Exhibit 2
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AMENDMENT NO. 1 TO AMENDED
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AND RESTATED RIGHTS AGREEMENT
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AMENDENT NO. 1, dated as of October 18, 1998 (the "Amendment"), to the
Amended and Restated Rights Agreement, dated as of April 4, 1997 (the
"Rights Agreement"), by and between The Kroger Co., an Ohio corporation
(the "Company"), and The Bank of New York, as Rights Agent (the "Rights
Agent").
WHEREAS, the parties hereto desire to amend the Rights Agreement
as set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1(a)
of the Rights Agreement is hereby amended by adding at the end of such
definition the following:
"; provided, however, that ▇▇▇▇ ▇▇▇▇▇, Inc., a Delaware
corporation ("▇▇▇▇ ▇▇▇▇▇"), shall not be deemed to be an
Acquiring Person to the extent that ▇▇▇▇ ▇▇▇▇▇ becomes the
Beneficial Owner of shares of Common Stock solely by reason of
(i) the execution of the Stock Option Agreement, dated as of
October 18, 1998, by and between the Company and ▇▇▇▇ ▇▇▇▇▇ (the
"Stock Option Agreement"), or (ii) the consummation of the
transactions contemplated by the Stock Option Agreement in
accordance with the terms thereof."
2. The definition of "Stock Acquisition Date" set forth in
Section 1(j) of the Rights Agreement is hereby amended by adding at the end
of such definition the following:
"; provided, however, that the Stock Acquisition Date shall not
be deemed to have occurred as a result of the public announcement
of the execution of the Stock Option Agreement or as a result of
the consummation of any transaction contemplated thereby."
3. The Rights Agreement is hereby amended by adding thereto the
following new Section 3(d):
"(d) Notwithstanding any provision of this Agreement to the
contrary, ▇▇▇▇ ▇▇▇▇▇ shall not be, and shall not be deemed to be,
an Acquiring Person, and no Distribution Date, Stock Acquisition
Date or any other event which would result in the Rights becoming
exercisable shall occur or be deemed to occur, in either case
solely by reason of the execution of the Stock Option Agreement
or the announcement or consummation of the transactions
contemplated thereby."
4. Each party hereto represents and warrants that (i) the
execution, delivery and performance of this Amendment by such party have
been duly authorized by all necessary corporate action and (ii) this
Amendment constitutes a valid and binding agreement of such party.
5. This Amendment 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.
6. This Amendment shall be deemed to be a contract made under the
laws of the State of Ohio 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and attested, all as of the date and year first above
written.
THE KROGER CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Secretary
and General Counsel
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
