Exhibit 3
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of July 16, 2000, to
the Rights Agreement (the "Rights Agreement"), dated as of December 11, 1995,
between General Xxxxx, Inc., a Delaware corporation (the "Company"), and
Xxxxx Fargo Bank Minnesota, N.A., formerly known as Norwest Bank Minnesota,
N.A. (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof to make any provision with respect to
the Rights (as defined in the Rights Agreement) which the Company may deem
necessary or desirable, such supplement or amendment to be evidenced by a
writing signed by the Company and the Rights Agent; and
WHEREAS, the Company proposes to enter into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of July 16, 2000, among the Company,
General Xxxxx North American Businesses, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company ("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 an indirect wholly owned
subsidiary of Diageo ("Pillsbury"); and
WHEREAS, in connection with the consummation of the transactions
contemplated by the Merger Agreement, it is contemplated that the Company will
enter into a Stockholders Agreement with Diageo and certain subsidiaries of
Diageo in the form attached as an Exhibit to the Merger Agreement (the
"Stockholders Agreement"); and
WHEREAS, the Board of Directors of the Company has determined that
the transactions contemplated by the Merger Agreement (including the
transactions contemplated by the Subsidiary Purchase Agreements (as defined in
the Merger Agreement) and the Stockholders Agreement) are fair to and in the
best interests of the Company and its stockholders; and
WHEREAS, the Board of Directors of the Company has determined, in
connection with its contemplation of the Merger Agreement, that it is necessary
and desirable to amend the Rights Agreement to exempt the Merger Agreement and
the transactions contemplated thereby from the application of the Rights
Agreement as set forth in this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding the foregoing, none of Diageo plc, a public limited
company incorporated under the laws of England and Wales ("Parent"),
The Pillsbury
Company, a Delaware corporation and an indirect wholly
owned subsidiary of Parent ("Pillsbury"), Gramet Holdings
Corporation, a Delaware corporation and an indirect wholly owned
subsidiary of Parent, any subsidiary of Parent party to any
Subsidiary Purchase Agreement (as defined in the Merger Agreement,
as hereafter defined) nor any other person or entity that may become
a Shareholder Group Member (as defined in the Stockholders Agreement
to be entered into in connection with the consummation of the
transactions contemplated by the Merger Agreement) shall become an
Acquiring Person as a result of (a) the approval, execution,
delivery or performance of the Agreement and Plan of Merger, dated
as of July 16, 2000, among the Company, General Xxxxx North American
Businesses, Inc., Parent and Pillsbury (as it may be amended or
supplemented from time to time, the "Merger Agreement"), the
Subsidiary Purchase Agreements (as defined in the Merger Agreement)
or the Stockholders Agreement, (b) the consummation of the Merger or
the Subsidiary Purchases (as such terms are defined in the Merger
Agreement) or any other transaction contemplated by the Merger
Agreement, the Subsidiary Purchase Agreements or the Stockholders
Agreement or (c) the acquisition by any of them of any Original
Issued Shares (as defined in the Stockholders Agreement)
(collectively, the "Pillsbury Transactions")."
2. Section 3(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence immediately following
the first sentence thereof:
"Notwithstanding the foregoing, so long as the Merger Agreement has
not been terminated pursuant to Section 10.1 thereof, a Distribution
Date shall not occur or be deemed to occur as a result of any of the
Pillsbury Transactions."
3. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
4. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one
and the same instrument.
5. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted,
approved and confirmed. In executing and delivering this Amendment,
the Rights Agent shall be entitled to all the privileges and
immunities afforded to the Rights Agent under the terms and
conditions of the Rights Agreement.
6. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment, and of the
Rights Agreement, shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
-2-
IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
Attest: GENERAL XXXXX, INC.
By: /s/ Xxxxxxxxx Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: Xxxxxxxxx Xxxxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Assistant General Counsel -- Title: Senior Vice President,
Corporate General Counsel, Secretary
Attest: XXXXX FARGO BANK MINNESOTA, N.A.,
formerly known as NORWEST BANK
MINNESOTA, N.A.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- -----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary Title: Vice President
-3-
