Exhibit 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
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This AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of August 4, 2005, by and among FORTUNE BRANDS, INC., a
Delaware corporation ("Fortune"), ACCO WORLD CORPORATION, a Delaware
corporation ("ACCO"), GEMINI ACQUISITION SUB, INC., a Delaware corporation
("Acquisition Sub"), and GENERAL BINDING CORPORATION, a Delaware corporation
("GBC"), is entered into to amend the Agreement and Plan of Merger, dated as
of March 15, 2005, by and among Fortune, ACCO, Acquisition Sub and GBC (the
"Agreement") in the following particulars only:
W I T N E S S E T H :
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WHEREAS, Fortune, ACCO, Acquisition Sub and GBC desire to
amend the Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants hereinafter contained, the parties hereby
agree as follows:
1. Definitions. Capitalized terms used in this Amendment and
defined in the Agreement shall have the meanings ascribed to such terms in the
Agreement.
2. Amendment of Section 1.1. Section 1.1 of the Agreement is
hereby amended as follows:
(a) The definition of the term "ACCO Common Stock Price" is
hereby deleted and restated in its entirety as follows:
"'ACCO Common Stock Price' means the trading price per share
of ACCO Common Stock trading "regular way" based on the
first trade reported on the NYSE Composite Transactions
reporting system on the first full NYSE trading day
immediately following the Time of Distribution."
(b) The definition of the term "GBC Stock Plans" is hereby
deleted and restated in its entirety as follows:
"'GBC Stock Plans' means, collectively, the General Binding
Corporation 1989 Stock Option Plan, as amended and restated,
the GBC 2001 Stock Incentive Plan for Employees and the GBC
Non-Employee Directors 2001 Stock Option Plan."
(c) The definition of the term "Pre-Distribution Fortune
Common Stock Price" is hereby deleted and restated in its entirety as
follows:
"'Pre-Distribution Fortune Common Stock Price' means the
trading price per share of Fortune Common Stock trading
"regular way" (i.e., with due bills and including the value
of the ACCO Common Stock to be distributed in respect
thereof) based on the last trade reported on the NYSE
Composite Transactions reporting system on the last full
NYSE trading day immediately preceding the Time of
Distribution (which may be the Distribution Date)."
3. Amendment of Section 2.5. Section 2.5(b) of the Agreement
is hereby deleted and restated in its entirety as follows:
"(b) All shares of GBC Common Stock and GBC Class B
Common Stock converted into the right to receive ACCO Common
Stock pursuant to this Article II shall no longer be
outstanding and shall automatically be canceled and shall
cease to exist, and each certificate or book-entry credit
previously evidencing any such shares of GBC Common Stock or
GBC Class B Common Stock (a "GBC Certificate") shall
thereafter evidence only the right to receive the number of
whole shares of ACCO Common Stock (which shall be in
uncertificated book-entry form) into which the shares of GBC
Common Stock or GBC Class B Common Stock formerly evidenced
by such GBC Certificate have been converted pursuant to this
Section 2.5. GBC Certificates shall be exchanged for whole
shares of ACCO Common Stock issued in consideration therefor
upon the surrender of such GBC Certificates in accordance
with Section 3.2, without any interest thereon. If between
the date hereof and the Effective Time, the outstanding
shares of GBC Common Stock or GBC Class B Common Stock shall
have been increased, decreased, changed into or exchanged
for a different number or kind of shares or securities as a
result of a reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock
split or other similar change in capitalization (other than
solely as a result of the Merger), an appropriate and
proportionate adjustment shall be made to the Exchange
Ratio."
4. Amendment of Section 3.2. Section 3.2 of the Agreement is
hereby amended as follows:
(a) Section 3.2(a) of the Agreement is amended by deleting
from the parenthetical in the second sentence thereof the
phrase "unless a physical certificate is requested".
(b) Section 3.2(c) of the Agreement is deleted and restated
in its entirety as follows:
"(c) If any book-entry credit evidencing
shares of ACCO Common Stock is to be registered in
a name other than that in which the GBC Certificate
surrendered in exchange therefor is registered, it
shall be a condition of the issuance thereof that
the GBC Certificate so surrendered shall be
properly endorsed (or accompanied by an appropriate
instrument of transfer) and otherwise in proper
form for transfer, and that the person requesting
such exchange shall pay to the Exchange Agent in
advance any transfer or other taxes required by
reason of the issuance of a book-entry credit
evidencing shares of ACCO Common Stock in any name
other than that of the registered holder of the GBC
Certificate surrendered, or required for any other
reason, or shall establish to the satisfaction of
the Exchange Agent that such tax has been paid or
is not payable."
(c) The last sentence of Section 3.2(d) of the Agreement is
hereby amended by deleting therefrom the phrase
"certificates representing".
5. Amendment of Section 7.16(a). The last sentence of
Section 7.16(a) of the Agreement is hereby deleted in its entirety.
6. Interpretation. The Agreement shall not be amended or
otherwise modified hereby except as set forth in Sections 2 through 5 of this
Amendment. Except as expressly amended by Sections 2 through 5 of this
Amendment, the Agreement shall remain in full force and effect. In the event
of any inconsistency or contradiction between the terms of this Amendment and
the Agreement, the provisions of this Amendment shall prevail and control.
7. Reference to the Agreement. On and after the date hereof,
each reference in the Agreement to "this Agreement", "hereof", "herein",
"herewith", "hereunder" and words of similar import shall, unless otherwise
stated, be construed to refer to the Agreement as amended hereby. No reference
to this Amendment need be made in any instrument or document at any time
referring to the Agreement, a reference to the Agreement in any such
instrument or document to be deemed to be a reference to the Agreement as
amended hereby.
8. Counterparts. This Amendment may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood
that the parties need not sign the same counterpart.
9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware (without giving
effect to choice of law principles thereof).
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
FORTUNE BRANDS, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President, General
Counsel and Secretary
ACCO WORLD CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President -
Finance and Administration
GEMINI ACQUISITION SUB, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President and Treasurer
GENERAL BINDING CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President, Secretary
and General Counsel
