Exhibit c(6)
AMENDMENT TO THE
STOCK PURCHASE AGREEMENT
AMENDMENT TO THE STOCK PURCHASE AGREEMENT (this "Amendment"), dated as
of August 24, 1999, by and among KONINKLIJKE AHOLD N.V., a company organized
under the laws of the Netherlands ("Parent"), AHOLD ACQUISITION, INC., a company
organized under the laws of Delaware and an indirect wholly owned subsidiary of
Parent ("Sub"), SMG-II HOLDINGS CORPORATION, a company organized under the laws
of Delaware ("SMG - II") and PTK HOLDINGS, INC. a company organized under the
laws of Delaware ("PTK"). Terms used but not otherwise defined herein shall have
the meanings assigned to them in the Stock Purchase Agreement (as defined
below).
W I T N E S S E T H :
WHEREAS, Parent, Sub and SMG-II entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated March 9, 1999 pursuant to which the
parties thereto agreed to merge Sub with and into SMG-II (the "Merger");
WHEREAS, Parent, Sub, SMG-II and PTK entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated as of March 9, 1999, pursuant
to which the parties thereto agreed that, in the event certain conditions in
connection with the Tender Offer set forth in the Merger Agreement are not
satisfied, SMG-II shall in the alternative cause PTK to sell, and Sub shall in
the alternative purchase, an aggregate of 100 shares of common stock, par value
$.10 per share, of Pathmark Stores, Inc., a company organized under the laws of
Delaware (the "Company"), being all of the issued and outstanding shares of
capital stock of the Company, all in accordance with the Stock Purchase
Agreement;
WHEREAS, a certain shareholder ("Plaintiff") brought an action (the
"Action") in the Court of Chancery of the State of Delaware (the "Court"),
styled Xxxxxx Xxxxxxx v. Supermarkets General Holdings Corporation, et al., C.A.
No. 17047;
WHEREAS, the Action was filed as a class action against Supermarkets
General Holdings Corporation, a company organized under the laws of Delaware
("SMGH"), SMG-II, Sub, and certain individual defendants (the "Director
Defendants"), seeking, inter alia, injunctive and declaratory relief and/or
monetary relief with respect to the Tender Offer;
WHEREAS, SMGH, SMG-II, Sub, the Director Defendants and Plaintiff
settled the Action pursuant to the Memorandum of Understanding, dated May 19,
1999, and a Stipulation and Agreement of Compromise, Settlement and Release (the
"Settlement"), dated as of June 9, 1999, which was submitted to the Court for
approval;
WHEREAS, on July 22, 1999 the Court certified the action as a class
action and approved the Settlement and as of the date hereof, the period for
appeals has expired;
WHEREAS, Parent, Sub, SMG-II and PTK wish to amend the Stock Purchase
Agreement pursuant to Section 1(a)(iii) of the Settlement;
WHEREAS, Section 10.11 of the Stock Purchase Agreement provides that
the Stock Purchase Agreement may be amended by an agreement in writing signed by
the parties thereto;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Amendment. The Stock Purchase Agreement is hereby amended by
deleting the reference to "$38.25 per share" in the second recital of the Stock
Purchase Agreement and replacing it with "$39.85 per share".
2. Governing Law. This Amendment, and the legal relations between the
parties hereto, shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements executed and to be performed
solely within such State.
3. Miscellaneous.
(a) No Third Party Beneficiaries. Nothing in this Amendment, expressed
or implied, is intended to confer on any Person other than the parties hereto or
their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Amendment.
(b) Counterparts. This Amendment may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute this Amendment as of the date first above written.
KONINKLIJKE AHOLD N.V.
By: /s/ X. X. Xxxxx
--------------------------------
Name: X. X. Xxxxx
Title: Executive Vice President
AHOLD ACQUISITION INC.
By: /s/ X. X. Xxxxx
--------------------------------
Name: X. X. Xxxxx
Title: President
SMG-II HOLDINGS CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
PTK HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
