beneficial Owner of any shares of Common Stock of the Company other than
(A) shares of Common Stock of the Company of which Parent or any Subsidiary
of Parent is or becomes the Beneficial Owner by reason of the approval,
execution, or delivery of the Stockholders Agreement or the Parent Merger
Agreement, or all of them, or by reason of the consummation of any
transaction contemplated by the Stockholders Agreement or the Parent Merger
Agreement, or all of them, including, without limitation, the Offer and and
(B) shares of Common Stock of the Company Beneficially Owned by Parent or
its Affiliates or Associates on October 8, 1996.
2. AMENDMENT OF SECTION 1(c). Section 1(c) of the Rights
Agreement is amended and restated in its entirety to read as follows:
(c) 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 only 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, or (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 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
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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 also then 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 (c)) or disposing of any voting securities of the
Company; PROVIDED, HOWEVER, that nothing in this paragraph (c) 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 expiration of forty days after the
date of such acquisition.
Notwithstanding any of the foregoing clauses (i), (ii) or (iii), neither
Parent nor any of its Affiliates or Associates shall be deemed the
"Beneficial Owner" of, or to "beneficially own," any securities by reason of
the approval, execution, delivery, and performance of the Stockholders
Agreement or the Parent Merger Agreement, or all of them, and the
consummation of any transaction contemplated by the Stockholders Agreement
or the Parent Merger Agreement, or all of them, including the Offer, so
long as neither Parent nor any of its Affiliates or Associates is the
Beneficial Owner of any shares of Common Stock of the Company other than
(A) shares of Common
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Stock of the Company of which Parent or any Subsidiary of Parent is or
becomes the Beneficial Owner by reason of the approval, execution, or
delivery of the Stockholders Agreement or the Parent Merger Agreement, or
all of them, or by reason of the consummation of any transaction
contemplated by the Stockholders Agreement or the Parent Merger Agreement,
or all of them, including, without limitation, the Offer and (B) shares of
Common Stock of the Company Beneficially Owned by Parent or its Affiliates
or Associates on October 8, 1996.
3. ADDITION OF SECTION 1(n). A new Section 1(n) is added to the
Rights Agreement, to read as follows:
(t) The "Parent Merger Agreement" shall mean the Agreement and
Plan of Merger, dated as of October 8, 1996, by and among Parent, Sub and
the Company, as amended from time to time.
4. ADDITION OF SECTION 1(o). A new Section 1(o) is added to the
Rights Agreement, to read as follows:
(o) "Stockholders Agreement" shall mean the Stockholders
Agreement, dated as of October 8, 1996, by and among Parent, Sub and
certain stockholders of the Company, as amended from time to time.
5. ADDITION OF SECTION 1(p). A new Section 1(p) is added to the
Rights Agreement, to read as follows:
(p) "Parent" shall mean Xxxx-Xxxxx Company, a Delaware
corporation, and its successors.
6. ADDITION OF SECTION 1(q). A new Section 1(q) is added to the
Rights Agreement, to read as follows:
(x) The "Parent Merger Agreement" shall mean the Agreement and
Plan of Merger, dated as of October 8, 1996, by and among Parent, Sub and
the Company, as the same may be from time-to-time amended.
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7. ADDITION OF SECTION 1(r). A new Section 1(r) is added to the
Rights Agreement, to read as follows:
(r) "Sub" shall mean NFC Acquisition Corporation, a Delaware
corporation, and its successors.
8. ADDITION OF SECTION 1(s). A new Section 1(s) is added to the
Rights Agreement, to read as follows:
(s) The "Offer" shall mean the tender offer contemplated by
Section 1.1 of the Parent Merger Agreement.
9. AMENDMENT OF SECTION 3(c). Section 3(c) of the Rights
Agreement is amended and restated in its entirety to read as follows:
(c) Rights shall be issued in respect of all shares of Common
Stock which are (i) issued (whether originally issued or from the Company's
treasury) after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date, or (ii) issued upon exercise,
after the Record Date but before the Expiration Date, of any employee stock
option granted by the Company prior to the occurrence of the Distribution
Date. Certificates representing such shares of Common Stock shall also be
deemed to be certificates for Rights and shall bear the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Super
Food Services, Inc. (the "Company") and The Chase Manhattan Bank,
N.A. (the "Rights Agent"), dated as of January 27, 1989, as the same
may be amended from time to time (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference and a copy
of which is on file at the principal offices of the Rights
Agent. Under certain circumstances, as set forth in the Rights
Agreement, the Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Rights
Agent will mail to the holder of this certificate a copy of the
Rights Agreement, as in effect on the date of mailing, without
charge promptly after receipt of a written request therefor.
Under certain
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circumstances set forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may become null and
void.
With respect to such certificates containing the foregoing legend, until
the earlier of (i) the Distribution Date or (ii) the Expiration Date, the
Rights associated with the Common Stock represented such certificates shall
be evidenced by the certificates alone, and registered holders of Common
Stock shall also be the registered holders of the associated Rights, and
the transfer of any of such certificates shall also constitute the transfer
of the Rights associated with the Common Stock represented by the
certificate.
10. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights
Agreement is amended and restated in its entirety to read as follows:
(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions
on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section
23(a) hereof) in whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly executed, to
the Rights Agent at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one one-hundredths of a
share (or other securities, cash or other assets, as the case may be) as to
which such surrendered Rights are then exercisable, at or prior to the
earlier to occur of (i) the consummation of the Offer and acceptance for
payment of the shares of Common Stock tendered pursuant to the Offer, (ii)
the close of business on January 26, 1999 (the "Final Expiration Date") or
(iii) the time at which the Rights are redeemed as provided in Section 23
hereof (the earlier of (i), (ii) and (iii) being herein referred to as the
"Expiration Date").
11. AMENDMENT OF SECTION 11(a)(ii). Section 11(a)(ii) of the
Rights Agreement is amended and restated in its entirety to read as follows:
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(ii) In the event 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), alone or together with any of its Affiliates or Associates, shall,
at any time after the Rights Dividend Declaration Date, become the
Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding, unless the event causing the 20% threshold to be crossed is a
transaction set forth in Section 13(a) hereof, or is an acquisition of
shares of Common Stock pursuant to a tender offer or exchange offer for all
outstanding shares of Common Stock of the Company at a price and on terms
determined by at least a majority of the members of the Board of Directors
who are not officers of the Company and who are not representatives,
nominees, Affiliates or Associates of an Acquiring Person, after receiving
advice from one or more investment banking firms, to be (a) at a price
which is fair to shareholders (taking into account all factors which such
members of the Board deem relevant including, without limitation, prices
which could reasonably be achieved if the Company or its assets were sold
on an orderly basis designed to realize maximum value) and (b) otherwise in
the best interests of the Company and its shareholders, then, promptly
following the first occurrence of any Section 11(a)(ii) 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-hundredths 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-hundredths 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 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, the
"Adjustment Shares"); except that, for purposes of this Section 11(a)(ii),
neither Parent nor any Affiliate or Associate of Parent shall be deemed to
be the Beneficial Owner of shares of Common Stock by reason of the
approval,
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execution, or delivery of the Stockholders Agreement, the Parent Merger
Agreement, or all of them, or by reason of the consummation of any
transaction contemplated by the Stockholders Agreement, the Parent Merger
Agreement, or all of them, so long as Parent or any Subsidiary of Parent is
not the Beneficial Owner of any Common Shares of the Company other than (A)
shares of Common Stock of the Company of which Parent or any Subsidiary of
Parent is or becomes the Beneficial Owner by reason of the approval,
execution, or delivery of the Stockholders Agreement or the Parent Merger
Agreement, or all of them, or by reason of the consummation of any
transaction contemplated by the Stockholders Agreement or the Parent Merger
Agreement, or all of them, including, without limitation, the Offer and (B)
shares of Common Stock of the Company Beneficially Owned by Parent or its
Affiliates or Associates on October 8, 1996.
12. ADDITION OF SECTION 33. A new Section 33 is added
to the Rights Agreement, to read as follows:
Section 33. CERTAIN EVENTS. Notwithstanding any provision of
this Agreement to the contrary, none of Parent or any of its Affiliates or
Associates shall become an Acquiring Person and no Distribution Date,
Shares Acquisition Date or Triggering Event shall be deemed to have
occurred, and no holder of Rights shall be entitled to exercise the Rights
under or be entitled to any rights pursuant to Sections 7(a), 11(a), or
13(a) of this Agreement, solely by reason of the following: (a) the
approval, execution, or delivery of the Stockholders Agreement, the Parent
Merger Agreement, or all of them, or the consummation of any transaction
contemplated by the Stockholders Agreement, the Parent Merger Agreement, or
all of them, and (b) the purchase of shares of Common Stock pursuant to the
Offer; and, upon consummation of the Offer and acceptance for payment of the
shares of Common Stock tendered pursuant to the Offer, the Rights will no
longer be outstanding, and the former holders of the Rights will not have
any claims or rights thereunder; except that, in the event Parent or any
Affiliate or Associate of Parent becomes the Beneficial Owner of any shares
of Common Stock of the Company other than (A) shares of Common Stock of the
Company of which Parent or any Subsidiary of Parent is or becomes the
Beneficial Owner by reason of the approval, execution, or delivery of
the Stockholders Agreement or the Parent Merger Agreement, or all of them,
or by reason of the consummation of any transaction contemplated by the
Stockholders Agreement or the Parent Merger Agreement, or all of them,
including, without limitation, the Offer and (B) shares of Common Stock of
the
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Company Beneficially Owned by Parent or its Affiliates or Associates on
October 8, 1996, the provisions of this Section 33 shall not be applicable.
13. EFFECTIVENESS. This Amendment shall be deemed to be in
force and effective immediately upon execution and delivery of the Stockholders
Agreement, the Parent Merger Agreement, or both. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
14. MISCELLANEOUS.
(a) This Amendment shall be binding upon and shall inure to the
benefit of each of the parties and their respective successors and assigns.
(b) Unless otherwise defined herein, all defined terms used
herein shall have the same meanings given to them in the Rights Agreement.
(c) This Amendment shall be deemed to be a contract made under
the substantive laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the internal substantive laws of
such State applicable to contracts to be made and performed entirely within such
State.
(d) This Amendment may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original and all
of which shall together constitute but one and the same instrument.
(e) If any term, provision, covenant, or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to
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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.
SUPER FOOD SERVICES, INC.
By: /s/ Xxxx Xxxxx
---------------------------
Xxxx Xxxxx
Vice Chairman of the Board,
General Counsel and Secretary
XXXXX XXXXXX SHAREHOLDER
SERVICES LLC, successor to
The Chase Manhattan Bank, N.A.,
as Rights Agent
By: /s/ X.X. Xxxxxxxxxx
--------------------------------------------
Name: X.X. Xxxxxxxxxx
-------------------------------------
Title: Authorized Officer and Vice President
-------------------------------------
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