AMENDMENT NO. 1 TO THE STOCKHOLDER AGREEMENT
DATED AS OF JULY 30, 1996, BETWEEN 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 Stockholder Agreement (the "Stockholder Agreement"), dated as
of July 30, 1996, between Trefoil Capital Investors II, L.P., a
Delaware limited partnership ("Trefoil II"), and GE Investment
Private Placement Partners II, a Limited Partnership, a Delaware
limited partnership ("GEIPPPII"). Capitalized terms used herein
without definitions shall have the meanings given them in the
Stockholder Agreement.
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of
July 30, 1996, as amended on March 10, 1997, among The Grand
Union Company (the "Company") and Trefoil II and GEIPPPII (the
"Purchase Agreement"), the Company agreed to sell to Trefoil II
and GEIPPPII, and Trefoil II and GEIPPPII agreed to purchase from
the Company, an aggregate of 2,000,000 shares of the Company's
Class A Convertible Preferred Stock, par value $1.00 per share,
issuable in denominations of $50 stated value per share (the
"Preferred Stock");
WHEREAS, the Company and Trefoil II and GEIPPPII propose to,
on the terms and subject to the conditions set forth in an
Acceleration and Exchange Agreement, dated the date hereof, among
the Company and Trefoil II and GEIPPPII (the "Acceleration and
Exchange Agreement"), accelerate the Fourth Closing and the Fifth
Closing (as such terms are defined in the Purchase Agreement);
WHEREAS, the Company and Trefoil II and GEIPPPII propose to,
on the terms and subject to the conditions set forth in the
Acceleration and Exchange Agreement, exchange an aggregate of
eight hundred thousand (800,000) shares of Preferred Stock for
eight hundred thousand (800,000) shares of the Company's Class B
Convertible Preferred Stock, par value $1.00 per share, issuable
in denominations of $50 stated value per share (the "Class B
Preferred Stock"); and
WHEREAS, Trefoil II and GEIPPPII desire to amend the
Stockholder Agreement for the purpose of facilitating the
transactions contemplated by the Acceleration and Exchange
Agreement.
NOW, THEREFORE, in consideration of the foregoing, and the
mutual agreements and covenants contained herein, the parties
hereto agree as follows:
Section 1. Securities. The Stockholder Agreement is
hereby amended to replace the former definition of the term
"Securities" with a new definition, to read in full as follows:
"Securities" means the Preferred Stock, the Class B
Preferred Stock, and any other shares of Preferred Stock, Class B
Preferred Stock and common stock, par value $1.00 per share, of
the Company paid as dividends on such shares of Preferred Stock
or Class B Preferred Stock.
Section 2. Voting Stock. Section 1 of the Stockholder
Agreement is hereby amended to replace the former definition of
the term "Voting Stock" with a new definition, to read in full as
follows:
"Voting Stock" means the Common Stock, the Preferred Stock,
the Class B Preferred Stock and any other capital stock of the
Company that is entitled to vote with the Common Stock on all
matters submitted to the stockholders of the Company for voting.
Section 3. Exercise of Demand Registration Rights.
Section 6(a) of the Stockholder Agreement is amended to read in
full as follows:
(a) Subject to Section 10 of this Agreement, each party may
independently elect to exercise two Demand Registration Rights;
provided, however, that if each of the Preferred Stock and the
Class B Preferred Stock is not, at such time, listed for trading
on a national securities exchange, or included for quotation in
the Nasdaq National Market, then neither party may elect to
exercise any such Demand Registration Right in order to register
all or any portion of its shares of Preferred Stock or Class B
Preferred Stock for public sale without the agreement of the
other party.
Section 4. After Acquired Securities. Section 9 of the
Stockholder Agreement is amended to read in full as follows:
The provisions of this Agreement shall apply with equal
force to any additional shares of Common Stock, Preferred Stock
or Class B Preferred Stock acquired by either party during the
term of this Agreement.
Section 5. 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
GEIPPPII: 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
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.
IN WITNESS WHEREOF, the parties have duly executed this
Amendment No. 1 to the Stockholder 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: Xxxxxxx X. XxXxxxxxx
------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
GE INVESTMENT PRIVATE PLACEMENT
PARTNERS II, A LIMITED PARTNERSHIP
By: GE Investment Management
Incorporated
By: Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Executive Vice President
