Exhibit 2.1
AMENDMENT NO. 1
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AMENDMENT No. 1 (this "Amendment"), dated October 25, 2002, to
the Agreement and Plan of Merger and Contribution, dated as of June 16, 2002
(the "Merger Agreement"), by and among Xxxxxx'x Grand Ice Cream, Inc.
("Dreyer's"), New December, Inc. ("New Dreyer's"), December Merger Sub, Inc.
("Merger Sub"), Nestle Holdings, Inc. ("Nestle") and NICC Holdings, Inc.
("Contributing Sub"). All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Merger Agreement.
WHEREAS, Dreyer's, New Dreyer's, Merger Sub, Nestle and
Contributing Sub (together, the "Parties") have heretofore executed and
entered into the Merger Agreement;
WHEREAS, pursuant to Section 11.8 of the Merger Agreement, the
Parties may amend the Merger Agreement by a written instrument executed by
each of them; and
WHEREAS, all acts and things necessary to make this Amendment a
valid agreement, enforceable according to its terms, have been done and
performed, and the execution and delivery of this Amendment by the Parties
have been in all respects duly authorized by the Parties;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
1. Section 2.7 of the Merger Agreement is hereby amended by
replacing "Xxxxxx'x Grand Ice Cream, Inc." with "Xxxxxx'x Grand Ice Cream
Holdings, Inc." in the first sentence thereof and references to "Xxxxxx'x Grand
Ice Cream, Inc." in the Form of Governance Agreement set forth as Exhibit D to
the Merger Agreement (other than in the first recital of such Governance
Agreement) are hereby conformed to read "Xxxxxx'x Grand Ice Cream Holdings,
Inc.".
2. Except as expressly set forth herein, this Amendment to the
Merger Agreement shall not by implication or otherwise alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Merger Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
3. This Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
4. Section 11.2 of the Merger Agreement ( "Governing Law;
Jurisdiction and Forum; and Waiver of Jury Trial") is made a part of and
applicable to this Amendment as fully and with such effect as if such section
were repeated here in its entirety with reference to this Amendment.
Exhibit 2.1
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ T. Xxxx Xxxxxx
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Name: T.Xxxx Xxxxxx
Title: Chief Executive Officer
NEW DECEMBER, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
DECEMBER MERGER SUB, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
NESTLE HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Senior Vice President, General
Counsel
NICC HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Senior Vice President, General
Counsel
