EXHIBIT 4.1
AMENDMENT TO
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amendment ("Amendment") dated as of May 1, 2006, is being made to the
Amended and Restated Rights Agreement dated as of December 24, 1998 (the
"Agreement"), between Xxxxx Supermarkets, Inc., an Indiana corporation (the
"Company") and National City Bank (the "Rights Agent"), as successor to
merchants National Bank & Trust Company of Indianapolis.
RECITALS
WHEREAS, the undersigned parties are the sole parties to the Agreement;
WHEREAS, as of the date hereof, a Distribution Date (as defined in the
Agreement) has not yet occurred; and
WHEREAS, the parties desire to amend the Agreement pursuant to Section 26
thereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
1. All capitalized terms used in this Amendment shall have the meaning given
them in the Agreement.
2. Section 1(a) of the Agreement shall be amended by adding the following
sentence at the end of such subsection:
"Notwithstanding the foregoing, Sun Capital Partners IV, L.P. and any
Affiliate or Associates of such Person ("Sun Capital") shall not be
considered an "Acquiring Person" for purposes of this Agreement with
respect to the entry into of any definitive agreements relating to or the
consummation of the transactions contemplated by the letter agreement dated
April 20, 2006 between Sun Capital and the Company."
3. Except as expressly modified by this Amendment, the Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above written.
XXXXX SUPERMARKETS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx,
Executive Vice President-Finance
and Administration
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President