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Exhibit 2.8
AMENDED AND RESTATED FOURTH AMENDMENT
TO SECURITIES PURCHASE AGREEMENT
This Amended and Restated Fourth Amendment to Securities Purchase
Agreement (the "Amendment") is entered into this 12th day of March, 1996 and is
effective as of October 1, 1995 by and among Xxxxxx'x Grand Ice Cream, Inc., a
Delaware corporation (the "Company"), and Trustees of General Electric Pension
Trust, a New York common law trust ("GE Pension"), GE Investment Private Place
ment Partners, I, a Delaware limited partnership ("GEIPPP") and General Electric
Capital Corporation, a New York corporation (collectively the "Purchasers").
Recitals
A. Company is a party to a Securities Purchase Agreement dated June 24,
1993, with Purchasers (the "Purchase Agreement"), as amended by amendments dated
May 6, 1994, July 28, 1995 and October 30, 1995, pursuant to which Purchasers
acquired various securities of Company.
B. The Company and Purchasers entered into a Fourth Amendment to
Securities Purchase Agreement dated February 1, 1996 and effective as of October
1, 1995 (the "Fourth Amendment").
C. Company and Purchasers now desire to amend and restate the Fourth
Amendment in its entirety and amend the Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, waiver
provisions, and covenants contained herein, the parties agree as follows:
1. Amendment and Restatement of Fourth Amendment.
The Fourth Amendment is amended and restated in its entirety
as set forth in this Amendment.
2. Amendments to Purchase Agreement.
2.1 Section 12.1 of the Purchase Agreement is hereby
amended by adding the following definition:
""Net Aggregate Stated Value" shall mean the
aggregate Stated Value of the outstanding shares of Preferred Stock net of
unamortized issuance costs associated with the Securities."
2.2 The definition of "Consolidated Net Worth" contained
in Section 12.1 of the Purchase Agreement is hereby amended to read in its
entirety as follows:
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"Consolidated Net Worth" shall mean the consolidated
stockholders' equity of the Company and its
Subsidiaries (not including the Net Aggregate Stated
Value) determined in accordance with generally
accepted accounting principles consistently applied
plus the Net Aggregate Stated Value."
2.3 Section 6.1(a) of the Purchase Agreement is hereby
amended to read in its entirety as follows:
"6.1. Financial Covenants. (a) The Company will not
permit its Consolidated Net Worth to be less than (i)
$185,000,000 during the Company's fourth fiscal
quarter of 1995 or (ii) $190,000,000 during each of
the Company's four fiscal quarters of 1996 or (iii)
the sum of $100,000,000 plus the Net Aggregate Stated
Value at any time after the end of the Company's 1996
fiscal year."
2.4 Section 6.1(c) of the Purchase Agreement is hereby
amended to read in its entirety as follows:
"(c) The Company will not permit its Fixed
Charge Ratio to be less than .75 to 1.00 on the last
day of fiscal year 1995 and 1.5 to 1.0 on the last
day of each fiscal year thereafter."
2.5 Section 6.1 of the Purchase Agreement is hereby
further amended by adding the following paragraphs (d), (e) and (f):
"(d) In the event the Company's Fixed Charge
Ratio on the last day of the second fiscal quarter of 1996 is less than 1.25 to
1.0, then within ten (10) business days after the Company's final calculation of
such Fixed Charge Ratio, the Company will pay to the holders of the outstanding
shares of Series B Preferred Stock, pro rata based on the number of shares held
by each holder, out of the assets of the Company legally available therefor, a
special dividend in the aggregate amount of Five Hundred Thousand Dollars
($500,000) cash.
(e) In the event the Company's Fixed Charge
Ratio on the last day of fiscal year 1996 is less than 1.5 to 1.0, then within
ten (10) business days after the Company's final calculation of such Fixed
Charge Ratio, the Company will pay to the holders of the outstanding shares of
Series B Preferred Stock, pro rata based on the number of shares held by each
holder, out of the assets of the Company legally available therefor, a special
dividend in the aggregate amount of Five Hundred Thousand Dollars ($500,000)
cash.
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(f) The Purchasers agree that any special
dividend payments made pursuant to paragraphs (d) and (e) of this Section 6.1
shall not be considered for purposes of calculating the Company's Fixed Charge
Ratio. The Company agrees that the provisions of Sections 6.17 and 6.18 of this
Agreement shall be applicable to any special dividend payments made pursuant to
paragraphs (d) and (e) of this Section 6.1."
3. Waiver of Rights under Certificate of Designation and
Interpretation.
3.1 Waiver of Rights. Notwithstanding their respective
rights under the Company's Certificate of Designation of Series B Convertible
Preferred Stock (the "Series B Certificate"), the Company and the Purchasers
agree to waive certain of their respective rights thereunder and to agree as
follows:
(a) The Purchasers agree to waive their right, as the holders of
the Company's Series B Convertible Preferred Stock (the "Series B Preferred
Stock") to receive dividends under Section 2(a) of the Series B Certificate (i)
after December 15, 1997, if the Company's Fixed Charge Ratio on the last day of
fiscal year 1996 is 1.5 to 1.0 or greater; or (ii) after June 15, 1999, if the
Company's Fixed Charge Ratio on the last day of fiscal year 1996 is less than
1.5 to 1.00.
(b) The Company agrees (i) after December 15, 1997, if the
Company's Fixed Charge Ratio on the last day of fiscal year 1996 is 1.5 to 1.0
or greater; or (ii) after June 15, 1999, if the Company's Fixed Charge Ratio on
the last day of fiscal year 1996 is less than 1.5 to 1.0, that no dividend or
distribution in cash, shares of stock or other property on the Common Stock, par
value $1.00 per share, of the Company (the "Common Stock") shall be declared or
paid or set apart for payment unless, at the same time, the same dividend or
distribution is declared or paid or set apart, as the case may be, on the Series
B Preferred Stock payable on the same date, at the rate per share of Series B
Preferred Stock based upon the number of shares of Common Stock into which each
share of Series B Preferred Stock is convertible (as adjusted pursuant to
Section 8 of the Series B Certificate) on the record date for such dividend or
distribution on the Common Stock.
(c) The Company agrees that it will not exercise its right to
redeem the Series B Preferred Stock pursuant to clause (i) of the first
paragraph of Section 5(a) of the Series B Certificate until after June 15, 1999.
(d) The Purchasers agree that the Company's right to redeem the
Series B Preferred Stock pursuant to clause (ii) of the first paragraph of
Section 5(a) of the Series B Certificate shall be extended to on or prior to
June 15, 1999, such that the Company
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shall have the right to redeem the Series B Preferred Stock on the same terms as
set forth in such clause of the Series B Certificate.
3.2 Interpretation. The parties hereto confirm and agree
that it was their intent at the time the Purchase Agreement was executed that
the definitions of "Agreement" in the Purchase Agreement and of "Purchase
Agreement" in the Series B Certificate would include any amendments to the
Purchase Agreement as made from time to time pursuant to the terms of the
Purchase Agreement.
4. Miscellaneous.
4.1 Except as expressly amended herein, all terms,
covenants and provisions of the Purchase Agreement are and shall remain in full
force and effect and all references therein to such Purchase Agreement shall
henceforth refer to the Purchase Agreement as amended by this Amendment. This
Amendment shall be deemed incorporated into, and a part of, the Purchase
Agreement.
4.2 This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. The
Purchasers agree that they will not sell, transfer, pledge, assign or otherwise
dispose of (collectively, "Transfer") any of their shares of Series B Preferred
Stock unless prior to such Transfer, the proposed transferee shall have agreed
in writing in form and substance reasonably satisfactory to the Company to be
bound by the terms of this Fourth Amendment. No third party beneficiaries are
intended in connection with this Amendment.
4.3 This Amendment shall be governed by and construed in
accordance with the law of the State of Delaware.
4.4 This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Amendment to be executed and delivered as of the date first above written.
XXXXXX'X GRAND ICE CREAM, INC. TRUSTEES OF GENERAL ELECTRIC
PENSION TRUST
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
-------------------------- -------------------------
Title: CFO Title: Trustee
----------------------- ----------------------
GENERAL ELECTRIC CAPITAL GE INVESTMENT PRIVATE
CORPORATION PLACEMENT PARTNERS, I, L.P.
By: GE Investment Management
By: /s/ Incorporated, its
-------------------------- General Partner
Title: Department Operations
Manager
By: /s/ Xxxx X. Xxxxx
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Title: Executive Vice
President
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