EXHIBIT 2
AMENDMENT TO THE RIGHTS AGREEMENT
AMENDMENT, dated as of July 16, 2001 (the "Amendment"), to the Amended
and Restated Stockholders Rights Agreement, amended and restated as of April 13,
2000 and October 12, 2000 (the "Rights Agreement"), by and between Peapod, Inc.,
a Delaware corporation (the "Company"), and First Chicago Trust Company of New
York, a division of Equiserve (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof;
WHEREAS, the Company intends to enter into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of July 16, 2001, among the Company,
Koninklijke Ahold N.V., a public company with limited liability organized and
existing under the laws of The Netherlands ("Royal Ahold"), Ahold U.S.A.
Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Royal
Ahold ("Ahold") and Bean Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Ahold (all capitalized terms used in this Amendment and not
otherwise defined herein shall have the meaning ascribed thereto in the Merger
Agreement);
WHEREAS, the Board of Directors of the Company has approved the Merger
Agreement and determined that the Merger Agreement and the transactions
contemplated thereby, including the Merger and the Tender Offer, are advisable,
fair to and in the best interests of the Company and its common stockholders
(other than Royal Ahold and its Affiliates); and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its common stockholders (other than Royal Ahold and
its Affiliates), and has deemed it necessary and desirable to amend the Rights
Agreement to render it inapplicable to the Tender Offer, the Merger and the
other transactions contemplated thereby.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1 of the Rights Agreement is hereby amended by adding the
following sentence immediately after subparagraph (nn) and by renumbering the
remaining subparagraphs of Section 1 appropriately:
(oo) "Tender Offer" shall have the meaning set forth in the Agreement
and Plan of Merger, dated as of July 16, 2001 (the "Merger
Agreement"), among the Company, the Investor, Ahold U.S.A. Holdings,
Inc., a Delaware corporation and an indirect wholly owned subsidiary
of the Investor ("Ahold"), and Bean
Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Ahold ("Purchaser").
2. Section 1(a) of the Rights Agreement is hereby amended by adding
the following new paragraph at the end of that Section:
Notwithstanding anything in this Agreement to the contrary, none of
the Investor, Ahold or Purchaser or any of their Affiliates or
Associates shall be deemed an Acquiring Person and none of a
Distribution Date, a Share Acquisition Date or a Triggering Event
shall be deemed to occur or to have occurred, and that the Rights will
not become separable, distributable, unredeemable or exercisable, in
each such case, solely by reason or solely as a result of (i) the
approval, execution or delivery of the Merger Agreement, (ii) the
consummation of the Merger (as defined in the Merger Agreement), (iii)
the commencement or consummation of the Tender Offer or any of the
other transactions contemplated by the Merger Agreement or (iv) the
announcement of any of the foregoing.
3. Section 3(a) of the Rights Agreement is hereby modified, amended
and supplemented by adding, after each reference to "Exempt Person" in the
parentheticals in subclause (ii) of the first sentence of Section 3(a), the
following:
", the Investor, any of the Investor's Affiliates or Associates or
Permitted Transferees (as defined in the Purchase Agreement)"
4. Section 7(a) of the Rights Agreement is hereby modified, amended
and restated in its entirety as follows:
"Subject to Section 7(d), the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein), in whole or in part, at any time after the
Distribution Date and prior to the earliest of (i) the time
immediately prior to the completion of the Tender Offer, (ii) the
Close of Business on the tenth anniversary of the Record Date (the
"Final Expiration Date"), (iii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption Date"), and
(iv) the time at which such Rights are exchanged as provided in
Section 24 hereof, upon surrender of such Rights Certificate, with the
Form of Election to Purchase and Certification of Status on the
reverse side thereof duly executed, together with such signature
guarantees and other documentation as the Rights Agent may reasonably
request, to the Rights Agent at its principal office, accompanied by
payment (as provided in subsection (c) of this Section 7) of the
Exercise price for each one one-hundredth of
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a Preferred Share (or after a Triggering Event, the securities, cash
and other property purchasable in lieu thereof) as to which the
surrendered Rights are then being exercised."
5. This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
Attest: PEAPOD, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxx xxx Xxxxxx
--------------------------------------- ---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxx xxx Xxxxxx
Title: Chairman and Chief Financial Officer Title: Chief Executive Officer
Attest: FIRST CHICAGO TRUST
COMPANY OF NEW YORK,
A DIVISION OF
EQUISERVE (As Rights Agent)
By: /s/ Xxxx Xxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------- ---------------------------------------
Name: Xxxx Xxxx Name: Xxxxx X. Xxxxxxxx
Title: Notary Public Title: Senior Account Manager
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