Exhibit 4.1
AMENDMENT NO. 5 TO RIGHTS AGREEMENT
This AMENDMENT, dated as of March 25, 1999, is between U.S.
FOODSERVICE, a Delaware corporation (the "Corporation"), and THE BANK OF NEW
YORK (the "Rights Agent").
Recitals
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WHEREAS, the Corporation 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 and December 23, 1997 (the "Rights
Agreement"); and
WHEREAS, the ML Entities (as such term is defined in the Rights
Agreement), other stockholders of the Corporation and the Corporation wish to
sell common stock of the Corporation in a public offering underwritten by
underwriting firms that include Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxxx Xxxxx International; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Corporation has determined that an amendment to the Rights
Agreement as set forth herein is necessary or desirable in connection with the
foregoing, and the Corporation and the Rights Agent wish to evidence such
amendment in writing:
NOW, THEREFORE, the parties agree as follows:
I. Amendment of Section 1(a). Section 1(a) of the Rights Agreement
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relating to the definition of "Acquiring Person" is hereby amended by adding the
following at the end of such Section 1(a):
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 or any ML Entity Affiliate 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 Corporation, the stockholders of the
Corporation 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 to be named therein, and
the
International Purchase Agreement dated March 25, 1999 (the "International
Purchase Agreement"), among the Corporation, 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 to be 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.
II. 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.
III. 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,
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provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be effected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
U.S. FOODSERVICE
/s/ Xxxxx X. Xxxxxxxx
________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
THE BANK OF NEW YORK
/s/ Xxxxx Xxxxxxxx
________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
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