Exhibit 4.6
THIRD AMENDMENT TO THE RIGHTS AGREEMENT
BETWEEN
ALBERTSON'S, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
This agreement, made this 26th day of September, 2003, between Albertson's,
Inc. ("Albertson's") and American Stock Transfer & Trust Company ("AST&TC"),
successor to ChaseMellon Shareholder Services, L.L.C. ("CMSS"), as rights agent,
amends the Rights Agreement, dated as of December 9, 1996, between Albertson's
and CMSS (the "Rights Agreement"), as heretofore amended.
WHEREAS, the Board of Directors of Albertson's believes it is in the best
interests of the shareholders of Albertson's to amend the Rights Agreement as
set forth below, and
WHEREAS, under the present circumstances, Section 27 of the Rights
Agreement permits the amendment of the Rights Agreement, and
WHEREAS, Albertson's has directed AST&TC to enter into this agreement,
NOW THEREFORE, intending to be legally bound, Albertson's and AST&TC hereby
agree that the Rights Agreement and the exhibits thereto shall be amended as set
forth below.
1. Section 1(a) of the Rights Agreement is hereby amended in its entirety
to read as follows:
"Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company, or of any Subsidiary of the Company, (iv) any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan, or (v) any Person who becomes
the Beneficial owner of fifteen percent (15%) or more of the shares of
Common Stock then outstanding as a result of a reduction in the number
of shares of Common Stock outstanding, unless and until such Person
thereafter acquires beneficial ownership of additional shares of
Common Stock representing one percent (1%) or more of the shares of
Common Stock then outstanding, other than as a result of a stock
dividend, stock split or similar transaction effected by the Company
in which all holders of Common Stock are treated equally, or (vi) any
such Person who has reported or is required to report such ownership
(but less than 20%) on Schedule 13G under the Securities and Exchange
Act of 1934, as amended and in effect on the date of the Agreement
(the "Exchange Act") (or any comparable or successor report) or on
Schedule 13D under the Exchange Act (or any comparable or successor
report) which Schedule 13D does not state any intention to or reserve
the rights to control or influence the management or policies of the
Company or engage in any of the actions specified in Item 4 of such
schedule (other than the disposition of the Common Stock) and, within
10 Business Days of being requested by the Company to advise it
regarding the same, certifies to the Company that such Person acquired
shares of Common Stock in excess of 14.9% inadvertently or without
knowledge of the terms of the Rights and who or which, together with
all Affiliates and Associates of such Person, thereafter does not
acquire beneficial ownership of additional shares of Common Stock
while the Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding, other than as a result of a stock dividend,
stock split or similar transaction effected by the Company in which
all holders of Common Stock are treated equally, provided, however,
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that if the Person requested to so certify fails to do so within 10
Business Days, then such Person shall become an Acquiring Person
immediately after such 10-Business-Day period."
2. Section 1(b) of the Rights Agreement, which defines the term
"Acquisition Transaction," is hereby deleted in its entirety, all
cross-references to such section are deemed to be deleted, all subsequent
subsections of Section 1 are renumbered accordingly, and all cross-references to
such renumbered sections are changed to refer to such subsections as if
renumbered.
3. Section 1(d) of the Rights Agreement, which defines the term "Beneficial
Owner," is hereby amended in its entirety to read as follows:
"(d) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or after the passage of time)
pursuant to any agreement, arrangement or understanding (whether or
not in writing) or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," (A) securities tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted for purchase
or exchange, (B) securities issuable upon exercise of Rights at any
time prior to the occurrence of a Triggering Event or (C) securities
issuable upon exercise of Rights from and after the occurrence of a
Triggering Event which Rights were acquired by such Person or any of
such Person's Affiliates or Associates prior to the Distribution Date
or pursuant to Section 3(a) or Section 22 hereof (the "Original
Rights") or pursuant to Section 11(i) hereof in connection with an
adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose
of or has "beneficial ownership" of (as determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Exchange Act),
including pursuant to any agreement, arrangement or understanding,
whether or not in writing; provided, however, that a Person shall not
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be deemed the "Beneficial Owner" of, or to "beneficially own," any
security under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such agreement,
arrangement or understanding: (A) arises solely from a revocable proxy
given in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act, and (B) is not
reportable by such Person on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (ii) of
this paragraph (d)) or disposing of any voting securities of the
Company;
provided, however, that nothing in this paragraph (d) shall cause a
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Person engaged in business as an underwriter of securities to be the
"Beneficial Owner" of, or to "beneficially own," any securities
acquired through such Person's participation in good faith in a firm
commitment underwriting until the fortieth day after the date of such
acquisition, and then only if such securities continue to be owned by
such Person on such fortieth day."
4. Section 1(cc) of the Rights Agreement, which defines the term "Stock
Acquisition Date," is hereby amended in its entirety to read as follows:
"`Stock Acquisition Date' shall mean the first date of public
announcement by the Company that an Acquiring Person has become such."
5. The first sentence of Section 3(a) of the Rights Agreement is hereby
amended in its entirety to read as follows:
"Until the earlier of (i) the close of business on the tenth day
after the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the close of business
on the Record Date), or (ii) the close of business on the tenth day
(or such later date as the Board shall determine) after the date that
a tender or exchange offer by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or
of any Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under
the Exchange Act, if upon consummation thereof, such Person would
become an Acquiring Person, (the earlier of (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraphs (b) and (c) of this
Section 3) by the certificates for the Common Stock registered in the
names of the holders of the Common Stock (which certificates for
Common Stock shall be deemed also to be certificates for Rights) and
not by separate certificates, and (y) the Rights will be transferable
only in connection with the transfer of the underlying shares of
Common Stock (including transfer to the Company)."
6. Section 11(a)(ii) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"(ii) Subject to Section 24 of this Agreement, in the event any
Person, alone or together with its Affiliates and Associates, shall,
at any time after the Rights Dividend Declaration Date, become an
Acquiring Person, unless the event causing such Person to become an
Acquiring Person is a transaction set forth in Section 13(a) hereof,
then, promptly following the occurrence of such event, proper
provision shall be made so that each holder of a Right (except as
provided below and in Section 7(e) hereof) shall thereafter have the
right to receive, upon exercise thereof at the then current Purchase
Price in accordance with the terms of this Agreement, in lieu of a
number of one one-thousandths of a share of Preferred Stock, such
number of shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase Price by
the then number of one one-thousandths of a share of Preferred Stock
for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and (y) dividing that product
(which, following such first occurrence, shall thereafter be referred
to as the "Purchase Price" for each Right and for all purposes of this
Agreement) by fifty percent (50%) of the Current Market Price
(determined pursuant to Section 11(d) hereof) per share of Common
Stock on the date of such first occurrence (such number of shares
being referred to herein as the "Adjustment Shares")."
7. Section 23 of the Rights Agreement is hereby amended to read in its
entirety as follows:
"Section 23. Redemption and Termination.
(a) The Board may, at its option, at any time prior to the
earlier of (i) the close of business on the tenth day following the
Stock Acquisition Date (or, if the Stock Acquisition Date has already
occurred prior to the Record Date, the close of business on the tenth
day following the Record Date), or (ii) the Final Expiration Date,
redeem all but not less than all the then outstanding Rights at a
redemption price of $.001 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption Price").
Notwithstanding anything contained in this Agreement to the contrary,
the Rights shall not be exercisable after the first occurrence of a
Section 11(a)(ii) Event until such time as the Company's right of
redemption hereunder has expired. The Company may, at its option, pay
the Redemption Price in cash, shares of Common Stock (based on the
Current Market Price, as defined in Section 11(d)(i) hereof, of the
Common Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board.
(b) Immediately upon the action of the Board ordering the
redemption of the Rights, evidence of which shall be filed by the
Company with the Rights Agent, and without any further action and
without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right so held. Promptly after
the action of the Board ordering the redemption of the Rights, the
Company shall give notice of such redemption to the Rights Agent and
the holders of the then outstanding Rights by mailing such notice to
all such holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice
of redemption will state the method by which the payment of the
Redemption Price will be made."
8. Section 26 of the Rights Agreement is hereby amended by deleting the
name and address of CMSS therein and replacing it with the following:
"American Stock Transfer & Trust Company
59 Maiden Lane
New York, NY 10038
Attention: Joe Wolf".
9. Section 27 of the Rights Agreement is hereby amended in its entirety to
read as follows:
"Section 27. Supplements and Amendments.
Prior to the Distribution Date, the Company may in its sole and
absolute discretion, and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of this Agreement without
the approval of any holders of Rights or certificates representing
shares of Common Stock. From and after the Distribution Date, the
Company may in its sole and absolute discretion, and the Rights Agent
shall, if the Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period
hereunder, or (iv) to change or supplement the provisions hereunder in
any manner which the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate or
Associate of the Acquiring Person) and no such supplement or amendment
shall cause the Rights again to become redeemable or cause this
Agreement again to become supplementable or amendable otherwise than
in accordance with the provisions of this sentence. Upon the delivery
of a certificate from an officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of
this Section 27, the Rights Agent shall execute such supplement or
amendment; provided, however, that the failure or refusal of the
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Rights Agent to execute such supplement or amendment will not affect
the validity of any supplement or amendment adopted by the Board of
Directors of the Company, any of which will be effective in accordance
with the terms thereof. Prior to the Distribution Date, the interests
of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock."
10. Exhibits A, B and C to the Rights Agreement shall be deemed to be
amended in a manner consistent herewith.
11. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as heretofore amended and as amended hereby, and
all references to the Rights Agreement shall be deemed to include this agreement
and all prior amendments.
12. This agreement shall be effective as of the date first written above,
and except as set forth herein, the Rights Agreement shall remain in full force
and effect and otherwise shall be unaffected hereby.
13. This agreement may be executed in any number of counterparts and 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.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the day and year first above written.
ALBERTSON'S, INC.
Attest:
/s/ Kaye L. O'Riordan By: /s/ John R. Sims
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Name: Kaye L. O'Riordan Name: John R. Sims
Title: Vice President Title: Executive Vice President
and Corporate Secretary and General Counsel
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Attest:
/s/ Joseph F. Wolf By: /s/ Herbert J. Lemmer
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Name: Joseph F. Wolf Name: Herbert J. Lemmer
Title: Vice President Title: Vice President