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EXHIBIT 10.1
THIRD AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
This Third Amendment (the "Amendment"), dated this 15th day of May,
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 in the best interests of the Company and its stockholders to effect certain
amendments to the Rights Agreement;
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.
(a) Subclause (i) of Section 7(a) of the Rights Agreement is
hereby amended to change the Final Expiration Date (as defined
therein) from May 16, 1997 to May 16, 2007 by deleting the
reference to "May 16, 1997" in such Subclause (i) and
replacing it with "May 16, 2007".
(b) Section 7(b) of the Rights Agreement is hereby amended to read
in its entirety as follows:
"The Purchase Price for each one one-hundredth of a Preferred
Share purchasable pursuant to the exercise of a Right shall
initially be $300, and shall be subject to adjustment from
time to time as provided in Section 11 or 13 hereof and shall
be payable in lawful money of the United States of America in
accordance with paragraph (c) below."
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.
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(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.
(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: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
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Its: Secretary Its: Assistant Vice President
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