JUNIOR CLASS B PREFERRED
AMENDMENT AGREEMENT
This Junior Class B 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. On October 29, 1991, the Company adopted and filed with the
Secretary of State of the State of Delaware that certain Certificate of
Designation relating to the Junior Class B PIK Preferred Stock, no par value
(the "Junior Class B Preferred Stock"), pursuant to which the Junior Class B
Preferred Stock was created having the rights, qualifications, limitations and
restrictions set forth therein (the "Certificate of Designation").
B. On November 1, 2001, the Company is obligated, in accordance with
the terms of the Certificate of Designation, to redeem in full all outstanding
shares of the Junior Class B Preferred Stock.
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.
D. The Company and the Holders desire to amend the Certificate of
Designation to extend the mandatory redemption date for the Junior Class B
Preferred Stock from November 1, 2001 until March 15, 2006.
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, the undersigned hereby agree as follows:
1. AMENDMENT TO THE CERTIFICATE OF DESIGNATION.
Each Holder consents to the amendment of Paragraph 1.5(b) of the
Certificate of Designation to read as follows:
"All shares of Junior Class B PIK Preferred Stock not theretofore
redeemed shall be redeemed by payment of cash on March 15, 2006 at
$25,000 per share plus all accrued and unpaid dividends thereon,
whether or not declared, to the date of redemption, subject to the
applicable provisions of law."
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.
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 Junior Class B
Preferred Stock with respect to the amendment of the Certificate of Designation
as set forth herein and as reflected in EXHIBIT A hereto.
4. COVENANT OF THE COMPANY.
Promptly following the date hereof, the Company shall file a copy of
the Amendment of the 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.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Junior Class B
Preferred Amendment Agreement to be executed as of the date first written above.
XXXXXX MAY HOLDINGS, INC.
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
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Title: President
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HOLDERS:
LEUCADIA INVESTORS, INC.
By: /s/ Xxxxxx X. Orlando
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Name: Xxxxxx X. Orlando
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Title: Vice President
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/ Xxxx X. Max
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Xxxx X. Max
/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
POLYTECHNIC PREPARATORY
COUNTRY DAY SCHOOL
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
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Title: Director of Finance
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