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SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "AGREEMENT") is made as of this July 5,
2001, by and between General Electric Capital Corporation, a New York
corporation ("GE CAPITAL"), General Electric Pension Trust, a New York common
law trust ("GE PENSION"), and GE Investment Private Placement Partners I, a
Delaware limited partnership ("GEIPPP" and, collectively with GE Capital and the
Trustees, the "SELLERS") on the one hand, and Nestle Holdings, Inc., a Delaware
corporation (the "BUYER"), on the other hand, with respect to the following
facts and circumstances:
A. Sellers are the holders of 5,799,998 shares (the "AGGREGATE SHARES") of the
common stock, par value $1.00, of Xxxxxx'x Grand Ice Cream, Inc. (the "COMMON
STOCK"), a Delaware corporation (the "COMPANY"), as follows:
Seller Shares
GE Capital 2,899,999
GE Pension 1,172,989
GEIPPP 1,727,010
X. Xxxxxxx desire to sell to Buyer a portion of the Aggregate Shares, and Buyer
desires to acquire from Sellers a portion of the Aggregate Shares at the
purchase price and subject to the terms and conditions set forth herein, as
follows (the "SHARES"):
Seller Shares
GE Capital 1,700,000
GE Pension 687,616
GEIPPP 1,012,384
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
set forth herein, Sellers and Buyer hereby agree as follows:
1. DEFINITIONS.
1.1 For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.1:
(a) "ACTION" shall mean any claim, demand, litigation, action, suit,
investigation, proceeding, hearing, complaint, assessment, inquiry or judgment,
administrative or judicial, at law or in equity.
(b) "APPLICABLE LAW" means, with respect to a Person, any domestic or
foreign, federal, state or local statute, law (including principles of common
law), ordinance, rule, administrative interpretation, regulation, order, writ,
injunction, legally binding directive, judgment, decree or other requirement of
any Governmental Authority applicable to such Person or any of its properties
(including, with respect to Sellers, the Shares).
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934.
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(d) "GOVERNMENTAL AUTHORITY" means any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization or any regulatory, administrative or other
agency, or any political or other subdivision, department or branch of any of
the foregoing.
(e) "HSR ACT" means the United States Federal Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder.
(f) "LIEN" includes any mortgage, lien, pledge, security interest,
conditional sale agreement, charge, claim, easement, right, condition,
restriction or other encumbrance or defect of title of any nature whatsoever
(including, without limitation, any assessment, charge or other type of notice
which is levied or given by any Governmental Authority and for which a lien
could be filed).
(g) "ORDER" means any order, decree, temporary, preliminary or
permanent injunction, or any judgment or ruling by any Governmental Authority.
(h) "PERSON" means and includes an individual, a corporation, a
partnership, a limited liability company, a trust, an unincorporated
organization, a government or any department or agency thereof, or any entity
similar to any of the foregoing.
(i) "REQUIRED CONTRACTUAL CONSENTS" means, with respect to any Person,
any Contracts of such Person with respect to which the consent of the other
party or parties thereto must be obtained by such Person pursuant to an express
term or provision thereof by virtue of the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby to avoid
the termination thereof, a material breach or default thereunder that cannot be
cured.
(j) "REQUIRED GOVERNMENTAL CONSENTS" means, with respect to any
Person, each governmental or other registration, filing, application, notice,
transfer, consent, approval, order, qualification and waiver required under
Applicable Law to be obtained by such Person by virtue of the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
1.2 In addition, the following terms shall have the meanings defined for
such terms in the Sections set forth below:
Aggregate Shares Recital A
Buyer Preamble
Closing 2.1
Closing Date 2.1
Common Stock Recital A
Company Recital A
Declaration 3.2.1(b)
GE Capital Preamble
GE Pension Preamble
GEIPPP Preamble
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Purchase Price 2.2
Sellers Preamble
Shares Recital B
Transactions 3.1.2
Trustees Preamble
2. PURCHASE OF SHARES.
2.1 CLOSING. The Closing of the purchase of the Shares contemplated herein
(the "CLOSING") shall be held on the Closing Date at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at a
time and date specified by the Buyer and Sellers, which shall be no later than
the second business day after the satisfaction or waiver of the conditions set
forth in Sections 5 and 6, or at such other time, date and location as the Buyer
and Sellers agree in writing (the "CLOSING DATE").
2.2 PURCHASE AND TRANSFER. At the Closing and subject to the terms and
conditions of this Agreement, Buyer agrees to purchase the Shares from Sellers,
and each Seller agrees to sell its Shares to Buyer, in consideration of a
payment by Buyer in the amount of $31.50 per share, or $107,100,000.00 in the
aggregate (the "PURCHASE PRICE").
2.3 PAYMENTS AT CLOSING. At the Closing and subject to the terms and
conditions of this Agreement, Buyer shall pay the Purchase Price in immediately
available funds by wire transfer to an account established by each Seller, and
specified to Buyer at least two business days prior to the Closing Date.
2.4 SELLER DELIVERIES AT CLOSING. On the Closing Date, each Seller shall
deliver to Buyer the following:
2.4.1 A certificate or certificates evidencing the Shares sold by such
Seller, accompanied by a duly executed stock power separate from the
certificates in the form attached as Exhibit A; and
2.4.2 A certificate executed by an officer of such Seller (in the case
of GE Capital), the general partner of such Seller (in case of GEIPPP), or, in
the case of GE Pension, an authorized officer of GE Asset Management
Incorporated ("GEAM"), certifying that all of the representations and warranties
of such Seller herein are true and correct as of the Closing Date and that such
Seller has performed and satisfied all of the agreements and covenants required
to be performed by such Seller hereunder on or prior to the Closing.
2.5 BUYER DELIVERIES AT CLOSING. On the Closing Date, Buyer shall deliver
to Sellers, in addition to payment of the Purchase Price as provided in Section
2.3, a certificate executed by an officer of Buyer certifying that all of the
representations and warranties of Buyer herein are true and correct as of the
Closing Date and that Buyer has performed and satisfied all of the agreements
and covenants required to be performed by it hereunder on or prior to the
Closing.
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3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
3.1 BY BUYER. As an inducement for Sellers to enter into this Agreement, as
of the date hereof, Buyer represents, warrants and agrees as follows:
3.1.1 Organization. Buyer is a corporation duly organized and validly
existing and in good standing under the laws of the state of Delaware.
3.1.2 Authority. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby (the
"TRANSACTIONS"), in each case by Buyer, are within Buyer's corporate powers and
have been duly authorized by all necessary corporate action on the part of
Buyer. No other corporate proceedings on the part of Buyer are, and no
shareholder approval is, or will be necessary to authorize this Agreement and
the Transactions. This Agreement has been duly and validly executed by Buyer and
constitutes the legal, valid and binding agreement of Buyer, enforceable against
Buyer in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and subject to general principles of equity.
3.1.3 Noncontravention. The execution, delivery and performance of
each of this Agreement and the consummation of the Transactions will not (i)
contravene or conflict with the certificate of incorporation or bylaws of Buyer,
or any amendment thereto, (ii) constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or breach
of, the terms, conditions or provisions of any material note, bond, mortgage,
indenture, license, lease, agreement or other material instrument or obligation
to which Buyer is a party or by which Buyer is bound, or (iii) violate any
judgment, order, injunction, decree, statute, rule, law or regulation applicable
to Buyer.
3.1.4 No Required Consents. With respect to Buyer, there are no
Required Contractual Consents or Required Governmental Consents other than in
connection with or in compliance with the provisions of the HSR Act and the
Exchange Act.
3.2 BY SELLERS. As an inducement for Buyer to enter into this Agreement, as
of the date hereof, each Seller represents, warrants and agrees severally, as to
itself only, as follows:
3.2.1 Organization.
(a) GE Capital is a corporation duly organized and validly existing
and in good standing under the laws of the state of New York. GEIPPP is a
limited partnership duly organized and validly existing and in good standing
under the laws of the state of Delaware.
(b) GE Pension is a New York common law trust, duly created and
validly existing under the laws of the state of New York, and has not been
revoked, modified, or amended in any manner which would cause the
representations and warranties made by GEAM herein on its behalf to be untrue or
incorrect or cause this Agreement to be unenforceable against GE Pension or the
Trustees.
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3.2.2 Authority.
(a) The execution, delivery and performance by GE Capital and GEIPPP
of this Agreement and the consummation by them of the Transactions are within
their respective corporate or partnership powers and have been duly authorized
by all necessary corporate or partnership action on their part. No other
corporate or partnership proceedings on the part of each of GE Capital or GEIPPP
are, and no shareholder or partner approval is, or will be necessary to
authorize this Agreement and the Transactions. This Agreement has been duly and
validly executed by each of GE Capital and GEIPPP and constitutes the legal,
valid and binding agreement of each of them, enforceable against each of them in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and subject general principles of equity.
(b) GEAM, as Investment Manager of GE Pensions, has properly delegated
fiduciary authority from the trustees of GE Pension to act on behalf of GE
Pension with respect to the Transactions. The execution, delivery and
performance by GE Pension of this Agreement and the consummation by it of the
Transactions are within its trust powers and have been duly authorized by all
necessary action on its part. No other proceedings on the part of GE Pension are
or will be necessary to authorize this Agreement and the Transactions. This
Agreement has been duly and validly executed by GEAM, as Investment Manager of
GE Pension, on behalf of GE Pension and constitutes the legal, valid and binding
agreement of GE Pension, enforceable against it in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and subject to
general principles of equity.
3.2.3 Non-Contravention. The execution, delivery and performance of
each of this Agreement and the consummation of the Transactions will not (i)
contravene or conflict with (A) the certificate of incorporation or bylaws of GE
Capital, (B) the certificate of limited partnership or partnership agreement of
GEIPPP, or (C) the declaration of trust of GE Pension, in each case including
any amendment thereto; (ii) constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, or breach of, the
terms, conditions or provisions of any material note, bond, mortgage, indenture,
license, lease, agreement or other material instrument or obligation to which
any Seller is a party or by which any Seller is bound; or (iii) violate any
judgment, order, injunction, decree, statute, rule, law or regulation applicable
to any Seller.
3.2.4 No Required Consents. With respect to Seller, there are no
Required Contractual Consents or Required Governmental Consents other than in
connection with or in compliance with the provisions of the HSR Act and the
Exchange Act.
3.2.5 Ownership. Each Seller has title to the Shares transferred by it
hereunder free and clear of all Liens with full right, power and authority to
transfer such Shares to Buyer. No Seller is a party to, and neither any Seller
nor any Shares are subject to, directly or indirectly, any call, commitment,
warrant, option or other agreement for the sale, encumbrance or other transfer
of all or any portion of the Shares. Upon transfer to Buyer, the Shares will be
free and clear of all Liens (other than Liens, if any, created by Buyer or as a
result of Buyer's ownership of the Shares). Except as set forth in Schedule
3.2.5, there are
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no agreements or instruments to which any Seller is a party relating to the
Shares (including, without limitation, voting agreements, voting trusts,
registration rights agreements, rights to purchase or restrictions on transfer).
4. COVENANTS. Upon the terms and subject to the conditions contained herein,
each of the parties hereto agrees, both before and after the Closing, to use
such party's commercially reasonable best efforts to (i) promptly after the
execution and delivery of this Agreement, make all filings required under the
HSR Act, and subsequently to obtain any necessary approval for the Transactions
thereunder, (ii) give all notices to, and make all registrations and filings
with third parties, including submissions of information requested by
Governmental Authorities, required by this Agreement or necessary or advisable
for the consummation the Transactions, and (iii) fulfill all conditions to this
Agreement.
5. CONDITIONS TO OBLIGATIONS OF BUYER. Buyer's obligation to consummate the
Transactions are subject to the fulfillment or satisfaction, on and as of the
Closing, of each of the following conditions (any one or more of which may be
waived by Buyer, but only in a writing signed by Buyer):
5.1 DELIVERIES AT CLOSING. Each Seller shall have delivered or caused to be
delivered to Buyer the items required to be delivered pursuant to Section 2.4.
5.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Sellers set forth in this Agreement (i) that are qualified as to
materiality will be true and correct, and (ii) that are not qualified as to
materiality shall be true and correct in all material respects, in each case on
and as of the Closing Date with the same force and effect as if they had been
made on the Closing Date, and at the Closing, Buyer will have received a
certificate to such effect pursuant to Section 2.4.2.
5.3 COVENANTS. Each Seller will have performed and complied in all material
respects with all of its covenants contained in this Agreement on or before the
Closing (to the extent that such covenants require performance by such Seller on
or before the Closing), and at the Closing, Buyer will have received a
certificate to such effect pursuant to Section 2.4.2.
5.4 NO LEGAL RESTRAINTS. No court of competent jurisdiction or other
Governmental Authority shall have issued a preliminary or permanent injunction
or similar Order prohibiting or rendering illegal the Transactions. The parties
will have obtained any necessary approval for the Transactions under the HSR Act
(or any necessary waiting period shall have expired).
6. CONDITIONS TO OBLIGATIONS OF SELLERS. Sellers' obligation to consummate the
Transactions are subject to the fulfillment or satisfaction, on and as of the
Closing, of each of the following conditions (any one or more of which may be
waived by each Seller, but only in a writing signed by such Seller:
6.1 DELIVERIES AT CLOSING. Buyer shall have delivered or caused to be
delivered to Sellers the items required to be delivered pursuant to Section 2.5.
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6.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer set forth in this Agreement (i) that are qualified as to
materiality will be true and correct, and (ii) that are not qualified as to
materiality shall be true and correct in all material respects, in each case on
and as of the Closing Date with the same force and effect as if they had been
made on the Closing Date, and at the Closing, Sellers will have received a
certificate to such effect pursuant to Section 2.5.
6.3 COVENANTS. Buyer will have performed and complied in all material
respects with all of its covenants contained in this Agreement on or before the
Closing (to the extent that such covenants require performance by Buyer on or
before the Closing), and at the Closing, Sellers will have received a
certificate to such effect pursuant to Section 2.5.
6.4 NO LEGAL RESTRAINTS. No court of competent jurisdiction or other
Governmental Authority shall have issued a preliminary or permanent injunction
or similar Order prohibiting or rendering illegal the Transactions. The parties
will have obtained any necessary approval for the Transactions under the HSR Act
(or any necessary waiting period shall have expired).
7. TERMINATION.
7.1 TERMINATION OF AGREEMENT.
7.1.1 Termination by Mutual Consent. This Agreement may be
terminated at any time prior to the Closing by the mutual written consent of
Buyer and Sellers.
7.1.2 Unilateral Termination. Either Buyer or Sellers, by giving
written notice to the other, may terminate this Agreement if the Closing shall
not have occurred by midnight Pacific Time on September 30, 2001; provided,
however, that the right to terminate this Agreement pursuant to this Section
7.1.2 shall not be available to any party whose failure to perform in any
material respect any of its obligations or covenants under this Agreement
results in the failure of any condition set forth in Section 5 or 6 or if the
failure of such condition results from facts or circumstances that constitute a
material breach of a representation or warranty or covenant made under this
Agreement by such party.
7.1.3 Effect of Termination. Termination of this Agreement by a party
(the "TERMINATING PARTY") in accordance with the provisions of this Section 7
will not give rise to any obligation or liability on the part of the Terminating
Party on account of such termination; provided, however, that nothing herein
shall relieve a party from liability for a willful breach of this Agreement. The
provisions of this Section 7 and of Section 8 shall survive any termination of
this Agreement.
8. MISCELLANEOUS.
8.1 PUBLICITY. Except by mutual agreement (which Agreement may be granted
or withheld by any party in its sole and absolute discretion), and except as
required by Applicable Law, neither Buyer nor Sellers shall issue any press
release or make any public statement regarding, or disclose to any third party
(other than the Company) any of the terms of the Transactions; provided, that
each of Buyer and Sellers may file an amended Schedule 13D under the Exchange
Act, containing a description of this Agreement in the form
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attached as Exhibit B, and attaching the text of this Agreement as an exhibit to
such Schedule 13D.
8.2 FURTHER ASSURANCES. Each of the parties hereto does hereby covenant and
agree on behalf of itself, its successors, and its assigns, without further
consideration, to prepare, execute, acknowledge, file, record, publish, and
deliver such other instruments, documents and statements, and to take such other
action as may be required by law or as may be reasonably necessary, appropriate
or expedient to effectively carry out the purposes of this Agreement.
8.3 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including all Exhibits
and Schedules and the other instruments and other documents executed and/or
delivered in connection herewith, constitutes the entire agreement among the
parties pertaining to the subject matter hereof, and supersedes all prior oral
and written, and all contemporaneous oral, agreements and understandings
pertaining thereto. This Agreement may only be amended by the prior written
mutual agreement of each of the parties.
8.4 GOVERNING LAW. This Agreement, including its existence, validity,
construction and operating effect, and the rights of each of the parties hereto,
shall be governed by and construed in accordance with the laws of the state of
Delaware, without regard to otherwise governing principles of conflicts of law.
8.5 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. Each of the parties
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of Delaware and the courts of the United
States of America located in the State of Delaware for any litigation arising
out of or relating to this Agreement or the Transactions (and agrees not to
commence any litigation relating hereto except in such courts), and further
agrees that service of any process, summons, notice or document by U.S.
registered mail to its respective address set forth in Section 8.11 shall be
effective service of process for any litigation brought against it in any such
court. Each of the parties hereby irrevocably and unconditionally waives any
objection to the laying of venue of any litigation arising out of this Agreement
or the Transactions in the courts of the State of Delaware or the courts of the
United States of America located in the State of Delaware and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such litigation brought in any such court has been brought
in an inconvenient forum. Notwithstanding anything to the contrary in this
Agreement, any of the parties hereto may seek, to the fullest extent permitted
by law, judicial enforcement in any court of any relief obtained from any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the Transactions. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT
MAY HAVE TO TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS.
8.6 CONSTRUCTION. This Agreement shall be construed as if all parties
prepared this Agreement.
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8.7 SUCCESSORS AND ASSIGNS. The covenants, terms and provisions set forth
herein shall inure to the benefit of and be enforceable by the parties, their
assigns and successors in interest, including without limitation, any entity
into which either of the parties may be merged or by which it may be acquired,
provided that rights, duties and obligations hereunder may not be assigned by
any party hereto without the prior written consent of the other parties.
Notwithstanding the foregoing, Buyer may assign its rights, benefits or
obligations under this Agreement to any of its affiliates, provided that no such
assignment shall relieve Buyer of its obligations under this Agreement. Any
attempted assignment in violation of this Section 8.7 shall be null and void.
8.8 SEVERABILITY. In the event that any provision of this Agreement or any
word, phrase, clause, sentence or other portion thereof should be held to be
unenforceable or invalid for any reason, such provision or portion thereof shall
be modified or deleted in such a manner so as to make this Agreement as modified
legal and enforceable to the fullest extent permitted under applicable laws.
8.9 PARTIES IN INTEREST. Nothing herein expressed or implied is intended to
or shall be construed to confer upon or give any person or entity, other than
the parties hereto, and their respective successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
8.10 EXPENSES. Each of the parties shall pay all costs and expenses
incurred by or on its behalf in connection with, relating to or arising out of
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby and thereby, including, without limiting
the generality of the foregoing, fees and expenses of its financial consultants,
accountants and legal counsel.
8.11 NOTICES. Any notice, consent, payment, demand, or communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be (a) delivered personally to the Person or to an officer of
the Person to whom the same is directed, or (b) sent by facsimile (with
confirmation of transmission) or overnight delivery, addressed as follows:
If to Buyer:
Nestle Holdings, Inc.
000 X. Xxxxx Xxxx.
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx, Esq.
Senior Vice President and General Counsel
with a copy to:
Xxxxxx & Xxxxxxx
000 X. Xxxxx Xx., Xxxxx. 0000
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxx Xxxxxx, Esq.
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If to GE Capital:
General Electric Capital Corporation.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Shine, Esq.
If to GEIPPP or GE Pension:
c/o GE Asset Management Incorporated
GE Investments
0000 Xxxxxx Xxxxxx
P.O. Box 0000
Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx, Esq.
or to such other address as either party may from time to time specify as to
itself by notice to the others. Any such notice shall be deemed to be delivered,
given and received for all purposes as of: (x) the date so delivered, if
delivered personally, (y) upon receipt of a confirmation of successful
transmission, if sent by facsimile, or (z) on the date of receipt or refusal
indicated on the return receipt, if sent by registered or certified mail, return
receipt requested, postage and charges prepaid and properly addressed.
8.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument binding on all parties
hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first written above.
SELLERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation
By: /s/ XXXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Department Operations Manager
GENERAL ELECTRIC PENSION TRUST,
a New York common law trust,
By: GE ASSET MANAGEMENT INCORPORATED,
a Delaware corporation,
its investment manager
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President and
Managing Director
GE INVESTMENT PRIVATE PLACEMENT PARTNERS I,
a Delaware limited partnership,
By: GE ASSET MANAGEMENT INCORPORATED,
a Delaware corporation,
its general partner
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President and
Managing Director
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BUYER:
NESTLE HOLDINGS, INC.,
a Delaware corporation
By: /s/ XXXXXXX XXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED ____________________ hereby sells, assigns and transfers
unto Nestle Holdings, Inc. ________ shares of the Common Stock, par value $1.00
of Xxxxxx'x Grand Ice Cream, Inc. standing in its name on the books of said
Corporation represented by Certificate(s) No(s)________ previously forwarded to
you and do hereby irrevocably constitute and appoint
________________________________________
attorney to transfer the said stock on the books of said Corporation with full
power of substitution in the premises.
Dated: _______________________
___________________________
X-0
00
XXXXXXX X
DESCRIPTION OF AGREEMENT
On July 5, 2001, Nestle Holdings, Inc. ("Holdings") entered into a Share
Purchase Agreement (the "Share Purchase Agreement") to purchase an aggregate
3,400,000 Shares, representing 9.89%(1) of the total Shares outstanding, from
General Electric Capital Corporation, the Trustees of General Electric Pension
Trust and GE Investment Private Placement Partners I (the "GE Parties") in
exchange for an aggregate consideration of $107,100,000 in cash. Consummation of
such purchases of Shares is conditioned on the expiration or termination of the
waiting period imposed under the Xxxx-Xxxxx-Xxxxxx Improvements Act of 1976, as
amended.
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(1) This percentage and all other such percentages in this Amendment
are based on 34,377,998 Shares outstanding, calculated by combining the
28,578,000 Shares outstanding as of May 11, 2001, as reported in the Issuer's
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2001,
with 5,799,998 Shares that the GE Parties have informed Holdings they received
on conversion of the Company's Series A Preferred Stock following a written
request made on June 19, 2001.
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