AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
Exhibit
1.1
AMENDMENT
NO. 1 TO THE
THIS AMENDMENT NO. 1, dated as of October 2,
2008 (this “Amendment”),
by and among UST INC., a Delaware corporation (the “Company”),
ALTRIA GROUP, INC., a Virginia corporation (“Parent”),
and ARMCHAIR MERGER SUB, INC., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger
Sub”), is an amendment to that certain Agreement and Plan of Merger dated
as of September 7, 2008 (as amended, the “Merger
Agreement”) among the Company, Parent and Merger Sub.
W I T N E S S E T
H
WHEREAS, Parent has been
advised by its Lenders that it would be preferable to close the transactions
contemplated by the Merger Agreement in 2009; and
WHEREAS, pursuant to Section
9.2 of the Merger Agreement, the parties desire to amend the Merger Agreement
with respect thereto.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and based upon the mutual covenants contained herein, the Parties
agree as follows:
SECTION
1. Amendment to
the Merger Agreement.
(i) Section
1.2 (Closing) of the Merger Agreement is hereby deleted in its entirety and
replaced with the following:
“Unless
otherwise mutually agreed in writing between the Company and Parent, the closing
for the Merger (the “Closing”)
shall take place at the offices of Hunton & Xxxxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, XX at 10:00 a.m. (Eastern Time) as promptly as practicable (but in no
event later than the third (3rd) business day) following the satisfaction or
waiver of the conditions set forth in Article VII (other than those conditions
that by their nature are to be satisfied at the Closing, but subject to the
fulfillment or waiver of those conditions), provided that (a) if any required
pre-approval of any authority regulating the wine Business Unit has not been
obtained at the time all conditions set forth in Article VII have been waived or
fulfilled (other than those conditions that by their nature are to be satisfied
at the Closing), then Parent by written notice to the Company may extend, from
time to time, the Closing up to a date not beyond the four (4) month anniversary
of the date of this Agreement), and (b) at its sole discretion, Parent by
written notice to the Company may extend, from time to time, the Closing up to a
date no later than January 7, 2009 (the “Closing
Date”). For purposes of this Agreement, the term “business
day” shall mean any day other than a Saturday or Sunday or a day on which
banks are required or authorized to close in the City of New York.”
(ii) The
first sentence of Section 8.6(g) (Effect of Termination and Abandonment) of the
Merger Agreement is hereby deleted in its entirety and replaced with the
following:
“In
the event that (i) this Agreement is terminated by Parent or (ii) the Merger has
not been consummated by the End Date, except in either case under circumstances
where the Board of Directors of Parent has determined in accordance with its
good faith business judgment that Parent is permitted under this Agreement to
terminate this Agreement or is not required to consummate the Merger prior to
the End Date, then Parent shall promptly following receipt of written notice
from the Company requesting such payment, pay the Company a non-refundable fee
equal to $200,000,000 (the "Reverse
Termination Fee"); provided however, if (a) all of the conditions to
Closing set forth in Article VII are satisfied or waived (other than those
conditions that by their nature are to be satisfied at the Closing) on any day
on or prior to December 31, 2008 such that the Closing could have occurred on
that day and the Closing has not occurred on or before January 7, 2009; and (b) Parent has
not exercised its right to extend the Closing Date beyond December 31, 2008 in
accordance with Section 1.2(a), then the Reverse Termination Fee
shall be $300,000,000. The Reverse Termination Fee shall be payable by wire
transfer of same day funds to an account designated in writing to Parent by the
Company.”
SECTION
2. Reference to and Effect on
the Merger Agreement
(i) Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Merger Agreement.
(ii) Except
as amended hereby, the Merger Agreement is reconfirmed in all respects and
remains in full force and effect.
SECTION
3. 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 that would cause the laws of another jurisdiction to
apply).
SECTION
4. Execution in
Counterparts. This Amendment may be executed (including
by facsimile) in any number of counterparts, each such counterpart being deemed
to be an original instrument, and all such counterparts shall together
constitute the same agreement.
[Signature page
follows.]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
written above.
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ALTRIA
GROUP, INC.
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By:
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/s/
Xxxxxxx X. Xxxxxxxxxx
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Name:
Xxxxxxx X. Xxxxxxxxxx
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Title:
Chairman and Chief Executive Officer
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ARMCHAIR
MERGER SUB, INC.
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By:
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/s/
Xxxxxx X. Xxxxxxx III
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Name:
Xxxxxx X. Xxxxxxx III
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Title:
President
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By:
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/s/
Xxxxxx Xxxxxxx
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Name: Xxxxxx
Xxxxxxx
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Title: Chairman
and Chief Executive Officer
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