Exhibit 10.3
February 21, 2002
ING (U.S.) Capital LLC
1325 Avenue of the Americas
New York, NY 10019
Attention: Bob Fellows
MCM Capital Group, Inc.
5775 Roscoe Court
San Diego, California 92123
Attention: Carl C. Gregory, III
LETTER AGREEMENT
Ladies and Gentlemen:
We refer (i) to that certain Purchase Agreement, dated as of February
21, 2002 (the "Purchase Agreement"), between MCM Capital Group, Inc., a Delaware
corporation (the "Company") and the purchasers identified therein as
"Purchasers" (the "Purchasers"), provid ing for the issuance and sale by the
Company to the Purchasers of shares of Convertible Preferred Stock (as such term
is defined in the Purchase Agreement) and (ii) to that certain Note Purchase
Agreement, dated as of January 12, 2000, between the Company and ING (U.S.)
Capital LLC (as amended through the date hereof, including, without limitation,
by Amendment No. 2, the "Note Agreement"), pursuant to which the Company has
issued certain notes (the "Notes") to the purchasers thereof.
In connection with the execution of the Purchase Agreement and in order
to induce the holders of the Notes to enter into Amendment No. 2 to the Note
Agreement, the Purchasers agree for the benefit of the holders of the Notes
that, until such time as the Notes are indefeasibly paid in full in cash, no
dividend shall be paid in cash to any holder of Convertible Preferred Stock if
the payment of such dividend would be prohibited by the terms of Note Agreement.
Each Purchaser and the Company further agrees (i) that if such Purcha ser
receives any cash payment in contravention of the foregoing restriction, the
Company will take such action as may be necessary to rescind such cash dividend
to the extent of the ING Payment Amount (as hereinafter defined) so that such
rescinded portion of such dividend shall be treated as if it had never been
declared or paid and such Purchaser shall remit to the holders of the Notes (and
the Company hereby irrevocably instructs such Purchaser to remit to the holders
of the Notes), such portion of the cash payment received that would otherwise
have been payable to ING (US) Capital LLC in accordance with Section 6.2.5 of
the Note Agreement as if a dividend payment had been made in the amount of the
unrescinded dividend (the "ING Payment Amount") and (ii) to severally provide
written notice to ING (US) Capital LLC of its receipt of any cash dividend
payment made in respect of its Convertible Preferred Stock.
This Letter Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of law principles thereof. This
Letter Agreement may be executed in two or more counterparts, each of which will
be an original, but together will constitute a single document.
MCM Capital Group, Inc. 2 February 21, 2002
This Letter Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
If you are in agreement with the foregoing, please so indicate by
signing a copy of this letter agreement in the space provided below.
Sincerely,
MADISON WEST ASSOCIATES CORP.
By:/s/ Francis T. McCarron
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Name: Francis T. McCarron
Its: Senior Vice President
C.P. INTERNATIONAL INVESTMENTS LTD.
By: /s/ David Barnett
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Name: David Barnett
Its: Director
ROBERT MICHAEL WHYTE
/s/ Neville Joel Katz
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Signed by Neville Joel Katz, Power of
Attorney for Robert Michael Whyte
THE PELTZ FAMILY LIMITED PARTNERSHIP
By: /s/ Nelson Peltz
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Name: Nelson Peltz
Title: General Partner
JONATHAN P. MAY 1998 TRUST
By: /s/ Peter W. May
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Name: Peter W. May
Title: Co-Trustee
MCM Capital Group, Inc. 3 February 21, 2002
LESLIE A. MAY 1998 TRUST
By: /s/ Peter W. May
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Name: Peter W. May
Title: Co-Trustee
ERIC D. KOGAN
/s/ Eric D. Kogan
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JOHN L. BARNES, JR.
/s/ John L. Barnes, Jr.
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JARRETT POSNER
/s/ Jarrett Posner
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BRIAN L. SCHORR
/s/ Brian L. Schorr
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STUART I. ROSEN
/s/ Stuart I. Rosen
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ALEX LEMOND
/s/ Alex Lemond
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Accepted and Agreed:
MCM Capital Group, Inc.
By /s/ Robin R. Pruitt
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Senior V.P.
ING (U.S.) Capital LLC
By
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