SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
EXHIBIT (j)
SECOND AMENDMENT TO
STOCKHOLDERS AGREEMENT
THIS SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT, dated as of June 23, 2004 (this “Amendment”), by and among General Xxxxx, Inc., a Delaware corporation (the “Company”), Diageo plc, a public limited company incorporated under the laws of England and Wales (“Parent”), and Diageo Atlantic Holding B.V., a private company with limited liability organized under the laws of The Netherlands and an indirect wholly owned subsidiary of Parent (“DAHBV” and, together with Parent, the “Shareholder Group”). Unless otherwise specified, capitalized terms used herein shall have the meanings ascribed to them in the Stockholders Agreement (as defined hereunder).
WHEREAS, the Company, Parent and Gramet Holdings Corp., a Delaware corporation and an indirect wholly owned subsidiary of Parent (“Gramet”) are the parties to that certain Stockholders Agreement, dated as of October 31, 2001 (the “Stockholders Agreement”);
WHEREAS, DAHBV holds the shares of Common Stock originally held by Gramet subject to the provisions of the Stockholders Agreement as successor in interest to Gramet; and
WHEREAS, the parties to the Stockholders Agreement desire to amend the Stockholders Agreement as set forth in this Amendment and to provide for such other agreements among the parties as set forth herein.
1. | Article I. Article I of the Stockholders Agreement is hereby amended as follows: |
(a) | The definition of Parent Board Member is hereby deleted. | |||
(b) | The definition of Parent Director is hereby deleted. | |||
(c) | The definition of Shareholder Group Directors is hereby deleted. |
2. | Article III. Article III of the Stockholders Agreement is hereby amended to delete the words “BOARD REPRESENTATION” from the title thereof, and is hereby further amended as follows: |
(a) | Section 3.1(e) is hereby replaced in its entirety with the following: |
(e) act, alone or in concert with others, to seek to affect or influence the control of the Board or the management of the Company, or the business, operations, affairs or policies of the Company;
(b) | Section 3.3 is hereby replaced in its entirety with the following: |
(c) | Section 3.4 is hereby replaced in its entirety with the following: |
Section 3.4 [RESERVED].
(d) | Section 3.5 is hereby replaced in its entirety with the following: |
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4. | Applicable Law; Consent to Jurisdiction. |
(a) This Amendment shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to principles of conflicts of law.
(b) In connection with any suit, claim, action or proceeding arising out of this Agreement, the parties each hereby consent to the in personam jurisdiction of the United States federal courts and state courts located in the State of Delaware; Parent and the Company each agree that service in the manner set forth in Section 8.4 of the Stockholders Agreement shall be valid and sufficient for all purposes; and the parties each agree to, and irrevocably waive any objection based on forum non conveniens or venue to, appear in any United States federal court or state court located in the State of Delaware.
GENERAL XXXXX, INC. | ||||
By: | /s/ XXXX X. XXXXXXXX | |||
Xxxx X. Xxxxxxxx | ||||
Senior Vice President, Corporate Affairs, General Counsel and Secretary | ||||
DIAGEO plc | ||||
By: | /s/ N.C. ROSE | |||
Name: | N.C. Rose | |||
Title: | Chief Financial Officer | |||
DIAGEO ATLANTIC HOLDING B.V. | ||||
By: | /s/ M.C.T.M GERICHHAUSEN | |||
Name: | M.C.T.M. Gerichhausen | |||
Title: | Director | |||
By: | /s/ X.X. XxXXXXX | |||
Name: | X.X. XxXxxxx | |||
Title: | Director |
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