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EXHIBIT 10.1
SECOND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
This Second Amendment (the "Amendment"), dated this 17th day of March,
1997, amends the Amended and Restated Rights Agreement (the "Rights Agreement")
by and between Xxxxxx'x Grand Ice Cream, Inc., a Delaware corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C. (successor to First
Interstate Bank of California, a state banking corporation organized and
existing under the laws of the State of California) (the "Rights Agent"). All
terms not otherwise defined herein shall have the meaning given such terms in
the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that it
is desirable to amend the provision relating to the amendment of the Rights
Agreement so as to provide the Company with enhanced flexibility in relation
thereto;
WHEREAS, pursuant to Section 27 of the Rights Agreement the Company
may, subject to certain limitations, amend the Rights Agreement without the
approval of any holders of Rights Certificates to make any provisions with
respect to the Rights which the Company deems necessary or desirable.
NOW, THEREFORE, upon all of the terms and conditions set forth
hereinafter, the Company and the Rights Agent agree as follows:
1. Amendment.
Section 27 of the Rights Agreement is hereby amended by
deleting the last sentence thereof in its entirety.
2. Miscellaneous.
(a) Choice of Law. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
(b) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(c) Severability. If any term or provision of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms and provisions of this
Amendment shall in no way be affected, impaired or invalidated.
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(d) Existing Terms. The existing terms and conditions of the
Rights Agreement shall remain in full force and effect except as such terms and
conditions are specifically amended or conflict with the terms of this
Amendment.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered by its duly authorized officer on the
day and year first above written.
The Company: Rights Agent:
XXXXXX'X GRAND ICE CREAM, INC. CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: ____________________________ By: _________________________________
Its: ___________________________ Its: _________________________________
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