EXHIBIT 3
FIRST AMENDMENT TO AGREEMENT BETWEEN
McM ACQUISITION CORPORATION AND THE WILMINGTON TRUST COMPANY
THIS FIRST AMENDMENT TO AGREEMENT is entered into this 24th
day of January, 1997, by McM Acquisition Corporation, a North
Carolina corporation with its principal offices and place of
business in Raleigh, North Carolina ("MAC") and the Wilmington
Trust Company (solely in its capacity as Trustee of the ▇▇▇▇▇▇▇▇
Trust), a Delaware corporation with its principal offices and
place of business in Wilmington, Delaware (the "Trustee").
R E C I T A L S:
WHEREAS, the parties entered into an Agreement dated
November 22, 1996 (the "Agreement") concerning the stock of McM
Corporation ("McM"); and
WHEREAS, representatives of MAC have met with McM and,
pursuant to Section 1 of the Agreement and together with the
Trustee, presented a draft Agreement of Merger between McM and
MAC to the Board of Directors of McM; and
WHEREAS, the McM Board has declined to agree to enter into
the proposed Agreement of Merger, citing certain closing
conditions contained therein; and
WHEREAS, the Trust wants MAC to continue to do its due
diligence investigation and analysis of possible financing in
connection with the transaction contemplated by the Agreement;
and
WHEREAS, MAC is unwilling to undertake its additional due
diligence investigation and financing investigations without
further assurances from the Trustee concerning the shares of McM
stock held by the Trustee.
NOW, THEREFORE, in consideration of the premises, the
Agreement, the mutual covenants contained herein, and other
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Conditions Precedent. Section 1(c)(xi) is hereby
amended so that the reference to "June 30, 1997" is changed to
"March 1, 1998".
2. Plan Adoption and Approval. Section 2 of the
Agreement is hereby amended so as to add the following sentence at
the end:
"The Trustee further agrees that in the event of a
tender offer for the common stock of McM made by MAC
for cash consideration greater than or equal to $6.20
per share, the Trustee will tender its shares to MAC."
3. Third Party Negotiations. The first sentence of
Section 3 of the Agreement is hereby amended and restated as
follows:
"The Trustee agrees not to solicit other offers for its
McM stock, not to involve itself in any discussions
regarding the sale or transfer of its McM stock with
any party other than MAC, not to vote its shares in
favor of any merger, consolidation or share exchange
involving McM other than the Merger, and not to sell
any of its shares of McM stock to any third party prior
to expiration of the Option Period (as defined below)."
Section 3 of the Agreement is hereby amended so that the
reference to "June 30, 1997" is changed to "March 1, 1998".
4. The Trustee's Representations and Warranties. Section
5(b) of the Agreement is amended by deleting the phrase "Except
for approval of this Agreement by the Delaware Chancery Court."
The Trustee hereby reconfirms the representations and warranties
in Section 5 of the Agreement as of the date hereof.
5. Termination. Section 9(a) of the Agreement is hereby
amended and restated as follows: "Failure of the McM Board of
Directors to adopt the Plan during the Option Period." Section
9(b) of the Agreement is hereby amended so that the reference to
"June 30, 1997" is changed to "March 1, 1998".
6. Fees and Commissions. Section 12 of the Agreement is
amended to add the words "Berwind Corporation" after both
references to "PaineWebber, Incorporated."
7. Option to Purchase Shares. The Trustee hereby grants
to MAC an option to purchase all of its shares of common stock of
McM at any time prior to March 1, 1998 (the "Option Period").
The exercise price under the option will be $6.20 per share. The
Option may be exercised on three days written notice from MAC to
the Trustee specifying its intent to exercise the Option and the
time and place of closing. Payment for the shares will be by
certified check or wire transfer. The Trustee shall deliver
certificates representing the shares, duly endorsed by the
Trustee, to MAC.
The option granted in this Section shall apply to the shares
of McM common stock now held by the Trustee, any shares or voting
securities which may be substituted therefor by reason of any
recapitalization, reorganization, merger or consolidation of McM,
and any shares issued as a share dividend. In the event of any
such recapitalization, reorganization, merger, consolidation or
share dividend, the option price will be equitably adjusted.
8. No Further Amendment. Except as expressly provided
herein, the Agreement remains in full force and effect.
9. Capitalized Terms. Capitalized terms used but not
defined herein shall have the meanings given them in the
Agreement.
IN WITNESS WHEREOF, the parties have executed this First
Amendment to Agreement as of the date first above written.
▇▇▇▇▇▇▇▇ TRUST
Wilmington Trust Company as Trustee
By:
Title:
McM ACQUISITION CORPORATION
By: /s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇
M. ▇▇▇▇▇▇ ▇▇▇▇▇, President