EXHIBIT 4.4
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CALL OPTION AGREEMENT
Dated as of October 23, 2002
by and between
DIAGEO MIDWEST B.V.
and
GENERAL ▇▇▇▇▇, INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS...........................................................3
ARTICLE II CALL OPTION..........................................................3
Section 2.1 Grant; Premium................................................3
Section 2.2 Exercise of Call Options; Call Option Price...................4
Section 2.3 Exercise Mechanics............................................4
Section 2.4 Rights Prior to Exercise......................................5
Section 2.5 Prohibition on Transfer of the Option Shares..................5
Section 2.6 Lock-up of Ordinary Shares....................................6
Section 2.7 Representations...............................................6
Section 2.8 Indemnity.....................................................7
ARTICLE III MISCELLANEOUS PROVISIONS............................................8
Section 3.1 Notices.......................................................8
Section 3.2 Binding Effect; No Third-Party Beneficiaries..................9
Section 3.3 Assignment....................................................9
Section 3.4 Governing Law.................................................9
Section 3.5 Payments and Deliveries.......................................9
Section 3.6 Specific Performance..........................................9
Section 3.7 Miscellaneous.................................................9
Section 3.8 Partial Invalidity............................................9
Section 3.9 Entire Agreement.............................................10
Section 3.10 Counterparts.................................................10
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CALL OPTION AGREEMENT
This
CALL OPTION AGREEMENT (this "Agreement") is dated as of October
23, 2002 and is between DIAGEO MIDWEST B.V., a company organized under the laws
of the Netherlands ("DMWBV"), and GENERAL ▇▇▇▇▇, INC., a Delaware corporation
(the "Issuer").
WITNESSETH:
WHEREAS, Diageo plc, a public limited company incorporated under the
laws of England and Wales ("Diageo"), entered into an Agreement and Plan of
Merger, dated as of July 16, 2000, as subsequently amended (as amended, the
"Merger Agreement"), with the Issuer, General ▇▇▇▇▇ North American Businesses,
Inc., a Delaware corporation and wholly-owned subsidiary of the Issuer, and The
Pillsbury Company, a Delaware corporation and indirect wholly owned subsidiary
of Diageo ("Pillsbury"), pursuant to which the Issuer acquired on October 31,
2001 the food business (other than the quick service restaurant business) of
Diageo and paid as part of the consideration ordinary shares of the Issuer, par
value $0.10 per share (the "Ordinary Shares");
WHEREAS, Diageo, Gramet Holdings Corp., an indirectly wholly owned
subsidiary of Diageo ("Gramet") and the Issuer also entered into a Stockholders
Agreement, dated October 31, 2001 (the "Stockholders Agreement");
WHEREAS, DMWBV, an indirect wholly owned subsidiary of Diageo, is the
record holder of 79,000,000 Ordinary Shares; and
WHEREAS, the Issuer wishes to acquire options to purchase an aggregate
of 26,183,088 Ordinary Shares (as defined in Annex I, the "Option Shares") from
DMWBV and DMWBV is willing to grant such options to the Issuer on the terms
specified herein.
NOW, THEREFORE, the parties, intending to be bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in Annex I to this Agreement.
ARTICLE II
CALL OPTION
Section 2.1 Grant; Premium.
(a) DMWBV hereby grants to the Issuer two irrevocable options to
purchase Ordinary Shares from DMWBV, the first of which (the "First Call
Option") shall cover 5,000,000 Ordinary Shares (the "First Option Shares") and
shall be exercisable within
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the First Effective Period (subject to Section 2.2(c)), and the second of which
(the "Second Option" and, together with the First Call Option, the "Call
Options") shall cover 21,183,088 Ordinary Shares (the "Second Option Shares")
and shall be exercisable within the Second Effective Period (the "Call Options")
in the circumstances and on the terms set forth below.
(b) The Call Options shall become effective against payment from the
Issuer to DMWBV on October 25, 2002 of a per Option Share premium of $3.07 (for
an aggregate premium in the amount of $80,382,080.16), payable by wire transfer
of immediately available funds to the account of DMWBV set forth in Schedule B
hereto.
Section 2.2 Exercise of Call Options; Call Option Price.
(a) The Call Options shall be exercisable in the manner described in
Section 2.3 hereof.
(b) The price payable by the Issuer for each Option Share upon the
exercise of the Call Options (the "Call Option Price") shall be $51.56.
(c) If at any time beginning on the date hereof and prior to the
Associate Accounting Exercise Date, the exercise of the First Call Option would
cause Diageo to beneficially hold less than 20% of the outstanding Ordinary
Shares, the First Call Option shall not be exercisable in any period other than
Second Call Option Period.
Section 2.3 Exercise Mechanics.
(a) Subject to Section 2.2(a) hereof, the Issuer may exercise the First
Call Option, in whole or in part (subject to the mandatory exercise requirement
during the period beginning September 29, 2005 and ending on October 28, 2005
described below), on any Business Day within the First Effective Period and may
exercise the Second Call Option, in whole or in part (subject to the mandatory
exercise requirement during the period beginning September 29, 2005 and ending
on October 28, 2005 described below), on any Business Day within the Second
Effective Period, by giving three Business Days' prior written notice (a "Call
Notice") of exercise in the form of Schedule A to this Agreement, which Call
Notice shall be irrevocable and in accordance with the requirements of Section
3.1 hereof, provided, however that (i) prior to September 29, 2005, the Issuer
may only exercise the Call Options in respect of a current obligation to issue
Ordinary Shares pursuant to the conversion of convertible debt securities issued
by the Issuer within 30 days of the date of this Agreement and (ii) the exercise
of either of the Call Options during the period beginning on September 29, 2005
to October 28, 2005 shall obligate the Issuer to purchase all Option Shares not
previously purchased. Each Call Notice will specify a date for settlement (a
"Settlement Date") which shall be three Business Days after the date of the Call
Notice, and the number of Option Shares to be delivered on such Settlement Date;
provided however, (i) there shall be no more than one Settlement Date in any 30
day period in respect of exercises of the Call Options prior to September 29,
2005 and (ii) the minimum number of Option Shares to be delivered with
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respect to a Call Notice exercised during the period beginning September 29,
2005 shall be for 25% of the remaining Option Shares, or in the case of Option
Shares delivered pursuant to the final Call Notice, all remaining Option Shares.
(b) On each Settlement Date:
(i) The Issuer shall pay DMWBV the Call Option Price in respect
of each Option Share to be delivered in United States dollars in
immediately available funds by wire transfer to the account of DMWBV
specified in writing to the Issuer two Business Days prior to the
relevant Settlement Date or, if not so specified, to the account of
DMWBV specified in Schedule B hereto; and
(ii) Upon and subject to receipt by DMWBV of such Call Option
Price, DMWBV shall deliver to the Issuer a certificate representing
the number of Option Shares to be delivered, together with a share
transfer form in respect of such Option Shares duly completed in favor
of the Issuer, an incumbency certificate with respect to the execution
and delivery of the share transfer form and such other share transfer
documentation as the Issuer and its transfer agent shall reasonably
request.
(c) DMWBV covenants and agrees that upon transfer of the Option Shares
to the Issuer pursuant to a Call Option and payment therefor as provided in this
Section 2.3(b), the Issuer shall receive the Option Shares free and clear of any
claims, pledges, liens, charges and encumbrances arising by, through or under
DMWBV or any Affiliate of DMWBV. For the avoidance of doubt, DMWBV assumes no
responsibility for effecting the transfer of the Option Shares on the books and
records of the Issuer, and DMWBV will be deemed to have satisfied in full its
obligations under this Agreement upon delivery to the Issuer of the certificate,
share transfer form and any other documentation as required by this Section
2.3(b).
Section 2.4 Rights Prior to Exercise. For the avoidance of doubt, the
Issuer hereby acknowledges that DMWBV shall have, until such time, if any, as
DMWBV consummates the sale of the Option Shares as provided in Section 2.3 or
otherwise sells or transfers such Option Shares, all voting rights assigned to
such Option Shares, all rights to Dividends when, as and if declared with
respect to such Option Shares, and all other rights with respect to such Option
Shares, including any rights that Diageo or any of its Affiliates may have with
respect to such Option Shares under the Merger Agreement and the Stockholders
Agreement (which include, without limitation, the right to receive a contingent
price adjustment with respect to such Option Shares pursuant to Section 2.13 of
the Merger Agreement), and that DMWBV will remain the registered holder and
beneficial owner of such Option Shares.
Section 2.5 Prohibition on Transfer of the Option Shares. DMWBV shall
not transfer, sell, pledge, hypothecate, gift or place in trust (voting or
otherwise) or transfer by operation of law (other than by way of a transfer to,
or merger into, a directly or indirectly wholly owned subsidiary of Diageo),
create a security interest in or a lien on,
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or in any other way encumber or dispose (directly or indirectly), any Option
Shares from the date of this Agreement up to and including the final date of the
Effective Period, provided, however that nothing in this Section 2.5 shall
prohibit Diageo from tendering the Option Shares into or otherwise participating
in a Merger Event to the extent permitted by the Stockholders Agreement.
Section 2.6 Lock-up of Ordinary Shares. DMWBV hereby agrees that,
except as contemplated by this Agreement, it will not, without the prior written
consent of the Issuer (which consent may be withheld in its sole discretion),
directly or indirectly, sell, offer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") or otherwise
dispose of any Ordinary Shares currently owned either of record or beneficially
(as defined in Rule 13d-3 under the Exchange Act) by DMWBV for a period
commencing on the date hereof and continuing through the close of trading on the
date 90 days after the date hereof. DMWBV also agrees and consents to the entry
of stop transfer instructions with the Issuer's transfer agent and registrar
against the transfer of such Ordinary Shares.
Section 2.7 Representations.
(a) Each party represents to the other party (which representations
will be deemed to be repeated by each party on each Settlement Date) that:
(i) It is duly organized and validly existing under the laws of
the jurisdiction of its organization or incorporation;
(ii) It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and has taken all
necessary action to authorize such execution, delivery and
performance;
(iii) Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its
constitutional documents, any order judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its
assets;
(iv) All governmental and other consents that are required to
have been obtained by it with respect to this Agreement have been
complied with;
(v) Its obligations under this Agreement constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws
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affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and as rights to indemnity hereunder may be limited by
United States federal and state securities laws); and
(vi) There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body,
agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against it of this Agreement or
its ability to perform its obligations under this Agreement.
(b) In addition, the Issuer represents to each of Diageo and DMWBV that
this Agreement and all transactions involving the Option Shares contemplated in
connection therewith have been approved by the Issuer's board of directors for
the purpose of applicable laws, including, without limitation, exemption from
Section 16 under the Securities Exchange Act of 1934.
Section 2.8 Indemnity.
(a) In the event that DMWBV, Diageo or any of their Affiliates becomes
involved in any capacity in any action, proceeding or investigation brought by
or against any person, including holders of securities of the Issuer, in
connection with or as a result of any matter related to this Agreement or the
offering and sale of any securities that may be convertible into the Option
Shares, the Issuer periodically will reimburse DMWBV or Diageo for its legal and
other expenses (including the cost of any investigation and preparation)
incurred in connection therewith. Any such reimbursement made in respect of a
direct action by the Issuer against DMWBV or Diageo to enforce this Agreement or
for breach of this Agreement shall be repaid to the Issuer by DMWBV or Diageo if
it is determined that DMWBV breached its obligations under this Agreement. The
Issuer also will indemnify and hold DMWBV and Diageo harmless against any and
all losses, claims, damages or liabilities ("Losses") to any such person in
connection with or as a result of any matter referred to in this Agreement or
the offering and sale of any securities that may be convertible into the Option
Shares. Such indemnity shall not apply in respect of a direct action by the
Issuer against DMWBV or Diageo to the extent it is determined that such Losses
resulted from DMWBV's breach of its obligations under this Agreement. The
reimbursement and indemnity obligations of the Issuer under this Section 2.6
shall be in addition to any liability which the Issuer may otherwise have and
shall extend upon the same terms and conditions to any Affiliate of DMWBV or
Diageo and the directors, agents, employees and controlling persons (if any), as
the case may be, of DMWBV or Diageo and any such Affiliate, and shall be binding
upon and inure to the benefit of any successors, assigns, heirs and personal
representative of the Issuer, DMWBV, Diageo, any such Affiliate and any such
person. The Issuer also agrees that neither DMWBV, Diageo nor any of such
Affiliates, directors, agents, employees or controlling persons shall have any
liability to the Issuer or any person asserting claims on behalf of or in right
of the Issuer in connection with or as a result any matter referred to
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in this Agreement or the offering and sale of any securities that may be
convertible into the Option Shares except to the extent that any Losses or
expenses incurred by the Issuer resulted from DMWBV's breach of its obligations
under this Agreement.
(b) The provisions of this Section 2.6 shall survive the last
Settlement Date or any termination of this Agreement.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1 Notices. All notices pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given when delivered by hand, when
delivered personally or by courier, three days after being deposited in the U.S.
mail (registered or certified mail, postage prepaid, return receipt requested),
or when received by facsimile transmission if promptly confirmed by telephone,
as follows:
If to DMWBV:
Diageo Midwest B.V.
▇▇▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: The Board of Directors
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
with copies to:
Diageo plc
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: General Counsel
Fax: ▇▇▇-▇▇▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇) ▇▇▇▇-▇▇▇▇
If to the Issuer:
General ▇▇▇▇▇, Inc.
Number ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ & Whitney
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Section 3.2 Binding Effect; No Third-Party Beneficiaries. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective successors, legal representatives and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto, and their respective successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 3.3 Assignment. Neither party may assign or transfer its rights
and/or its obligations hereunder without the prior written consent of the other
party and any attempted assignment or transfer without such consent shall be
void.
Section 3.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
Section 3.5 Payments and Deliveries. If any payment or delivery
pursuant to this Agreement is to be made on any date that is not a Business Day,
such payment or delivery shall be made on the first following date that is a
Business Day and shall not be deemed to be delayed. All payments under this
Agreement shall be made without any deduction or withholding for or on account
of any taxes.
Section 3.6 Specific Performance. DMWBV acknowledges that the Issuer
will have no adequate remedy at law if DMWBV fails to perform its obligation
under this Agreement to deliver the Option Shares upon and subject to receipt by
DMWBV of the full amount of the Call Option Price in accordance with Section
2.3(b). DMWBV agrees that, in such event, to the fullest extent permitted by
law, (i) the Issuer shall have the right, in addition to any other rights it may
have, to specific performance of such obligation and (ii) it will not take any
action to impede the Issuer's efforts to enforce such right of specific
performance.
Section 3.7 Miscellaneous. Each party acknowledges that, in entering
into this Agreement to which it is a party, it is relying upon the advice of its
own advisers and that no party makes any representations, express or implied, as
to the treatment for accounting, legal or tax purposes of the transactions
contemplated by this Agreement.
Section 3.8 Partial Invalidity. If, at any time, any provision hereof
is or becomes illegal, invalid or unenforceable in any respect under the law of
any jurisdiction,
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neither the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision under the
law of any other jurisdiction shall in any way be affected or impaired thereby.
Section 3.9 Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the matters covered hereby and
supersede and extinguish any prior drafts, agreements, undertakings,
representations, warranties and arrangements of any nature whatsoever, whether
or not in writing, relating thereto. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
Section 3.10 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have hereunto signed their names in the
space provided below.
DIAGEO MIDWEST B.V.
By:
-----------------------------------
Name:
Title:
GENERAL ▇▇▇▇▇, INC.
By:
-----------------------------------
Name:
Title:
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ANNEX I
DEFINITIONS
"Adjustment Event" means any of the following: (i) a subdivision, combination or
reclassification of the Ordinary Shares (unless a Merger Event), or a free
distribution or dividend of any such Ordinary Shares to existing holders by way
of bonus, capitalization or similar issue; (ii) a distribution or dividend to
existing holders of the Ordinary Shares of (A) such Ordinary Shares, or (B)
other share capital or securities granting the right to payment of dividends
and/or the proceeds of liquidation of the Issuer equally or proportionately with
such payments to holders of such Ordinary Shares, or (C) any other type of
securities, rights or warrants or other assets, in any case for payment (cash or
other) at less than the prevailing market price; or (iii) an extraordinary
dividend; provided that no event will be considered an "Adjustment Event" unless
such event has been consummated or completed prior to the relevant Settlement
Date.
"Affiliate" means in relation to any person, any entity controlled, directly or
indirectly, by the person, any entity that controls, directly or indirectly, the
person or any entity directly or indirectly under common control with the
person. For this purpose, "control" of any entity or person means ownership of a
majority of the voting power of the entity or person.
"Agreement" means this
Call Option Agreement.
"Associate Accounting Exercise Date" means the date that Diageo (i) determines
in consultation with its independent public auditors that it is no longer able
to account for its equity interest in the Issuer as an associate based on its
investment in Ordinary Shares, including Option Shares or (ii) elects not to
account for its equity investment in the Issuer as an associate.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which the commercial banks in
New York City, Amsterdam or London are authorized
or required by law to remain closed.
"Call Notice" has the meaning specified in Section 2.3 of this Agreement.
"Call Options" has the meaning specified in Section 2.1 of this Agreement.
"Call Option Price" has the meaning specified in Section 2.2 of this Agreement.
"CVR Exercise Date" means (i) May 1, 2003 in the event Diageo receives no
payment in relation to the CVR or (ii) November 1, 2003, in the event that
Diageo receives payment in relation to the CVR.
"CVR" means the contingent value right granted under the Merger Agreement.
"Dividends" means all dividends paid by the Issuer on the Ordinary Shares,
except dividends paid pursuant to an Adjustment Event or a Merger Event.
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"DMWBV" has the meaning specified in the recitals to this Agreement.
"First Call Option" has the meaning specified in Section 2.1 of this Agreement.
"First Effective Period" means the period beginning on the CVR Exercise Date and
ending on October 28, 2005.
"First Option Shares" has the meaning specified in Section 2.1 of this
Agreement.
"Insolvency" means that, by reason of the voluntary liquidation, bankruptcy or
insolvency of or an analogous proceeding affecting the Issuer, (i) all the
Ordinary Shares are required to be transferred to a trustee, liquidator or other
similar official or (ii) holders of the Ordinary Shares become legally
prohibited from transferring them.
"Issuer" has the meaning specified in the recitals to this Agreement.
"Merger Agreement" has the meaning specified in the recitals to this Agreement.
"Merger Event" means (i) any consolidation, amalgamation, binding share exchange
or merger of the Issuer with or into another entity (other than the
consolidation, amalgamation, binding share exchange or merger in which the
Issuer is the continuing corporation and which does not result in
reclassification or change of the Issuer's securities); (ii) any other takeover
offer for the Ordinary Shares that results in a transfer of or an irrevocable
commitment to transfer all such Ordinary Shares; or (iii) any reclassification
or change of the Ordinary Shares that results in a transfer of or an irrevocable
commitment to transfer all the Ordinary Shares; provided that no event shall
constitute a Merger Event unless such event has been consummated or completed
prior to the relevant Settlement Date.
"Option Shares" means the First Option Shares and the Second Option Shares,
provided that if an Adjustment Event, a Merger Event or Insolvency has been
consummated or completed after the date hereof but prior to the relevant
Settlement Date, Option Shares shall mean instead of or in addition to such
Ordinary Shares (i) the number of Ordinary Shares received by DMWBV in respect
of the Option Shares and/or any cash, securities or other property or assets
received by DMWBV in respect of such Option Shares upon the consummation or
completion of an Adjustment Event; (ii) the kind and amount of securities and
other property or assets received by DMWBV in respect of the Option Shares upon
or in connection with the consummation or completion of a Merger Event; and
(iii) any cash or other property or assets distributed in respect of the Option
Shares upon the Insolvency of the Issuer.
"Ordinary Shares" has the meaning assigned in the recitals to this Agreement.
"Second Call Option" has the meaning specified in Section 2.1 of this Agreement.
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"Second Effective Period" means the period beginning on the earlier of the (i)
Associate Accounting Exercise Date and (ii) September 29, 2005 and ending on
October 28, 2005. In no event shall the Second Effective Period begin prior to
the CVR Exercise Date.
"Second Option Shares" has the meaning specified in Section 2.1 of this
Agreement.
"Settlement Date" has the meaning specified in Section 2.3 of this Agreement.
"Stockholders Agreement" has the meaning specified in the recitals to this
Agreement.
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Schedule A
FORM OF NOTICE OF EXERCISE OF CALL OPTION(1)
[LETTERHEAD OF GENERAL ▇▇▇▇▇]
[DATE]
Diageo Midwest B.V.
Re: Notice of Exercise of the [First/Second] Call Option pursuant
to the
Call Option Agreement dated as of October 23, 2002, as amended
from time to time (the "
Call Option Agreement") between DIAGEO MIDWEST
B.V. and GENERAL ▇▇▇▇▇, INC.
Ladies and Gentlemen:
This notice is being sent to you pursuant to Section 2.3(a) of the
Call
Option Agreement. This is to advise you of our exercise of the [First/Second]
Call Option. The number of Option Shares to be delivered pursuant to this Call
Notice shall be [ ]. The Settlement Date shall occur on [ ](2) and payment
for such Option Shares will be made to [the account of Diageo Midwest B.V. set
forth in Schedule B to the
Call Option Agreement] [any new account information
provided in writing at least two Business Days prior to the Settlement Date.]
Very truly yours,
GENERAL ▇▇▇▇▇, INC.
By:
------------------------------------
Name:
Title:
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(1) In the case of exercise during the period beginning September 29, 2005 and
ending on October 28, 2005, this notice must be for a minimum of 25% of
Option Shares or for the balance of all remaining Option Shares to be
delivered in the case of the final call option. Once the initial Call
Notice is exercised in the period beginning September 29, 2005 and ending
on October 28, 2005, General ▇▇▇▇▇ is required to provide additional Call
Notices providing for the delivery of all remaining Option Shares.
(2) The Settlement Date must be three (3) Business Days after the date of the
Call Notice.
Schedule B
Account Information of DMWBV
Bank: Citibank N.A.,
New York
ABA: 021 00 00 89
Account: ▇▇▇▇▇▇▇▇
Account Name: Diageo Midwest B.V.
Swift Code: CITI US33
Reference: Project Legacy
