Exhibit 2.1
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AMENDMENT NO. 3
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Amendment No. 3 (this "Amendment"), dated June 16, 2003 to the
Agreement and Plan of Merger and Contribution, dated as of June 16, 2002, as
amended on October 25, 2002 and February 5, 2003 (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. ("NICC"). All capitalized terms not
("Nestle") and NICC Holdings, Inc. ("NICC"). 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 NICC
(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, the parties wish to amend the Merger Agreement as set
forth below;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the parties hereto agree as follows:
1. Section 10.1(b) of the Merger Agreement is hereby amended
by replacing the words "the close of business on the anniversary date hereof"
with "5:00pm (Eastern Time) on June 30, 2003".
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.
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: Chairman of the Board and 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 and Secretary
NICC HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary
