Exhibit 4.1
AMENDMENT TO RIGHTS AGREEMENT
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THIS AMENDMENT TO RIGHTS AGREEMENT, dated as of June 30, 1997 (this
"Amendment"), is made and entered into by Xxxxxx-Xxxxxx, Inc., a Delaware
corporation (the "Company") and Xxxxx Xxxxxx Shareholder Services L.L.C., as
successor in interest to Chemical Bank (the "Rights Agent").
RECITALS
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WHEREAS, the Board of Directors of the Company (the "Board") has
approved an Agreement and Plan of Merger, dated as of June 30, 1997 (as the same
may be amended from time to time, the "Merger Agreement"), by and between the
Company and JP Foodservice, Inc., a Delaware corporation ("JP"), providing for
the Merger of the Company with and into Xxxxxx Acquisition Corp., a wholly-owned
subsidiary of JP ("Merger Sub"), with Merger Sub as the surviving corporation
(the "Merger");
WHEREAS, the Board has approved a Stock Option Agreement, dated as of
June 30, 1997 (as the same may be amended from time to time, the "Company Option
Agreement"), by and between the Company and JP pursuant to which the Company has
granted JP the option, on the terms and conditions stated therein, to purchase
shares of the Company's outstanding Common Stock, $.10 par value per share;
WHEREAS, the Company is a party to an Amended and Restated Rights
Agreement, dated as of May 15, 1996 (the "Rights Agreement");
WHEREAS, as a condition and inducement of JP's willingness to enter
into the Merger Agreement and the JP Option Agreement (as defined in the Merger
Agreement), JP has requested that the Company agree, and the Company has agreed,
to execute and deliver this Amendment in order to permit, inter alia, execution
and delivery of the Merger Agreement and the Company Option Agreement and the
consummation of the transactions contemplated thereby without causing the Rights
to become exercisable; and
WHEREAS, the Board has determined that this Amendment is necessary and
desirable to effectuate the purposes of the Rights Agreement;
NOW, THEREFORE, in accordance with Section 26 of the Rights Agreement,
the Company and the Rights Agent hereby agree as follows:
1. Certain Definitions. (a) Capitalized terms used herein without other
definition shall have the meanings ascribed to such terms in the Rights
Agreement, as heretofore amended.
(b) The definition of "Acquiring Person" in Section 1(a) of the
Rights Agreement is amended by deleting the word "or" prior to "(iv)" and by
adding the following new clause (v) after the word "thereto" at the end of
clause (iv) and before the period at the end of such definition:
", or (v) neither JP nor any Affiliate or Associate of JP shall be deemed
to be or to have become an Acquiring Person (I) solely as a result of the
execution and delivery of the Merger Agreement, the Support Agreement and
the Company Option Agreement or the consummation of the transactions
contemplated thereby, or (II) solely as a result of JP or any Affiliate or
Associate of JP being or becoming the Beneficial Owner of not more than two
percent of the Common Stock then outstanding (in addition to the Common
Stock that JP has become the Beneficial Owner of as the result of its
execution and delivery of the Merger Agreement, the Support Agreement and
the Company Option Agreement), excluding, however, for purposes of
determining whether such two percent limitation has been exceeded, Common
Stock that JP would be deemed the Beneficial Owner of because any JPFI
Benefit Plan (as that term is defined in the Merger Agreement) is the
Beneficial Owner of such Common Stock as of the date of the Amendment"
(c) The definition of "Expiration Date" in Section 7(a) of the Rights
Agreement is amended by deleting the word "or" prior to "(ii)" and by adding the
following new clause (iii) after the words "Section 23" at the end of clause
(ii) thereof:
", or (iii) immediately prior to the Effective Time (as that term is
defined in the Merger Agreement)"
(d) Section 1(k) of the Rights Agreement is hereby amended by adding
the following new subsections immediately thereafter:
"(l) "Company Option Agreement" means that certain Stock Option Agreement,
dated as of June 30, 1997, by and between the Company and JP, by which
the Company will grant to JP an option to purchase up to 19.9% of the
Common Stock, subject to and upon the terms specified therein, as the
same may be amended from time to time.
(m) "JP" means JP Foodservice, Inc., a Delaware corporation.
(n) "Merger Agreement" means that certain Agreement and Plan of Merger,
dated as of June 30, 1997, by and among the Company, Xxxxxx
Acquisition Corp. and JP, as the same may be amended from time to
time.
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(o) "Support Agreement" means that certain Support Agreement, dated as of
June 30, 1997, by and between JP and the ML Entities."
2. Amendment of Flip-in Event. Section 11(a)(ii)(B) of the Rights
Agreement is amended by adding the following after the semicolon at the end
thereof:
"provided, further, however, that notwithstanding the foregoing, no event
described in this Section 11(a)(ii)(B) shall be deemed to have occurred (x)
solely as the result of the execution and delivery of the Merger Agreement,
the Support Agreement and the Company Option Agreement or the consummation
of the transactions contemplated thereby, or (y) solely as a result of JP
or any of its Affiliates or Associates being or becoming the Beneficial
Owner of not more than two percent of the Common Stock then outstanding (in
addition to the Common Stock that JP has become the Beneficial Owner of as
the result of its execution and delivery of the Merger Agreement, the
Support Agreement and the Company Option Agreement), excluding, however,
for purposes of determining whether such two percent limitation has been
exceeded, Common Stock that JP would be deemed the Beneficial Owner of
because any JPFI Benefit Plan (as that term is defined in the Merger
Agreement) is the Beneficial Owner of as of the date of the Amendment;"
3. Amendment of Flip-over Event. Section 13(a)(x) of the Rights
Agreement is amended by adding the phrase "(other than JP or Merger Sub (as
defined in the Merger Agreement) pursuant to the Merger Agreement)" after the
word "Person" and before the word "and".
4. Effective Time. This Amendment shall be effective immediately prior
to the execution and delivery of the Merger Agreement and the Company Option
Agreement.
5. Full Force. Except as expressly amended hereby, the Rights Agreement
shall continue in full force and effect in accordance with the provisions
thereof on the date hereof.
6. Governing Law and Document. This Amendment shall be deemed to be a
contract made under the internal substantive laws of the State of Delaware and
for all purposes shall be governed by and construed in accordance with the
internal substantive laws of such State applicable to contracts to be made and
performed entirely within such State. This Amendment is an amendment to the
Rights Agreement pursuant to Section 26 of the Rights Agreement.
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IN WITNESS WHEREOF, the Company has caused this Amendment to be duly
executed as of the day and year first above written.
XXXXXX-XXXXXX, INC.
By:/s/ Xxxx Xxx Xxxxxxxxxxxx
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Name: Xxxx Xxx Xxxxxxxxxxxx
Title: Chairman and
Chief Executive Officer
Attest:
By:/s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Executive Vice President
and General Counsel
AGREED TO AND ACCEPTED.
XXXXX XXXXXX SHAREHOLDER SERVICES L.L.C.
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
Date: June 30, 1997
Attest:
By:/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
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