Exhibit 4.1
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
This AMENDMENT, dated as of June 30, 1997, is between
JP FOODSERVICE, INC., a Delaware corporation (the "Corpora-
tion"), and THE BANK OF NEW YORK (the "Rights Agent").
Recitals
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 and as of September 26, 1996 (the
"Rights Agreement"); and
WHEREAS, Xxxxxx-Xxxxxx, Inc., a Delaware corporation
("Rykoff"), and the Corporation propose to enter into an Agree-
ment and Plan of Merger (the "Rykoff Merger Agreement") pursu-
ant to which Rykoff will merge with and into Xxxxxx Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of
the Company (the "Merger"), and two related Stock Option Agree-
ments (the "Stock Option Agreements") between the Corporation
as grantee and Rykoff as issuer, and between Rykoff as grantee
and the Corporation as issuer; and
WHEREAS, the Corporation and certain stockholders of
Rykoff propose to enter into a Support Agreement pursuant to
which such stockholders, among other things, will agree to vote
their shares of common stock of Rykoff in favor of the Merger;
and
WHEREAS, the Board of Directors of the Corporation
has approved the Rykoff Merger Agreement, the Merger, the Stock
Option Agreements and the Support Agreement; and
WHEREAS, Pursuant to Section 27 of the Rights Agree-
ment, the Board of Directors of the Corporation has determined
that an amendment to the Rights Agreement as set forth herein
is necessary and desirable in connection with the foregoing and
the Corporation and the Rights Agent desire to evidence such
amendment in writing.
Accordingly, the parties agree as follows:
1. Amendment of Section 1(a). The first two sen-
tences of Section 1(a) of the Rights Agreement are hereby de-
leted and the following shall be substituted in their place:
"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 hereinaf-
ter 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 (x) the Company, any Subsidiary (as such
term is hereinafter defined) of the Company, and employee
benefit plan of the Company or any Subsidiary of the Com-
pany, or any entity holding Common Shares for or pursuant
to the terms of such plan or (y) Xxxxxx-Xxxxxx, Inc., a
Delaware corporation ("Rykoff") or any ML Entity (as de-
fined in clause (iii) of this sentence), but only to the
extent that Rykoff or such ML Entity would, absent this
provision, be deemed to be an Acquiring Person solely as
the result of (i) the execution and delivery of the Agree-
ment and Plan of Merger (the "Rykoff Merger Agreement"),
to be dated as of June 30, 1997, by and between the Com-
pany, Rykoff and Xxxxxx Acquisition Corp., a Delaware cor-
poration and a wholly-owned subsidiary of the Company
("Acquisition"), which provides for the merger of Rykoff
with and into Acquisition (the "Rykoff Merger"); (ii) the
execution and delivery of the Stock Option Agreement, to
be dated as of June 30, 1997, by and between the Company,
as issuer, and Rykoff, as grantee; (iii) the Support
Agreement, to be dated as of June 30, 1997, by and between
the Company, on the one hand, and the Rykoff stockholders
whose names are set forth on the signature pages thereto
(each individually, an "ML Entity" and collectively, the
"ML Entities"), and acknowledged by Rykoff; or (iv) the
consummation of the transactions contemplated by agree-
ments contemplated by the Rykoff Merger Agreement, in-
cluding, without limitation, the Merger.
2. Deletion of Certain Sections. Sections 1(l),
1(m), 1(p) and 1(q) of the Rights Agreement are hereby deleted
and Sections 1(n), 1(o) and 1(r) are hereby renumbered as Sec-
tions 1(l), 1(m) and 1(n), respectively.
3. Amendment of Section 3(a). The first sentence of
Section 3(a) of the Rights Agreement is hereby amended by de-
leting therefrom the words "Xxxx Xxx Party" and substituting
for such words the words "ML Entity".
4. Effectiveness. This Amendment shall be deemed
effective as of 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.
5. Miscellaneous. This Amendment shall be deemed to
be a contract made under the laws of the State of New York and
for all purposes shall be governed by and construed in ac-
cordance with the laws of such state applicable to contracts to
be made and performed entirely within such state. This Amend-
ment 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 un-
enforceable, 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 effected, impaired or in-
validated.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
JP FOODSERVICE, INC.
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chairman, President
and Chief Executive
Officer
THE BANK OF NEW YORK
/s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
