EXHIBIT (b)
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made as of April 12, 2001 by and among General Xxxxx, Inc., a
Delaware corporation ("General Xxxxx"), General Xxxxx North American Businesses,
Inc., a Delaware corporation and wholly owned subsidiary of General Xxxxx
("Merger Sub"), Diageo plc, a public limited company incorporated under the laws
of England and Wales ("Diageo"), and The Pillsbury Company, a Delaware
corporation and indirect wholly owned subsidiary of Diageo ("Pillsbury"). Unless
otherwise specified, capitalized terms herein shall have the meaning ascribed to
them in the Merger Agreement (as herein defined).
RECITALS
WHEREAS, General Xxxxx, Merger Sub, Diageo and Pillsbury are the
parties to that certain Agreement and Plan of Merger, dated as of July 16, 2000
(the "Merger Agreement").
WHEREAS, the parties to the Merger Agreement desire to amend the
Merger Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Amendment, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Amendment of Termination Provisions. Section 10.1(b) of the Merger
Agreement is hereby replaced in its entirety with the following:
"(b) either General Xxxxx or Diageo, if the Effective Time shall not
have occurred by the close of business on June 30, 2001 (the "Termination
Date");"
2. Counterparts; Effectiveness. This Amendment may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement. Except as expressly amended hereby, the terms and conditions of the
Merger Agreement shall remain in full force and effect. The Merger Agreement, as
amended by this Amendment, shall be binding upon the parties hereto and their
successors and permitted assigns. This Amendment shall be effective as of the
date first written above.
3. Governing Law; Jurisdiction and Forum; Waiver of Jury Trial. (a)
This Amendment shall be governed by and construed in accordance with the laws of
the State of Delaware without reference to the choice of law principles thereof.
(b) Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of any Delaware state or federal court of appropriate
jurisdiction in any Action arising out of or relating to this Amendment, and
hereby irrevocably agrees that all claims in respect of such Action may be heard
and determined in such Delaware state or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum to the maintenance of such Action. The
parties further agree, to the extent permitted by applicable Law, that any final
and unappealable judgment against any of them in any Action contemplated above
shall be conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified copy of which
shall be conclusive evidence of the fact and amount of such judgment.
(c) To the extent that any party hereto has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, such party hereby irrevocably waives such immunity in respect of its
obligations with respect to this Amendment.
(d) Each party waives, to the fullest extent permitted by
applicable Law, any right it may have to a trial by jury in respect of any
Action arising out of or relating to this Amendment. Each party certifies that
it has been induced to enter into this Amendment by, among other things, the
mutual waivers and certifications set forth above in this Section 3.
4. Headings; Definitions. The section and article headings contained
in this Amendment are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Amendment. All capitalized terms
defined herein are equally applicable to both the singular and plural forms of
such terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first written above.
GENERAL XXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
GENERAL XXXXX NORTH AMERICAN BUSINESSES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
DIAGEO plc
By: /s/ Xxxx Xxxxxx Xxxxx
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Name: Xxxx Xxxxxx Xxxxx
Title: Group Chief Executive
THE PILLSBURY COMPANY
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice President Strategy and
Business Development
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