AMENDMENT NO. 1
AMENDED AND RESTATED INVESTMENT AGREEMENT
AMENDMENT NO. 1, dated as of June 25, 2020 (this Amendment), to the Amended and Restated Investment Agreement, dated as of June 9, 2020, by and among Albertsons Companies, Inc., a Delaware corporation (the Company) and each of the Investors named therein (as amended, supplemented, amended and restated or otherwise modified from time to time, the Investment Agreement).
WHEREAS, pursuant to Section 5.19 of the Investment Agreement, the IPO Representative (as defined therein) has the right, subject to the terms and conditions set forth therein, to demand that the Company complete an initial public offering if the Company has not completed a Qualified IPO (as defined therein) (the IPO Demand);
WHEREAS, each of the Investors party hereto (the Consenting Investors) agrees not to exercise the IPO Demand if the Company has completed an initial public offering satisfying the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Investment Agreement.
SECTION 2. IPO Demand. Each of the Consenting Investors agrees, and any Person becoming a party to the Investment Agreement as a result of a transfer of any Preferred Shares directly or indirectly from a Consenting Investor shall be required to agree as a condition to becoming a party to the Investment Agreement, that it shall not exercise the IPO Demand if the Company has completed an IPO that generates gross cash proceeds to the Company and/or selling stockholders of at least $800,000,000 in the aggregate.
SECTION 3. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED FOR ALL PURPOSES BY THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE WHOLLY PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY HERETO HEREBY AGREES AS SET FORTH FURTHER IN SECTION 8.05(c) AND SECTION 8.05(d) OF THE INVESTMENT AGREEMENT AS IF SUCH SECTION WAS SET FORTH IN FULL HEREIN.
SECTION 4. Counterparts. This Amendment may be executed in two or more identical counterparts (including by electronic transmission), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered (by electronic transmission or otherwise) to the other parties.
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