Exhibit 10.58
AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS
AGREEMENT DATED AS OF JULY 30, 1996, AMONG THE
GRAND UNION COMPANY, TREFOIL CAPITAL
INVESTORS II, L.P., AND GE INVESTMENT PRIVATE
PLACEMENT PARTNERS II, A LIMITED PARTNERSHIP
Amendment (this "Amendment"), dated as of June 5, 1997, to the Registration
Rights Agreement (the "Registration Rights Agreement"), dated as of July 30,
1996, among each of (i) The Grand Union Company, a Delaware corporation (the
"Company"), and (ii) Trefoil Capital Investors II, L.P., a Delaware limited
partnership ("Trefoil"), and GE Investment Private Placement Partners II, a
Limited Partnership, a Delaware limited partnership ("GEI," and together with
Trefoil, the "Purchasers"). Capitalized terms used herein without definitions
shall have the meanings given them in the Registration Rights Agreement.
WHEREAS, the Company has entered into an Acceleration and Exchange
Agreement, dated as of June 5, 1997 (the "Acceleration Agreement"), among the
Company, Trefoil, and GEI;
WHEREAS, the Company and the Purchasers desire to amend the Registration
Rights Agreement for the purpose of facilitating the transactions contemplated
by the Acceleration Agreement;
NOW, THEREFORE, in consideration of the foregoing, and the mutual
agreements and covenants contained herein, the parties hereto agree as follows:
Section 1. PREAMBLE. (a) The second paragraph of the preamble is hereby
amended to read as follows:
"WHEREAS, pursuant to a Stock Purchase Agreement among the Company and the
Purchasers (the "Purchase Agreement"), the Company is selling to the purchasers
up to 2,000,000 shares of the Company's Class A Convertible Preferred Stock,
issuable in denominations of $50 stated value per share, dividends on which may
be paid in additional shares of such preferred stock (collectively, the "Class A
Preferred Shares"), which Class A Preferred Shares are convertible into shares
of the Company's common stock, par value $1.00 per share (the "Common Stock");"
(b) The Preamble of the Registration Rights Agreement is hereby amended to
add a new third paragraph to read as follows:
"WHEREAS, pursuant to an Acceleration and Exchange Agreement (the
"Acceleration Agreement"), dated as of June 5, 1997, the Company has agreed to
issue (i) 800,000 shares of the Company's Class B Convertible Preferred Stock,
issuable in denominations of $50 stated value per share, dividends on which may
be paid in additional shares of such preferred stock (collectively, the "Class B
Preferred Shares," and collectively with the Class A Preferred Shares, the
"Preferred Shares"), which Class B Preferred Shares are convertible into shares
of Common Stock, and (ii) up to 2,000,000 shares of Common Stock under certain
circumstances (such
shares of the Common Stock, together with shares of Common Stock into which the
Preferred Shares are convertible and shares of Common Stock which may be issued
as dividends on the Preferred Shares, the "Common Shares" and, collectively with
the Preferred Shares, the "Securities");
Section 2. DEFINITIONS. The definition of the term "Registrable
Securities" in Section 1.1 of the Registration Rights Agreement is hereby
amended to read as follows:
""REGISTRABLE SECURITIES" shall mean any Securities issued at any time to
any of the Purchasers pursuant to the Purchase Agreement or the Acceleration
Agreement and any Securities issued at any time as dividends upon or on
conversion of any of the Securities. As to any proposed offer or sale of
Registrable Securities, such securities shall cease to be Registrable Securities
with respect to such proposed offer or sale when (i) a registration statement
with respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in accordance
with such registration statement or (ii) such securities are permitted to be
disposed of pursuant to Rule 144(k) (or any successor provision to such Rule)
under the Securities Act as confirmed in a written opinion of counsel to the
Company addressed to the Holders, or (iii) such securities shall have been
otherwise transferred pursuant to an applicable exemption under the Securities
Act, new certificates for such securities not bearing a legend restricting
further transfer shall have been delivered by the Company and such securities
shall be freely transferable to the public without registration or qualification
under the Securities Act or any state securities or blue sky law then in place.
Section 3. MISCELLANEOUS.
(a) NOTICES. Any notice under or relating to this Amendment shall be
given in writing and shall be deemed sufficiently given when delivered by hand
or by conformed facsimile transmission, on the second business day after a
writing is consigned (freight prepaid) to a commercial overnight courier, and on
the fifth business day after a writing is deposited in the mail, postage and
other charges prepaid, addressed as follows:
Trefoil II: 0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a copy to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
2
GEI: GE Investment Management Incorporated
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to: Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
the Company: Chief Executive Officer
The Grand Union Company
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000-0000
Telecopy: (000) 000-0000
with a copy to: General Counsel
The Grand Union Company
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxxxx 00000-0000
Telecopy: (000) 000-0000
and
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
and
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
and
3
Xxxxx Xxxxxxxxxx
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address or facsimile number as either party may, from time to
time, designate in a written notice given in like manner.
(b) BINDING EFFECT. The provisions of this Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, assigns, heirs, and personal representatives.
(c) MODIFICATION. This Amendment may only be modified by a written
instrument duly executed by each party hereto.
(d) WAIVER. Any waiver by either party of a breach of any provision
of this Amendment shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Amendment. Any waiver of any provision of this Amendment must be in writing.
(e) HEADINGS. The headings to the sections of this Amendment are
inserted for convenience only and shall not constitute a part hereof or affect
in any way the meaning or interpretation of this Amendment.
(f) SEPARABILITY. If any provision of this Amendment is invalid,
illegal or unenforceable, the balance of this Amendment shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
(g) COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(h) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed and to be fully performed within the State of New York.
4
IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 to
the Registration Rights Agreement dated as of July 30, 1996 as of the date first
written above.
TREFOIL CAPITAL INVESTORS II, L.P.
By: Trefoil Investors II, Inc.
its general partner
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
GE INVESTMENT PRIVATE PLACEMENT PARTNERS II,
A LIMITED PARTNERSHIP
By: GE INVESTMENT MANAGEMENT
INCORPORATED, its general partner
By: /s/ Xxx X. Xxxxx
------------------------------------
Name: Xxx X. Xxxxx
Title: Executive Vice President
THE GRAND UNION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President,
Chief Financial Officer and
Chief Administrator Officer
