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
-----------------------------
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 Senior Preferred Stock By: /s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx, Trustee
XXXXXX XXXXXX XXXXXX TRUST
UNDER PARAGRAPH 1 OF ARTICLE III
OF THE XXXX X. XXXXXX TRUST
DATED DECEMBER 2, 1985
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx Xxxxxx Xxxxxx, Trustee
XXXXX XXXXXX XXXXXX TRUST
78.1639 Shares of Senior Preferred Stock By: /s/ Xxxxx Xxxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx Xxxxxx, Trustee
XXXXXXXXX XXXXXX TRUST UNDER
PARAGRAPH 1 OF ARTICLE IV OF THE
XXXX X. XXXXXX TRUST DATED
DECEMBER 2, 1985
78.1639 Shares of Senior Preferred Stock By: /s/ Xxxxx Xxxxxx Xxxxxx
-----------------------------
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxx Xxxxxx Xxxxxx and Xxxxxx
Xxxxxx Xxxxxx, Co-Trustees
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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 Preferred Stock By: /s/ Xxxx X. Xxxxxx
-----------------------------
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 Preferred Stock By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
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 Preferred Stock By: /s/ Xxxxx Xxxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx Xxxxxx, Trustee
XXXXXXXXX XXXXXX TRUST UNDER
PARAGRAPH 2 OF ARTICLE III OF THE
XXXX X. XXXXXX TRUST DATED
DECEMBER 2, 1985
232.8001 Shares of Senior Preferred Stock By: /s/ Xxxxx Xxxxxx Xxxxxx
-----------------------------
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxx Xxxxxx Xxxxxx and Xxxxxx
Xxxxxx Xxxxxx, Co-Trustees
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