EXHIBIT 2.1
SECOND AMENDMENT TO
ASSET PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO THE ASSET PURCHASE AND SALE AGREEMENT (this
"Second Amendment") is made as of July 30, 2001 by and among General Xxxxx,
Inc., a Delaware corporation ("General Xxxxx"), The Pillsbury Company, a
Delaware corporation ("Pillsbury" and, together with General Xxxxx, the
"Sellers" and each, a "Seller"), and International Multifoods Corporation, a
Delaware corporation ("Buyer"). Unless otherwise specified, capitalized terms
herein shall have the meaning ascribed to them in the First Amended Asset Sale
Agreement (as herein defined).
WITNESSETH:
WHEREAS, Sellers and Buyer are the parties to that certain Asset
Purchase and Sale Agreement, dated as of February 4, 2001 (the "Original Asset
Sale Agreement");
WHEREAS, Sellers and Buyer are the parties to that certain First
Amendment to the Original Asset Sale Agreement, dated as of April 26, 2001 (the
"First Amendment");
WHEREAS, the Original Asset Sale Agreement as amended by the First
Amendment shall hereinafter be referred to as the "First Amended Asset Sale
Agreement"; and
WHEREAS, the parties to the First Amended Asset Sale Agreement
desire to amend the First Amended Asset Sale Agreement as set forth in this
Second Amendment;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Second Amendment, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. AMENDMENT OF TERMINATION PROVISIONS. Section 10.1(e) of the First
Amended Asset Sale Agreement is hereby replaced in its entirety with the
following:
"(e) by either Seller or Buyer if the Closing does not occur
on or prior to September 28, 2001;"
2. COUNTERPARTS; EFFECTIVENESS. This Second Amendment and any
amendments hereto may be executed by facsimile and 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 First Amended Asset Sale
Agreement shall remain in full force and effect. The First Amended Asset Sale
Agreement, as amended by this Second Amendment, shall be binding upon the
parties hereto and their successors and permitted assigns. This Second Amendment
shall be effective as of the date first written above.
3. GOVERNING LAW; JURISDICTION AND FORUM; WAIVER OF JURY TRIAL. (a)
This Second Amendment shall be governed by and construed in accordance with the
laws of the State of Minnesota applicable to agreements made and to be performed
entirely within such State, without regard to the choice of law principles
thereof.
(b) Sellers and Buyer hereby irrevocably consent to the exclusive
jurisdiction and venue of the Courts of the State of Minnesota and the United
States District Court for the District of Minnesota, in connection with any
action or proceeding arising out of or relating to this Second Amendment. Buyer
hereby irrevocably appoints Buyer's General Counsel as its authorized agent upon
whom process may be served in any such action or proceeding instituted in any
such court and waives any objections to personal jurisdiction with respect
thereto. Sellers hereby irrevocably appoint General Xxxxx' General Counsel as
their authorized agent (PROVIDED that until the Acquisition is consummated,
Pillsbury appoints its General Counsel as its authorized agent) upon whom
process may be served in any such action or proceeding instituted in any such
court and waives any objections to personal jurisdiction with respect thereto.
4. HEADINGS; DEFINITIONS. The section and article headings contained
in this Second Amendment are inserted for convenience of reference only and will
not affect the meaning or interpretation of this Second Amendment. All
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered as of the date first written above.
GENERAL XXXXX, INC.
By: /s/ X.X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President, Corporate Development
THE PILLSBURY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President and General Counsel
INTERNATIONAL MULTIFOODS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
