EXHIBIT 4.1.4
FOURTH AMENDMENT TO THE RIGHTS AGREEMENT
BETWEEN
XXXXXXXXX'X, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
This agreement, made this 22nd day of January, 2006 (this "Amendment"),
between Xxxxxxxxx'x, 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 Amendment;
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(n) of the Rights Agreement is hereby amended by adding the
following new Section 1(nn) immediately thereafter:
"(nn) "Merger Agreement" means the Agreement and Plan of Merger, dated
as of January 22, 2006, among the Company, SUPERVALU INC. ("Parent"),
Emerald Acquisition Sub, Inc. ("Acquisition Sub"), New Aloha
Corporation ("New Diamond") and Diamond Sub, Inc. ("Merger Sub")"
2. Section 1 of the Rights Agreement is hereby amended by adding the
following paragraph at the end of such Section:
"Notwithstanding anything in this Agreement to the contrary, (i) none
of the execution, delivery or performance of the Merger Agreement nor
the consummation of the transactions contemplated thereby will (x)
cause the Rights to become exercisable, (y) cause Parent, Acquisition
Sub, New Diamond, or any of their respective Affiliates or Associates
to become an Acquiring Person or (z) give rise to a Stock Acquisition
Date or a Distribution Date."
3. Section 7(a) of the Rights Agreement is hereby amended in its entirety
to read as follows:
"(a) Subject to Section 7(e) hereof, at any time after the
Distribution Date the registered holder of any Rights Certificate may
exercise the Rights evidenced
thereby (except as otherwise provided herein including, without
limitation, the restrictions on exercisability set forth in Section
9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part
upon surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of
the Rights Agent designated for such purpose, together with payment of
the aggregate Purchase Price with respect to the total number of one
one-thousandths of a share (or other securities, cash or other assets,
as the case may be) as to which such surrendered Rights are then
exercisable, at or prior to the earliest of (i) the close of business
on March 21, 2007 (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof, (iii)
the time at which the Rights are exchanged pursuant to Section 24
hereof, or (iv) immediately prior to the Initial Effective Time (as
defined in the Merger Agreement) (the earliest of (i), (ii), (iii) and
(iv) being herein referred to as the "Expiration Date").
4. Exhibits A, B, and C to the Rights Agreement shall be deemed to be
amended in a manner consistent with this Amendment.
5. 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 Amendment
and all prior amendments.
6. This Amendment shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
7. This agreement shall be effective as of, and immediately prior to, the
execution and delivery of the Merger Agreement.
8. Except as set forth herein, the Rights Agreement shall remain in full
force and effect and otherwise shall be unaffected hereby.
9. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the day and year first above written.
Attest: XXXXXXXXX'X, INC.
/s/ XXXXXXX X. XXXXXXXXX By: /s/ XXXX X. XXXX
------------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxx X. Xxxx
Title: Vice President and Title: Executive Vice President and
Corporate Secretary General Counsel
Attest: AMERICAN STOCK TRANSFER & TRUST COMPANY
/s/ XXXXXXX XXXX By: /s/ XXXXXX X. XXXX
------------------------------------- ------------------------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx X. Xxxx
Title: Account Manager Title: Vice President
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