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EXHIBIT 4.3
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Amendment No. 2 to Rights Agreement dated as of November 22, 2000,
amending the Rights Agreement dated as of May 16, 1997, (as amended, the
"Agreement") between Performance Food Group Company, a Tennessee corporation
(the "Company"), and American Stock Transfer Trust Company (the "Rights
Agent").
WHEREAS, on May 16, 1997, the Company and the Rights Agent entered
into the Agreement;
WHEREAS, Section 27 of the Agreement provides that prior to the
Distribution Date, the Company may amend the Agreement without the approval of
any holders of Common Shares;
WHEREAS, on October 19, 2000, the Company's Board of Directors
authorized this Amendment; and
WHEREAS, the Company and the Rights Agent wish to amend the Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereby agree as follows:
1. Section 1(j) of the Agreement is hereby amended in its entirety to read
as follows:
(j) [intentionally left blank].
2. Section 3(a)(ii) of the Agreement is hereby amended in its entirety to
read as follows:
(ii) the Close of Business on such date as a majority of the Board
shall determine, which date shall follow the commencement of a tender
offer (as determined by reference to Rule 14d-2(a) under the Exchange Act)
or exchange offer by any Person, (the earlier of (i) and (ii) above being
the "Exercisability Date"),
the Rights:
(x) will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for shares of
Common Stock registered in the names of the holders thereof as of and
subsequent to the Record Date (which certificates for shares of Common
Stock shall be deemed also to be certificates for Rights) and not by
separate certificates, and
(y) will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company).
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As soon as practicable after the Exercisability Date, the Rights Agent will
send at the expense of the Company by first-class, postage prepaid mail, to
each record holder of shares of Common Stock as of the Close of Business on the
Exercisability Date, at the address of such holder shown on the records of the
Company, a certificate for Rights, substantially in the form of Exhibit A
attached hereto (the "Rights Certificate"), evidencing one Right for each share
of Common Stock so held, subject to adjustment as provided herein. In the event
that an adjustment in the number of Rights per share of Common Stock has been
made pursuant to Section 11 hereof, then at the time of distribution of the
Rights Certificates, the Company shall make the necessary and appropriate
rounding adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights. As of and after the Exercisability
Date, the Rights will be evidenced solely by such Rights Certificates.
3. Section 3(c) of the Agreement is hereby amended in its entirety to read
as follows:
(c) Rights shall, without any further action, be issued in respect
of all shares of Common Stock which are issued (including any shares of Common
Stock held in treasury) after the Record Date but prior to the earlier of the
Exercisability Date and the Expiration Date. Certificates representing such
shares of Common Stock issued after the Record Date shall bear the following
legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in the Rights Agreement between
Performance Food Group Company (the "Company") and American Stock
Transfer Trust Company (as successor "Rights Agent") dated as of May
16, 1997, as amended (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on file
at the principal office of the stock transfer administration office of
the Rights Agent. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. The
Company will mail to the holder of this certificate a copy of the
Rights Agreement, as in effect on the date of mailing, without charge
promptly after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an Acquiring Person or any
Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement), whether currently held by or on behalf of such
Person or by any subsequent holder, may become null and void.
With respect to certificates representing shares of Common Stock (whether or
not such certificates include the foregoing legend), until the earlier of the
Exercisability Date and the Expiration Date, (i) the Rights associated with the
shares of Common Stock represented by such certificates shall be evidenced by
such certificates alone, (ii) registered holders of the shares of Common Stock
shall also be the registered holders of the associated Rights, and (iii) the
transfer of any of such certificates shall also constitute the transfer of the
Rights associated with the shares of Common Stock represented by such
certificates.
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4. Section 23(b) of the Agreement is hereby amended in its entirety to
read as follows:
(b) The Board may, at its option, at any time prior to the earlier
of (i) the Close of Business on the tenth Business Day after the Stock
Acquisition Date, or (ii) the Final Expiration Date, redeem all, but not less
than all, of the then outstanding Rights at a redemption price of $.001 per
Right, 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"). The Company may, at
its option, pay the Redemption Price in cash, shares of Common Stock (based on
the current per share market price of shares of Common Stock at the time of
redemption determined pursuant to Section 11(d) hereof) or any other form of
consideration deemed appropriate by the Board; provided that if the Company
elects to pay the Redemption Price in shares of Common Stock, the Company shall
not be required to issue fractional shares of Common Stock. In lieu of such
fractional shares of Common Stock, the Company shall pay to the registered
holders of the Right Certificates with regard to which such fractional shares
of Common Stock would otherwise be issuable an amount of cash equal to the same
fraction of the current per share market price of a whole share of Common
Stock.
5. Section 24(a) of the Agreement is hereby amended in its entirety to
read as follows:
(a) The Board may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or any part of the then outstanding
and exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board shall not be empowered to effect such exchange at any time
after any Adverse Person becomes the Beneficial Owner of 50% or more of the
Common Stock then outstanding.
6. Section 27 of the Agreement is hereby amended in its entirety to read
as follows:
Prior to the Exercisability Date and subject to the penultimate
sentence of this Section 27, the Company 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 certificates representing shares of Common
Stock. From and after the Exercisability Date and subject to the penultimate
sentence of this Section 27, the Company and the Rights Agent shall, if the
Company by action of a majority of the Board so directs, supplement or amend
this Agreement without the approval of any holders of Rights Certificates 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
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(iv) to change or supplement the provisions hereunder in
any manner which the Company may deem necessary or
desirable and which shall be consistent with, and
for the purpose of fulfilling, the objectives of the
Board in adopting this Agreement, including any
change in the number or class of shares of capital
stock of the Company for which the Rights are
potentially exercisable prior to a Triggering Event;
provided, however, that from and after such time as any Person becomes an
Acquiring Person, this Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights; and provided, further,
that this Agreement may not be supplemented or amended to lengthen, pursuant to
clause (iii) of this sentence (A) subject to Section 31 hereof, a time period
relating to when the Rights may be redeemed at such time as the Rights are not
then redeemable, or (B) any other time period unless such lengthening is for
the purpose of protecting, enhancing or clarifying the rights of, and/or the
benefits to, the holders of Rights. Without limiting the foregoing, the Company
may at any time prior to such time as any Person becomes an Acquiring Person
amend this Agreement to change the Exercise Price hereunder. Upon the delivery
of a certificate from an appropriate officer of the Company or, so long as any
Person is an Acquiring Person hereunder, from the majority of the Board of
Directors, 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. Notwithstanding anything contained in this
Agreement to the contrary, no supplement or amendment which changes the rights
and duties of the Rights Agent under this Agreement shall be effective without
the consent of the Rights Agent, and no supplement or amendment shall be made
which changes the Redemption Price, the Exercise Price, the Expiration Date or
the number of shares of Common Stock (or other securities) for which a Right is
exercisable without the approval of a majority of the Board of Directors. Prior
to the Exercisability Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common Stock.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to
Rights Agreement to be executed as of the date first written above.
PERFORMANCE FOOD GROUP COMPANY
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Corporate Treasurer & Secretary
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AMERICAN STOCK TRANSFER TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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