THIRD AMENDMENT TO
SHAREHOLDERS AGREEMENT
This Third Amendment (this "Amendment") is entered into as of June 28,
2001 by and among ▇▇▇▇▇▇ May Holdings, Inc., a Delaware corporation
("Holdings"), ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Corporation, an Illinois corporation (the
"Company"), and the shareholders of Holdings named on the signature pages hereof
(the "Shareholders"), and amends the Shareholders Agreement entered into as of
October 30, 1991 among Holdings, the Company and the Shareholders (or the
persons or entities from whom the Shareholders, directly or indirectly, have
obtained shares of Holdings' common stock) (as amended, the "Shareholders
Agreement"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings provided such terms in the Shareholders Agreement.
RECITALS
WHEREAS, the Company and Sweet Factory, Inc., an indirect,
wholly-owned subsidiary of the Company, desire to enter into a Financing
Agreement with The CIT Group/Business Credit, Inc. and/or other lenders (as may
be amended, modified, or supplemented from time to time, the "Credit Facility");
and
WHEREAS, it is a condition to the closing of the Credit Facility that
the parties hereto enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, the undersigned hereby agree as follows:
1. Section 2(a) of the Shareholders Agreement is hereby amended to
read "until October 30, 2011" rather than "from and after the Closing Date and
for a period of ten years thereafter".
2. Section 3(b) of the Shareholders Agreement is hereby amended by:
(a) deleting the word "or" from clause (ii) thereof; and
(b) adding the following after clause (iii) thereof:
"(iv) (A) enter into any transaction of merger,
consolidation or amalgamation, or liquidate, wind up or dissolve
itself, (B) convey, sell, lease, transfer or otherwise dispose of in a
transaction or related series of transactions 10% (determined on the
basis of fair market value) or more of the property, business or
assets of Holdings and its Subsidiaries or (C) acquire by purchase or
otherwise the business or any assets of, or stock or other evidences
of beneficial ownership of, any Person with a purchase price in excess
of 10% (determined on the basis of fair market value) of the aggregate
value of the property, business and assets of Holdings and its
Subsidiaries; PROVIDED, that the foregoing affirmative
vote or consent shall not be required for any of the following
transactions: (x) the merger or consolidation of any Subsidiary of
Holdings with or into Holdings or with or into any one or more wholly
owned Subsidiaries of Holdings; or (y) the sale, lease, transfer or
other disposition by any Subsidiary of Holdings of any or all of its
respective assets (upon voluntary liquidation or otherwise) to any one
or more wholly-owned Subsidiaries of Holdings or to Holdings;
(v) create, incur, assume, guarantee or otherwise become or
remain liable with respect to any indebtedness in excess of $5,000,000
or enter into any other transaction having a similar effect, other
than indebtedness of a Subsidiary of Holdings owing to Holdings or to
another Subsidiary of Holdings and indebtedness of the Company or a
Subsidiary of the Company existing as of the date hereof; or
(vi) elect or remove the President or Chief Financial
Officer of Holdings or the Company;"
3. Section 9(g) of the Shareholders Agreement is hereby amended to
read "October 30, 2011" rather than "the tenth anniversary hereof".
4. To induce the TCW Entities to enter into this Amendment, the
Jordan Group has set forth on ANNEX A a list of members of the Jordan Group and
their affiliates (the "Jordan Holders") that beneficially own notes issued
pursuant to the Indenture, together with the aggregate principal amount of such
notes. The Jordan Group agrees that it will promptly notify the TCW Entities
upon each acquisition by the Jordan Holders of notes issued pursuant to the
Indenture in an aggregate principal amount in excess of $5,000,000.
5. To induce the Jordan Group to enter into this Amendment, the TCW
Entities that are a party to this Amendment acknowledge that no such TCW Entity
beneficially owns any notes issued pursuant to the Indenture. Such TCW Entities
agree that they will promptly notify the Jordan Group upon each acquisition by
such TCW Entities of notes issued pursuant to the Indenture in an aggregate
principal amount in excess of $5,000,000.
6. The notice address set forth in Section 9(m) of the Shareholders
Agreement is hereby amended to read as follows:
▇▇▇▇▇▇ May Holdings, Inc.
c/o The Jordan Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Max, Managing Director
with a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
7. This Amendment is effective as of the date hereof.
8. Except as specifically amended by this Amendment, the
Shareholders Agreement shall remain in full force and effect and is hereby
ratified and confirmed. The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provisions of, or operate as a waiver of any right, power or remedy of the
Shareholders under, the Shareholders Agreement.
9. This Amendment 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.
10. This Amendment and the legal relations between the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to contacts made and performed in such state and without regard
to conflicts of law doctrines except to the extent that certain matters are
preempted by federal law or are governed by the law of the jurisdiction of
organization of the respective parties.
[signature pages follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Third
Amendment to Shareholders Agreement to be executed by its duly authorized
officers as of the day and year first above written.
▇▇▇▇▇▇ MAY HOLDINGS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its: President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its: President
TCW SPECIAL PLACEMENTS FUND III
By: TCW Capital
Its: General Partner
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Group Managing Director
TCW CAPITAL, as Investment Manager
pursuant to an Investment Management
Agreement dated as of June 30, 1989
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Group Managing Director
[signature page to Third Amendment to Shareholders Agreement]
TCW CAPITAL, as Investment Manager
pursuant to an Investment Management
Agreement dated as of April 18, 1990
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Group Managing Director
MEZZANINE CAPITAL
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Group Managing Director
WCT INVESTMENT PTE. LTD.
By: /s/ ▇▇▇ ▇▇▇▇
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Its: Vice President
JORDAN INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
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Its: Chairman
JZ EQUITY PARTNERS PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Its: Investment Advisor
[signature page to Third Amendment to Shareholders Agreement]
LEUCADIA INVESTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Orlando
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Its: Vice President
THE ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ REVOCABLE TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
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THE JW/JENN TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
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Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. Max
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/s/ ▇▇▇▇ ▇. ▇▇▇▇
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[signature page to Third Amendment to Shareholders Agreement]