SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 3
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U.S. FOODSERVICE
(Exact name of registrant as specified in its charter)
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Delaware 0-24954 52-1634568
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
9755 Patuxent Woods Drive, 21046
Columbia, Maryland (Zip Code)
(Address of principal executive
offices)
Registrant's telephone number, including area code (410) 312-7100
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [x]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [_].
Securities Act registration statement file number to which this form
relates: _______________ (if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Preferred Share Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None.
<PAGE>
Item 1. Description of Registrant's Securities to be Registered
On March 7, 2000, U.S. Foodservice (the "Company"), Koninklijke
Ahold N.V. (the "Parent"), and Snow Acquisition, Inc. (the "Purchaser"),
entered into an Agreement and Plan of Merger (the "Merger Agreement"). The
Merger Agreement provides, among other things, that (i) Purchaser will
commence an offer (the "Offer") to purchase all of the outstanding shares of
common stock, par value $0.01 per share, of the Company (the "Common Stock"),
including the associated preferred share purchase rights (the "Rights")
issued pursuant to the Amended and Restated Rights Agreement, dated as of
October 4, 1999 (as amended and as may be amended from time to time, the
"Rights Agreement"), between the Company and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent (the "Rights Agent"), and (ii) after the
consummation of the Offer, Purchaser would be merged with and into the
Company (the "Merger").
In connection with the Merger Agreement, the Company executed an
amendment, dated March 6, 2000 (the "Rights Amendment"), to the Rights
Agreement. The Rights Amendment provides, among other things, that (i)
neither a "Shares Acquisition Date" nor a "Distribution Date" (as such terms
are defined in the Rights Agreement) will occur, and none of Parent,
Purchaser nor any of their affiliates or associates will be deemed to be an
"Acquiring Person" (as such term is defined in the Rights Agreement), by
reason of the execution or delivery of the Merger Agreement or the
consummation of the transactions to be effected pursuant to the Merger
Agreement and (ii) the Rights will expire immediately prior to the
consummation of the Offer.
A summary of the Rights as amended follows.
Summary of Rights
The following summary description of the Rights is not complete and
is subject to the provisions of the Rights Agreement. A copy of the Rights
Agreement as in effect on the date of this amendment is incorporated by
reference as Exhibit 8 to this Amendment No. 3 to this registration statement
on Form 8-A.
Each outstanding share of Common Stock has or will have attached to
it one preferred share purchase right, which we refer to herein as a "Right."
Each Right entitles the registered holder of Common Stock to purchase from
the Company, upon the occurrence of specified events, one one-hundredth of a
share of Series A Junior Participating Preferred Stock of the Company, which
we refer to herein as the "Preferred Shares," at a price of $95 per one
one-hundredth of a Preferred Share, subject to adjustment.
<PAGE>
On February 19, 1996, which is the date the Company entered into
the original rights agreement, the board of directors of the Company declared
a dividend of one Right for each outstanding share of Common Stock. The
dividend was payable on March 1, 1996 to the stockholders of record on that
date.
Until the Distribution Date described in the following paragraph,
the Company will not issue separate certificates evidencing the Rights.
Until that date, the Rights will be evidenced, with respect to any Common
Stock certificate, by that Common Stock certificate or, with respect to any
Common Stock certificate outstanding as of March 1, 1996, by that Common
Stock certificate with an attached copy of a summary of the Rights.
The Rights will detach from the Common Stock and a Distribution
Date will occur upon the earlier of the following dates:
- subject to the exceptions described below, the 10th day
following a public announcement that an "Acquiring Person,"
which, subject to the exceptions listed in the following
sentence, includes a person or "group" of affiliated or
associated persons, has acquired beneficial ownership of 10%
or more of the outstanding Common Stock, or
- the 10th business day, or a later date determined by the
Company board of directors before the time any person or group
becomes an Acquiring Person, following the commencement by any
person or group of, or the first public announcement by any
person or group of an intention to commence, a tender offer or
exchange offer that would result in:
- beneficial ownership by a person or group of 10% or more
of the outstanding Common Stock, or
- any person otherwise being deemed an Acquiring Person.
The term "Acquiring Person" does not include the Company, any
subsidiary of the Company, any employee benefit plan of the Company or any
subsidiary of the Company, or any entity holding Common Stock for or under an
employee benefit plan of the Company or any of its subsidiaries. In
addition, a person who would otherwise be an Acquiring Person will not be
considered an Acquiring Person if the board of directors of the Company
determines in good faith that such a person inadvertently became the
beneficial owner of 10% or more of the Common Stock and such person divests
itself, as promptly as practicable, of beneficial ownership of a sufficient
number of shares of Common Stock so that it would no longer otherwise qualify
as an Acquiring Person.
<PAGE>
References in the preceding paragraph to beneficial ownership of
10% of the outstanding Common Stock are references to 15% of the outstanding
Common Stock with respect to any person who is eligible to report its
beneficial ownership of, or who will or would be eligible upon acquisition
of, equity securities of the Company, including Common Stock, on Schedule 13G
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and, without limiting the foregoing, with respect to whom clause (i) of
paragraph (b)(l) of Rule 13d-1 under the Exchange Act is true and correct.
The Rights Agreement provides that, until the Distribution Date, or
earlier redemption or expiration of the Rights, the Rights will be
transferred with and only with the Common Stock. Until the Distribution
Date, or earlier redemption or expiration of the Rights, new Common Stock
certificates issued after March 1, 1996 upon transfers or new issuances of
Common Stock will contain a notation incorporating the Rights Agreement by
reference, and the surrender for transfer of any certificates for Common
Stock also will constitute the transfer of the Rights associated with the
Common Stock represented by that certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date, and the separate right certificates alone
will evidence the Rights. Only Common Stock issued before the Distribution
Date will be issued with Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on February 19, 2006, unless the expiration date is
extended or unless the Rights are earlier redeemed or exchanged by the
Company, in each case as described below.
The purchase price payable for the Preferred Shares, the number of
Preferred Shares or other securities or property issuable upon exercise of
the Rights and the number of Rights outstanding are subject to adjustment
from time to time pursuant to customary antidilution provisions. The number
of outstanding Rights and the number of one one-hundredths of a Preferred
Share issuable upon exercise of each Right also are subject to adjustment in
the event of a dividend on the Common Stock payable in Common Stock or
subdivisions, combinations or consolidations of the Common Stock, by
reclassification or otherwise than by payment of dividends in Common Stock,
occurring, in any of those cases, before the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1.00 per share, but will be
entitled to an aggregate dividend of 100 times the dividend declared per
share of Common Stock. If there is a liquidation, the holders of the
Preferred Shares will be entitled to a minimum preferential liquidation
payment of $100 per share, but will be entitled to an aggregate payment of
<PAGE>
100 times the payment made per share of Common Stock. Each Preferred Share
will have 100 votes, voting together with the Common Stock. If there is a
merger, consolidation or other transaction in which Common Stock is
exchanged, each Preferred Share will be entitled to receive 100 times the
amount received per share of Common Stock. These rights are protected by
customary antidilution provisions. Because of the nature of the dividend,
liquidation and voting Rights of the Preferred Shares, the value of the one
one-hundredth interest in a Preferred Share purchasable upon exercise of each
Right should approximate the value of one share of Common Stock.
If any person or group becomes an Acquiring Person, proper
provision will be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person, which will thereafter be void,
will have the right to receive upon exercise of the Right at the then-current
exercise price, instead of Preferred Shares, that number of shares of Common
Stock having a market value of two times the exercise price of the Right. If
the Company does not have sufficient Common Stock issued but not outstanding,
or authorized but unissued, to permit the exercise in full of the Rights, the
Company will be required to take all action necessary to authorize additional
Common Stock for issuance upon exercise of the Rights. If, after a
good-faith effort, the Company is unable to take all necessary action, the
Company will substitute, for each share of Common Stock that would otherwise
be issuable upon exercise of a Right, a number of Preferred Shares, or
fractional Preferred Shares, with the same market value as that share of
Common Stock.
If, after a person or group has become an Acquiring Person, the
Company is acquired in a merger or other business combination transaction or
50% or more of its consolidated assets or earning power are sold, proper
provision will be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person, which will thereafter be void,
will have the right to receive, upon the exercise of the Right at its
then-current exercise price and instead of Preferred Shares, that number of
shares of Common Stock of the acquiring company which at the time of the
transaction will have a market value of two times the exercise price of the
Right.
The exercise price of a Right at any date will be equal to the
purchase price at that date multiplied by the number of one one-hundredths of
a Preferred Share for which a Right is exercisable at such date.
At any time after any person or group becomes an Acquiring Person
and before the acquisition by that person or group of 50% or more of the
outstanding Common Stock, the board of directors of the Company may exchange
the Rights, in whole or in part, for Common Stock at an exchange ratio of one
share of Common Stock for each Right, subject to adjustment. The board of
<PAGE>
directors of the Company will not be empowered to exchange the Rights owned
by the Acquiring Person or group, which will have become void.
With specified exceptions, no adjustment in the purchase price for
the Preferred Shares will be required until cumulative adjustments require an
adjustment of at least 1% of that purchase price. The Company will not be
required to issue fractional Preferred Shares, other than fractions which are
integral multiples of one one-hundredth of a Preferred Share, which may, at
the election of the Company, be evidenced by depositary receipts. Instead of
issuing fractional Preferred Shares, the Company will make an adjustment in
cash based on the market price of the Preferred Shares on the last trading
day before the date of exercise.
Upon approval by its board of directors, the Company may redeem the
Rights in whole, but not in part, at any time before any person or group
becomes an Acquiring Person, at a nominal price. The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the board of directors of the Company may establish in its sole
discretion. Immediately upon the action of the board of directors of the
Company ordering redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of the Rights will be to
receive the redemption price specified above.
Until a Right is exercised, the holder of the Right, in the
capacity of a holder, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive dividends.
Although the distribution of the Rights will not be taxable to stockholders
or to the Company, stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become exercisable for
Common Stock of the Company or other consideration, or for Common Stock of
the acquiring company as set forth above.
The Rights Agreement may be amended or supplemented by the Company
from time to time without the approval of any holders of Rights to cure any
ambiguity, to correct or supplement any defective or inconsistent provisions,
or to make any other provisions with respect to the Rights which the Company
may deem necessary or desirable, provided that, from and after the time that
any person or group becomes an Acquiring Person, the Rights Agreement may not
be amended in any manner which would adversely affect the interest of the
holders of Rights.
This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which is incorporated in this summary description by reference.
All capitalized terms not defined herein shall have the meanings ascribed to
them in the Rights Agreement, as amended.
<PAGE>
Item 2. Exhibits.
1. Rights Agreement, dated as of February 19, 1996, between the
Company and The Bank of New York, as Rights Agent (the
"Original Rights Agreement") (incorporated by reference to
Exhibit 1 to the Company's Registration Statement on Form
8-A dated February 22, 1996 (Commission File No. 000-
24954)).
2. Amendment No. 1 to the Original Rights Agreement, dated as
of May 17, 1996 (incorporated by reference to Exhibit 10.26
to Amendment No. 1 to the Company's Registration Statement
on Form S-3 (Commission File No. 333-07321)).
3. Amendment No. 2 to the Original Rights Agreement, dated as
of September 26, 1996 (incorporated by reference to Exhibit
10.1 to Amendment No. 2 to the Company's Registration
Statement on Form S-3 (Commission File No. 333-14039)).
4. Amendment No. 3 to the Original Rights Agreement, dated as
of June 30, 1997 (incorporated by reference to Exhibit 4.1
to the Company's Current Report on Form 8-K filed on July 2,
1997).
5. Amendment No. 4 to the Original Rights Agreement, dated as
of December 23, 1997 (incorporated by reference to the
Company's Current Report on Form 8-K filed on January 7,
1998).
6. Amendment No. 5 to the Original Rights Agreement, dated as
of March 25, 1999 (incorporated by reference to the
Company's Current Report on Form 8-K filed on March 26,
1999).
7. Amendment No. 6 to the Original Rights Agreement, dated as
of April 22, 1999 (incorporated by reference to the
Company's Current Report on Form 8-K filed on April 22,
1999).
8. Amended and Restated Rights Agreement, dated as of October
4, 1999, between the Company and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent, which includes the
Certificate of Designations for the Series A Junior
Participating Preferred Stock as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary of Rights to
Purchase Preferred Shares as Exhibit C. Pursuant to the
Rights Agreement, printed Rights Certificates will not be
<PAGE>
mailed until as soon as practicable after the earlier of the
tenth day after public announcement that a person or group
has acquired beneficial ownership of 10% (or 15%, in the
case of a person who is eligible to report its beneficial
ownership of (or will or would be upon acquisition of)
equity securities of the Company) or more of the Common
Shares or the tenth business day (or such later date as may
be determined by action of the Board of Directors) after a
person commences, or announces its intention to commence, a
tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or
group of 10% or more of the Common Shares. (Incorporated by
reference to Exhibit 4.4 to the Company's Registration
Statement on Form S-3 filed on December 22, 1999
(Commission File No. 333-93453)).
9. Amendment No. 1, dated as of March 6, 2000, to the Amended
and Restated Rights Agreement, between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent.*
* Filed herewith.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Exchange Act, the
registrant has duly caused this amendment to the registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
U.S. FOODSERVICE
DATED: March 7, 2000 By: /s/ David M. Abramson
----------------------------------
Name: David M. Abramson
Title: Executive Vice President
and General Counsel
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
1 Rights Agreement, dated as of February
19, 1996, between the Company and The
Bank of New York, as Rights Agent (the
"Original Rights Agreement")
(incorporated by reference to Exhibit
1 to the Company's Registration
Statement on Form 8-A dated February
22, 1996 (Commission File No. 000-
24954)).
2 Amendment No. 1 to the Original Rights
Agreement, dated as of May 17, 1996
(incorporated by reference to Exhibit
10.26 to Amendment No. 1 to the
Company's Registration Statement on
Form S-3 (Commission File No.
333-07321)).
3 Amendment No. 2 to the Original Rights
Agreement, dated as of September 26,
1996 (incorporated by reference to
Exhibit 10.1 to Amendment No. 2 to the
Company's Registration Statement on
Form S-3 (Commission File No.
333-14039)).
4 Amendment No. 3 to the Original Rights
Agreement, dated as of June 30, 1997
(incorporated by reference to Exhibit
4.1 to the Company's Current Report on
Form 8-K filed on July 2, 1997).
5 Amendment No. 4 to the Original Rights
Agreement, dated as of December 23,
1997 (incorporated by reference to the
Company's Current Report on Form 8-K
filed on January 7, 1998).
6 Amendment No. 5 to the Original Rights
Agreement, dated as of March 25, 1999
(incorporated by reference to the
<PAGE>
Company's Current Report on Form 8-K
filed on March 26, 1999).
7 Amendment No. 6 to the Original Rights
Agreement, dated as of April 22, 1999
(incorporated by reference to the
Company's Current Report on Form 8-K
filed on April 22, 1999).
8 Amended and Restated Rights Agreement,
dated as of October 4, 1999, between
the Company and ChaseMellon
Shareholder Services, L.L.C., as
Rights Agent, which includes the
Certificate of Designations for the
Series A Junior Participating
Preferred Stock as Exhibit A, the form
of Right Certificate as Exhibit B and
the Summary of Rights to Purchase
Preferred Shares as Exhibit C.
Pursuant to the Rights Agreement,
printed Rights Certificates will not
be mailed until as soon as practicable
after the earlier of the tenth day
after public announcement that a
person or group has acquired
beneficial ownership of 10% (or 15%,
in the case of a person who is
eligible to report its beneficial
ownership of (or will or would be upon
acquisition of) equity securities of
the Company) or more of the Common
Shares or the tenth business day (or
such later date as may be determined
by action of the Board of Directors)
after a person commences, or announces
its intention to commence, a tender
offer or exchange offer the
consummation of which would result in
the beneficial ownership by a person
or group of 10% or more of the Common
Shares. (Incorporated by reference to
Exhibit 4.4 to the Company's
Registration Statement on Form S-3
filed on December 22, 1999
(Commission File No. 333-93453)).
<PAGE>
9 Amendment No. 1, dated as of March 6,
2000, to the Amended and Restated
Rights Agreement, dated as of October
4, 1999, between the Company and
ChaseMellon Shareholder Services,
L.L.C., as Rights Agent.*
_____________
* Filed herewith.
<PAGE>
EXHIBIT 9
AMENDMENT, dated as of March 6, 2000 (the "Amendment"), to the
Amended and Restated Rights Agreement, dated as of October 4, 1999 (the
"Rights Agreement"), between U.S. Foodservice, a Delaware corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C., as Rights Agent
(the "Rights Agent").
RECITALS
The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
The Company, Snow Acquisition, Inc., a Delaware corporation
("Purchaser"), and Koninklijke Ahold N.V., a company organized under the laws
of The Netherlands ("Parent"), are entering into an Agreement and Plan of
Merger, dated as of March 7, 2000 (as amended or supplemented from time to
time, the "Merger Agreement"), contemplating a tender offer and merger
pursuant to which Purchaser shall make an offer to purchase all of the
outstanding common stock, par value $0.01 per share, of the Company (the
"Offer"), and, after the consummation of the Offer, Purchaser shall be merged
with and into the Company (the "Merger");
Pursuant to Section 27 of the Rights Agreement, the Company may, in
its sole and absolute discretion, supplement and amend the Rights Agreement;
The Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and
desirable in connection with the foregoing and the Company and the Rights
Agent desire to evidence such amendment in writing; and
All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed,
and the execution and delivery of this Amendment by the Company and the
Rights Agent have been in all respects duly authorized by the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Defined Terms: Capitalized terms used herein without
definition shall have the meanings assigned to such terms in the Rights
Agreement.
2. Amendment of Section 1. (a) The definition of "Acquiring
Person" in Section 1(a) of the Rights Agreement is amended by adding the
following sentence at the end thereof:
<PAGE>
2
"Notwithstanding anything in this Agreement to the
contrary, neither Koninklijke Ahold N.V. ("Parent"), Snow
Acquisition, Inc. ("Purchaser"), nor any of their
Affiliates or Associates shall be deemed to be an
Acquiring Person solely by virtue of (i) the approval,
execution, delivery or performance of the Merger
Agreement, (ii) the making or consummation of the Offer
or the Merger in accordance with the provisions of the
Merger Agreement or any public announcement relating
thereto, (iii) the acquisition of Common Shares in
accordance with the provisions of the Merger Agreement
pursuant to the Offer or the Merger or (iv) the
consummation of any other transaction to be effected
pursuant to the Merger Agreement in accordance with the
provisions thereof."
(b) Section 1 of the Rights Agreement is supplemented by adding
the following definitions in the appropriate locations therein:
"Agreement" shall mean this Amended and Restated
Rights Agreement between U.S. Foodservice (formerly known
as JP Foodservice, Inc.), a Delaware corporation, and
ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, amended as of March 6, 2000, and as may be amended
thereafter from time to time.
"Merger" shall have the meaning set forth in the
Merger Agreement.
"Merger Agreement" shall mean the Agreement and
Plan of Merger, dated as of March 7, 2000, between the
Company, Parent and Purchaser, as it may be amended,
supplemented or replaced from time to time.
"Offer" shall have the meaning set forth in the
Merger Agreement.
(c) The definition of "Shares Acquisition Date" in Section 1(l)
of the Rights Agreement is amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the
contrary, a Shares Acquisition Date shall not be deemed
to have occurred solely as the result of (i) the
approval, execution, delivery or performance of, or
public announcement of the approval, execution, delivery
or performance of, the Merger Agreement, (ii) the making
<PAGE>
3
or consummation of the Offer or the Merger in accordance
with the provisions of the Merger Agreement or any public
announcement relating thereto, (iii) the acquisition of
Common Shares in accordance with the Merger Agreement
pursuant to the Offer or the Merger or (iv) the
consummation of any other transaction to be effected
pursuant to the Merger Agreement in accordance with the
provisions thereof or any public announcement relating
thereto."
3. Amendment of Section 3(a). Section 3(a) of the Rights
Agreement is amended by adding the following sentence immediately following
the first sentence:
"Notwithstanding anything in this Agreement to the
contrary, a Distribution Date shall not be deemed to have
occurred solely as the result of (i) the approval,
execution, delivery or performance of, or public
announcement of the approval, execution, delivery or
performance of, the Merger Agreement, (ii) the
commencement, making or consummation of the Offer or the
consummation of the Merger in accordance with the
provisions of the Merger Agreement or any public
announcement relating thereto, (iii) the acquisition of
Common Shares in accordance with the Merger Agreement
pursuant to the Offer or the Merger or (iv) the
consummation of any other transaction to be effected
pursuant to the Merger Agreement in accordance with the
provisions thereof or any public announcement relating
thereto."
4. Amendment of Section 7(a). Clauses numbered (i), (ii) and
(iii) in Section 7(a) of the Rights Agreement are hereby deleted and replaced
in their entirety as follows:
"(i) the close of business on February 19, 2006 (the
"Final Expiration Date"), (ii) immediately prior to the
time at which the consummation of the Offer occurs, (iii)
the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption Date") or (iv) the
time at which the Rights are exchanged as provided in
Section 24 hereof."
5. Amendment of Section 11(a)(ii). Section 11(a)(ii) of the
Rights Agreement is amended by adding the following sentence at the end
thereof:
<PAGE>
4
"Notwithstanding anything in this Agreement to the
contrary, none of (i) the approval, execution, delivery
or performance of the Merger Agreement, (ii) the
consummation of the Offer or the Merger in accordance
with the provisions of the Merger Agreement, (iii) the
acquisition of Common Shares in accordance with the
Merger Agreement pursuant to the Offer or the Merger or
(iv) the consummation of any other transaction to be
effected pursuant to the Merger Agreement in accordance
with the provisions of the Merger Agreement shall cause
the Rights to be adjusted or become exercisable in
accordance with this Section 11(a)(ii)."
6. Amendment of Section 13. Section 13 of the Rights Agreement
is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary, none of (i) the approval, execution, delivery
or performance of the Merger Agreement, (ii) the
consummation of the Offer or the Merger in accordance
with the provisions of the Merger Agreement, (iii) the
acquisition of Common Shares in accordance with the
Merger Agreement pursuant to the Offer or the Merger or
(iv) the consummation of any other transaction to be
effected pursuant to the Merger Agreement in accordance
with the provisions of the Merger Agreement shall be
deemed an event of the type described in clauses (a), (b)
or (c) of this Section 13 and shall not cause the Rights
to be adjusted or exercisable in accordance with the
terms of this Section 13."
7. Amendment of Section 29. Section 29 of the Rights Agreement
is amended by adding the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or
equitable rights, remedies or claims under this Agreement
by virtue of the execution, delivery, approval or
performance of the Merger Agreement or by virtue of the
commencement or consummation of any of the transactions
to be effected pursuant to the Merger Agreement in
accordance with the provisions of the Merger Agreement."
8. 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.
<PAGE>
5
9. Miscellaneous. This Amendment shall be deemed to be a
contract made under the laws of the State of New York 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, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and
shall in no way be effected, impaired or invalidated.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date and year first
above written.
Attest: U.S. FOODSERVICE
By: /s/ David M. Abramson By: /s/ James L. Miller
---------------------------------- -------------------------------
Name: David M. Abramson Name: James L. Miller
Title: Executive Vice President and Title: President and Chief
General Counsel Executive Officer
Attest: CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Rights Agent
By: Robert G. Scott By: Deborah Bass
------------------------------- --------------------------------
Name: Robert G. Scott Name: Deborah Bass
Title: Vice President Title: Relationship Manager
