January 28, 2002
Xxxxxx'x Grand Ice Cream, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
We are writing to confirm certain agreements among Xxxxxx'x Grand
Ice Cream, Inc. (the "Company"), General Electric Pension Trust ("GEPT"),
GE Investment Private Placement Partners I, Limited Partnership ("GEIPP"),
and General Electric Capital Corporation ("GECC" and, together with GEPT
and GEIPP, the "GE Entities"), relating to the Common Stock, $1.00 par
value (the "Common Stock"), of the Company.
Concurrently with the execution and delivery of this Agreement by
the Company, Xxxx X. Xxxxxxx is resigning as a member of the Board of
Directors of the Company. A copy of Xx. Xxxxxxx'x letter of resignation is
attached hereto. The Company acknowledges that his resignation does not
affect Xx. Xxxxxxx'x rights to indemnification and exculpation under the
Company's certificate of incorporation and by-laws or his rights under any
directors' and officers' insurance policies of the Company with respect to
any period prior to the effectiveness of his resignation.
The following confirms certain understandings between the parties
with respect to the potential exercise by the GE Entities of its rights
under the Registration Rights Agreement dated as of June 30, 1993, as
amended (the "Registration Rights Agreement"). Within 30 days from the
receipt of a written request therefor, the Company shall file a
Registration Statement on Form S-3 (the "Registration Statement") in order
to register for sale all shares of Common Stock owned by the GE Entities,
in accordance with the plan of distribution of the GE Entities, which may
include, without limitation, the sale of shares in an underwritten offering
and the sale of shares in one or more block trades. If the GE Entities
determine to effect an underwritten offering of Common Stock, the Company
will cooperate with the GE Entities in connection therewith, including,
without limitation, conducting up to three roadshow meetings with investors
upon the reasonable request of the GE Entities. The Company shall cause the
Registration Statement to become effective at the earliest practicable date
and to remain effective until the earlier of (i) the date all shares of
Common Stock registered on behalf of the GE Entities have been sold and
(ii) 90 days from the effective date of the Registration Statement. The
Company shall bear all Registration Expenses (as defined in the
Registration Rights Agreement) in connection with the Registration
Statement. Except as otherwise provided herein, the registration of the
shares of Common Stock owned by the GE Entities shall be effected in
accordance with the provisions of the Registration Rights Agreement.
The Securities Purchase Agreement among the Company and the GE
Entities dated as of June 24, 1993 and all related agreements between the
Company, on the one hand, and any of the GE Entities, on the other hand,
are hereby terminated and none of the provisions of any such agreement
shall survive such termination, except for this letter and except that the
provisions of the Registration Rights Agreement shall survive for the
purposes of embodying the agreement of the parties hereto with respect to
the manner in which the registration contemplated by the preceding
paragraph shall be effected.
Simultaneously herewith, outside counsel to the GE Entities is
delivering to the Company its opinion with respect to the eligibility for
transfer without registration by the GE Entities of the shares of Common
Stock held by them. The Company agrees to remove all legends from the
certificates evidencing shares of Common Stock held by the GE Entities and
to redeliver such certificates, or to deliver unlegended replacements
therefor, to the GE Entities within 5 days after delivery of such
certificates to the Company by the GE Entities.
The GE Entities hereby confirm that they shall promptly amend the
Statement on Schedule 13D filed with the Securities and Exchange Commission
with respect to their ownership of the Common Stock to reflect this letter
agreement, and that such amendment will not otherwise amend in any respect
the disclosures heretofore contained in such Statement under Items 4 or 6.
The Company acknowledges and agrees that the Company has not
furnished to Xx. Xxxxxxx, any of the GE Entities, General Electric Company
or any direct or indirect subsidiary of any of the foregoing or any of
their respective officers, directors or employees any current non-public
information which is material to the Company.
This letter shall be governed by the laws of the State of
Delaware.
Very truly yours,
GENERAL ELECTRIC PENSION TRUST
By: GE Asset Management Incorporated,
its Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
GE INVESTMENT PRIVATE PLACEMENT
PARTNERS I, LIMITED PARTNERSHIP
By: GE Asset Management Incorporated,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxx
Department Operations Manager
Acknowledged and Agreed:
XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx, Chief Financial Officer
