SENIOR PREFERRED AMENDMENT AGREEMENT
This Senior Preferred Amendment Agreement (this "Agreement") is entered
into as of June 28, 2001 by and among Xxxxxx May Holdings, Inc., a Delaware
corporation (the "Company"), and the persons named on the signature pages hereof
as Holders (the "Holders").
RECITALS:
A. The Company and the Holders entered into that certain Stock Purchase
Agreement, dated as of August 22, 1991 (as amended, the "Purchase Agreement").
B. As a condition to the closing of the transactions contemplated by the
Purchase Agreement, the Company adopted and filed with the Secretary of State of
the State of Delaware that certain Certificate of Designation relating to the 5%
Senior Preferred Stock, no par value (the "Senior Preferred Stock"), pursuant to
which the Senior Preferred Stock was created having the rights, qualifications,
limitations and restrictions set forth therein (the "Certificate of
Designation"). Terms used herein and not otherwise defined shall have the same
meanings specified in the Certificate of Designation.
C. On August 31, 2001, the Company is obligated, in accordance with the
terms of the Certificate of Designation, to redeem in full all outstanding
shares of the Senior Preferred Stock.
D. The Company and the Holders agree that, as of the date hereof, a
total of 1,243.8558 shares of Senior Preferred Stock are issued and outstanding
and held of record by the Holders as set forth on the signature pages hereof
(1,000 shares of which were issued in 1991 in connection with the Company's
acquisition of Xxxxxxxxx Xxxxx Corporation, an Illinois corporation
("Xxxxxxxxx"), and the remainder of which have been issued as paid-in-kind
dividends since such original issuance).
E. The Company and the Holders agree that, in the event this Agreement
was not entered into, the aggregate amount required to be paid by the Company to
the Holders on August 31, 2001 in full satisfaction of such redemption
obligation would be approximately $12,700,000.
F. The Company and the Holders desire to amend and restate the
Certificate of Designation to, among other things, (i) extend the mandatory
redemption date for the Senior Preferred Stock beyond August 31, 2001 and (ii)
provide that such redemption obligation may be satisfied in full by the payment
to the Holders of an aggregate amount equal to $13,500,000 on the schedule set
forth herein (or $13,000,000 if paid in full on or prior to December 31, 2004).
X. Xxxxxxxxx Candy Corporation, an Illinois corporation and wholly-owned
subsidiary of the Company, desires to enter into a credit facility (the "Credit
Facility") to replace its current credit facility with Bank One, NA. It is a
condition to the closing of the Credit Facility that the Company and each of the
Holders enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, the undersigned hereby agree as follows:
1. AMENDMENTS TO THE CERTIFICATE OF DESIGNATION.
(a) DIVIDENDS. Paragraph 1.2 of the Certificate of Designation shall be
amended to establish August 31, 2000 as the final date upon which dividends
shall accrue on the Senior Preferred Stock.
(b) REDEMPTION. Paragraph 1.5 of the Certificate of Designation shall be
amended to (i) delete all references to the redemption of Senior Preferred Stock
on the Dividend Payment Date occurring in 2001, and (ii) insert therein a
redemption schedule such that the following payments (each a "Redemption
Payment") shall be made to the holders of shares of Senior Preferred Stock on
the following dates in redemption of shares of Senior Preferred Stock not
theretofore redeemed:
REDEMPTION
REDEMPTION DATE PAYMENT
January 15, 2002............................. $3,000,000
January 15, 2003............................. 3,000,000
January 15, 2004............................. 3,000,000
January 15, 2005............................. 2,000,000
January 15, 2006............................. 2,500,000
Any Redemption Payment not paid on or prior to the respective Redemption
Date shall bear interest at 8.0% per annum until paid. Each Redemption Payment
(including any prepayment made in accordance with the following paragraph) shall
be applied to redeem shares of Senior Preferred Stock, at the Redemption Price
(defined below) per share, on a pro rata basis, among all holders of shares of
Senior Preferred Stock.
The Company may at any time, at the Company's sole option, redeem shares
of Senior Preferred Stock not theretofore redeemed in advance of the schedule
described above by paying the Redemption Price therefor. Any payment made in
advance of a Redemption Date shall be applied to the then remaining Redemption
Payments in chronological order.
The "Redemption Price" shall equal (i) either (A) if with respect to a
redemption in full on or prior to December 31, 2004 of all shares of Senior
Preferred Stock then outstanding, $13,000,000 less the aggregate amount of all
redemption payments made prior to such date or (B) if with respect to any other
redemption, $13,500,000 less the aggregate amount of all redemption payments
made prior to such date, in either case, divided by (ii) the total number of
shares of Senior Preferred Stock outstanding immediately prior to the date of
such redemption.
(c) ACCELERATION OF REDEMPTION PAYMENTS. Paragraph 1.5 of the
Certificate of Designation shall be further amended to provide that all unpaid
Redemption Payments shall be accelerated in the event of (i) the Company's
failure to discharge its obligation to make any Redemption Payment within 30
days of the designated Redemption Date, (ii) any sale, transfer, issuance or
redemption or series of sales, transfers, issuances or redemptions (or any
combination thereof) of shares of the Company's common stock, par value $.01 per
share ("Common Stock"), by the holders thereof or the Company which results in
any person or group of affiliated persons (other than (i) the owners of the
Company's capital stock as of the date
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hereof and (ii) stockholders, partners, members, managers, affiliates, trustees
or officers of such owners) owning more than 50% of the Common Stock of the
Company or (iii) the Company's violation of its obligations described in Section
1(d) below.
(d) STANDSTILL ON PAYMENTS TO HOLDERS OF JUNIOR SECURITIES. Paragraph
1.5 of the Certificate of Designation shall be further amended to provide that
the Company shall not, directly or indirectly, until the Company shall have
satisfied its obligations with respect to the redemption of the Senior Preferred
Stock, make any cash payments to any holder (or any affiliate thereof) of, or
declare or pay any cash dividend or make any distributions on, or purchase,
redeem or retire, or satisfy any mandatory or optional redemption, sinking fund
or other similar obligation in respect of, any shares of the Common Stock, the
Company's Junior Class A PIK Preferred Stock or the Company's Junior Class B PIK
Preferred Stock or any other series of stock issued by the Company ranking
junior to the Senior Preferred Stock (collectively, the "Junior Securities") or
warrants, rights or options exercisable for any such Junior Securities (other
than dividends or distributions payable solely in the same class or series of
such Junior Securities, as the case may be, to holders thereof); provided,
however, that the Company may take any such action with respect to Common Stock
(or stock appreciation rights or rights or options exercisable for Common Stock)
issued or granted to officers or other employees of the Company or any of its
subsidiaries pursuant to any employee benefit plan of the Company as in effect
on the date hereof, but only if such action is in accordance with and pursuant
to the provisions of such plan; and, provided further, that the Company may pay
(i) salaries, bonuses, expense reimbursements and other similar payments to its
employees in the ordinary course of business, (ii) directors' fees and expense
reimbursements, (iii) indemnification obligations owing by the Company to its
directors and officers (whether under the Company's organizational documents,
indemnification agreements or applicable law) and (iv) amounts payable under the
Company's Management Consulting Agreement with TJC Management Corp., as in
effect on the date hereof.
(e) VOTING RIGHTS. Paragraph 1.6 of the Certificate of Designation shall
be amended to delete all references to the failure of the Company to pay on any
Dividend Payments Date the full amount of dividends then accrued and unpaid as
set forth in each of the clauses designated as (i).
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Holders to enter into this Agreement, the Company
represents and warrants that the Company is duly authorized to execute and
deliver this Agreement and is duly authorized to perform its obligations under
the Certificate of Designation, as amended hereby.
3. CONSENT.
By signing below, each Holder hereby acknowledges and agrees that such
Holder consents to, and waives any requirement set forth in the Certificate of
Designation for a separate written consent, or a vote at a meeting of holders,
of Senior Preferred Stock with respect to, the amendment and restatement of the
Certificate of Designation as set forth herein and as reflected in EXHIBIT A
hereto.
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4. COVENANT OF THE COMPANY.
Immediately after the date hereof, the Company shall file a copy of the
Amended and Restated Certificate of Designation in the form set forth in EXHIBIT
A hereto with the Secretary of State of the State of
Delaware.
5. SUCCESSORS.
This Agreement shall be binding upon the Company and the Holders and
their respective heirs, successors and assigns, and shall inure to the benefit
of the heirs, successors and assigns of the Company and the Holders.
6. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which together
shall constitute one and the same instrument.
7. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
8. ATTORNEYS' FEES AND EXPENSES.
The Company shall pay or reimburse the Holders for all reasonable
attorneys' fees and costs incurred by the Holders in connection with (a) the
negotiation of this Agreement and the transactions contemplated hereby and (b)
any action brought to enforce the rights of the Holders pursuant to this
Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Senior Preferred
Amendment Agreement to be executed as of the date first written above.
XXXXXX MAY HOLDINGS, INC.
By: /s/ Xxx X. Xxxxxxxx
-------------------
Name: Xxx X. Xxxxxxxx
Title: President, Chief Operating Officer
HOLDERS:
XXXX X. XXXXXX TRUST UNDER PARAGRAPH 1 OF
ARTICLE III OF THE XXXX X. XXXXXX TRUST DATED
DECEMBER 2, 1985
78.1639 Shares of By: /s/ Xxxx X. Xxxxxx
Senior Preferred Stock -------------------------------
Xxxx X. Xxxxxx, Trustee
XXXXXX XXXXXX XXXXXX TRUST UNDER PARAGRAPH 1
OF ARTICLE III OF THE XXXX X. XXXXXX TRUST
DATED DECEMBER 2, 1985
78.1639 Shares of Senior By: /s/ Xxxxxx Xxxxxx Xxxxxx
Preferred Stock -------------------------------
Xxxxxx Xxxxxx Xxxxxx, Trustee
XXXXX XXXXXX XXXXXX TRUST
78.1639 Shares of Senior By: /s/ Xxxxx Xxxxxx Xxxxxx
Preferred Stock -------------------------------
Xxxxx Xxxxxx Xxxxxx, Trustee
XXXXXXXXX XXXXXX TRUST UNDER PARAGRAPH 1 OF
ARTICLE IV OF THE XXXX X. XXXXXX TRUST DATED
DECEMBER 2, 1985
By: /s/ Xxxxx Xxxxxx Xxxxxx
-------------------------------
78.1639 Shares of Senior By: /s/ Xxxxxx Xxxxxx Xxxxxx
Preferred Stock -------------------------------
Xxxxx Xxxxxx Xxxxxx and Xxxxxx Xxxxxx
Xxxxxx, Co-Trustees
XXXX X. XXXXXX TRUST UNDER PARAGRAPH 2 OF
ARTICLE III OF THE XXXX X. XXXXXX TRUST DATED
DECEMBER 2, 1985
232.8001 Shares of Senior By: /s/ Xxxx X. Xxxxxx
Preferred Stock -------------------------------
Xxxx X. Xxxxxx, Trustee
XXXXXX XXXXXX XXXXXX TRUST UNDER PARAGRAPH 2
OF ARTICLE III OF THE XXXX X. XXXXXX TRUST
DATED DECEMBER 2, 1985
232.8001 Shares of Senior By: /s/ Xxxxxx Xxxxxx Xxxxxx
Preferred Stock -------------------------------
Xxxxxx Xxxxxx Xxxxxx, Trustee
XXXXX XXXXXX XXXXXX TRUST UNDER PARAGRAPH 2 OF
ARTICLE III OF THE XXXX X. XXXXXX TRUST DATED
DECEMBER 2, 1985
232.8001 Shares of Senior By: /s/ Xxxxx Xxxxxx Xxxxxx
Preferred Stock -------------------------------
Xxxxx Xxxxxx Xxxxxx, Trustee
XXXXXXXXX XXXXXX TRUST UNDER PARAGRAPH 2 OF
ARTICLE III OF THE XXXX X. XXXXXX TRUST DATED
DECEMBER 2, 1985
By: /s/ Xxxxx Xxxxxx Xxxxxx
-------------------------------
232.8001 Shares of Senior By: /s/ Xxxxxx Xxxxxx Xxxxxx
Preferred Stock -------------------------------
Xxxxx Xxxxxx Xxxxxx and Xxxxxx Xxxxxx
Xxxxxx, Co-Trustees
