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EXHIBIT 4.5
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT, dated as of July 22, 1999 (this "Amendment"), among
Safeway Inc. (successor to Safeway Stores Holdings Corporation), a Delaware
corporation (the "Company"), KKR Partners II, L.P., a Delaware limited
partnership ("KKR Partners"), SSI Associates, L.P., a Delaware limited
partnership ("SSI Associates"), Dart/SSI Associates, L.P., a Delaware limited
partnership ("Dart/SSI"), SSI Equity Associates, L.P., a Delaware limited
partnership ("SSI Equity"), KKR Associates, a New York limited partnership ("KKR
Associates"), SSI Partners, L.P., a Delaware limited partnership ("SSI
Partners"), and RFM Acquisition LLC, a Delaware limited liability company
("RFM").
W I T N E S S E T H:
WHEREAS, the Company, KKR Partners, SSI Associates, Dart/SSI, SSI
Equity, KKR Associates and SSI Partners are party to a Registration Rights
Agreement, dated as of November 25, 1986 (as amended, supplemented and modified
to date, the "Registration Rights Agreement");
WHEREAS, pursuant to the Registration Rights Agreement, the Company
has granted certain registration rights to the stockholders party thereto;
WHEREAS, contemporaneously with the execution and delivery of this
Amendment, the Company, SI Merger Sub, Inc., a Texas corporation ("Merger Sub"),
and Xxxxxxx'x Food Markets, Inc., a Texas corporation, are entering into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement");
WHEREAS, pursuant to the Merger Agreement, RFM will receive shares
of common stock, par value $.01 per share, of the Company (such shares, the "New
Shares");
WHEREAS, contemporaneously with the execution and delivery of this
Amendment and as a condition to entering into the Merger Agreement, RFM has
agreed to enter into a Voting Agreement (the "Voting Agreement") with the
Company and Merger Sub, dated as of the date hereof; and
WHEREAS, in consideration for RFM entering into the Voting
Agreement, the Company has agreed to enter into this Amendment to grant to RFM
registration rights with respect to the New Shares.
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NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises, the parties hereto hereby agree as follows:
SECTION I. AMENDMENTS
1.1 Defined Terms. Unless otherwise defined herein, capitalized
terms which are defined in the Registration Rights Agreement are used herein as
defined therein.
1.2 Amendment to Section 2 (Definitions).
(a) Section 2 of the Registration Rights Agreement is hereby amended
by inserting the following new definition in the appropriate alphabetical
order:
Randall's Merger Agreement - that certain Agreement and Plan of
Merger, dated as of July 22, 1999, among the Company, SI Merger Sub, Inc.
and Xxxxxxx'x Food Markets, Inc.
(b) Section 2 of the Registration Rights Agreement is hereby amended
by deleting therefrom the definition of the following defined term in its
entirety and inserting in lieu thereof the following new definition in the
appropriate alphabetical order:
Registrable Securities - Any Common Stock issued or issuable (a)
pursuant to, or acquired upon exercise of Warrants issued or issuable
pursuant to, a Purchase Agreement, any Common Stock which may be issued or
distributed in respect thereof by way of stock dividend or stock split or
other distribution, recapitalization or reclassification, and any Warrants
issued or issuable pursuant to a Purchase Agreement; provided such
Warrants are sold to the underwriters pursuant to an agreement which
requires such underwriters to exercise the Warrants and to include the
Common Stock acquired thereby in the registered public offering or (b) to
RFM Acquisition LLC in connection with the merger pursuant to the
Randall's Merger Agreement. As to any particular Registrable Securities,
once issued such Securities shall cease to be Registrable Securities 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, (ii) they shall have been distributed to the public pursuant to
Rule 144 (or any successor provision) under the Securities Act, (iii) they
shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by
the Company and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any
state securities or blue sky law then in force, or (iv) they shall have
ceased to be outstanding.
1.3 Amendment to Section 4. Subsection 4(c) of the Registration
Rights Agreement is hereby amended by deleting from the second line thereof "six
(6)" and inserting in lieu thereof: "eight (8)".
SECTION II. OTHER AGREEMENTS
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2.1 Agreement to be Bound. RFM hereby agrees to be bound by the
provisions of the Registration Rights Agreement applicable to a Holder.
2.2 Acknowledgment of the Company. The Company hereby acknowledges
and agrees that, pursuant to this Amendment and the Registration Rights
Agreement as amended hereby, RFM shall be a Holder (as defined in the
Registration Rights Agreement) and entitled to all rights of a Holder under the
Registration Rights Agreement.
SECTION III. MISCELLANEOUS
3.1 Conditions to Effectiveness of Amendment. This Amendment shall
become effective upon the Effective Time (as defined in the Merger Agreement).
3.2 Successors and Assigns; Participations and Assignments. This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
3.3 Counterparts. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
3.4 Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
3.5 Integration. This Amendment represents the agreement of the
parties hereto with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the parties
hereto relative to the subject matter hereof and thereof not expressly set forth
or referred to herein.
3.6 Continuing Effect; No Other Amendments. Except as expressly
amended hereby, all of the terms and provisions of the Registration Rights
Agreement are and shall remain in full force and effect. The amendments provided
for herein are limited to the specific subsections of the Registration Rights
Agreement specified herein and shall not constitute a consent, amendment or
waiver of, or an indication of the willingness of the parties thereto to consent
to, amend or waive, any other provisions of the Registration Rights Agreement or
the same subsections for any other date or time period (whether or not such
other provisions or compliance with such subsections for another date or time
period are affected by the circumstances addressed in this Amendment).
3.7 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF
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THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
SAFEWAY INC.
(successor to Safeway Stores Holdings
Corporation)
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Secretary
KKR PARTNERS II, L.P.
By: KKR Associates,
the General Partner
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: General Partner
SSI ASSOCIATES, L.P.
By: KKR Associates,
the General Partner
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: General Partner
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DART/SSI ASSOCIATES, L.P.
By: SSI Associates, L.P. and
KKR Partners II, L.P.,
the General Partners
By: KKR Associates,
the General Partner
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: General Partner
SSI EQUITY ASSOCIATES, L.P.
By: SSI Partners, L.P.,
the General Partner
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Authorized Signatory
SSI PARTNERS, L.P.
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Authorized Signatory
RFM ACQUISITION LLC
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: President
