EXHIBIT A
STOCKHOLDER VOTING AGREEMENT
BY AND AMONG
NESTLE HOLDINGS, INC.,
T. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
individually and as Co-Trustees of the ▇▇▇▇▇▇ Revocable Trust,
and as Co-Trustees of the Four ▇▇▇▇▇▇ Trust,
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III,
▇▇▇▇▇ ▇. ▇▇▇▇▇,
individually and as Co-Trustees of the ▇▇▇▇▇ Revocable Trust,
Dated as of June 16, 2002
STOCKHOLDER VOTING AGREEMENT
This STOCKHOLDER VOTING AGREEMENT (this "AGREEMENT") is entered into as of June
16, 2002, by and among Nestle Holdings, Inc., a Delaware corporation ("NESTLE"),
T. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as Co-Trustees of the
▇▇▇▇▇▇ Revocable Trust and the Four ▇▇▇▇▇▇ Trust, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III and
▇▇▇▇▇ ▇. ▇▇▇▇▇, individually and as Co-Trustees of the ▇▇▇▇▇ Revocable Trust
(collectively, the "STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, as of the date hereof, each Stockholder has voting power or
power to direct the voting of the number of shares of common stock, par value
$1.00 per share (the "COMMON STOCK"), of Dreyer's, a Delaware corporation
("DREYER'S"), set forth opposite such Stockholder's name on Schedule I hereto,
as such shares may be adjusted by stock dividend, stock split, recapitalization,
combination, merger, consolidation, reorganization or other change in the
capital structure of Dreyer's affecting the Common Stock (such shares of Common
Stock, together with any other shares of Common Stock the voting power over
which is acquired by any Stockholder during the period from and including the
date hereof through and including the date on which this Agreement is terminated
in accordance with its terms, are collectively referred to herein as the
"SUBJECT SHARES");
WHEREAS, Nestle, NICC Holdings, Inc., a Delaware corporation and wholly
owned subsidiary of Nestle ("CONTRIBUTING SUBSIDIARY"), Dreyer's, New Dreyer's,
Inc., a Delaware corporation and wholly-owned subsidiary of Dreyer's ("NEW
DREYER'S"), and December Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of New Dreyer's ("MERGER SUB") propose to enter into an
Agreement and Plan of Merger and Contribution, dated as of the date hereof (the
"MERGER AGREEMENT"), pursuant to which (i) Nestle will cause Contributing
Subsidiary to, and Contributing Subsidiary will, contribute to New Dreyer's all
of the equity interests of Nestle Ice Cream Company, LLC, a Delaware limited
liability company ("NICC") and wholly-owned subsidiary of Contributing
Subsidiary with NICC becoming a wholly-owned subsidiary of New Dreyer's, (ii)
Nestle will contribute the shares of common stock of Dreyer's owned by it to New
Dreyer's in exchange for shares of New Dreyer's, and (iii) Merger Sub will merge
with and into Dreyer's, with Dreyer's as the surviving corporation in the Merger
becoming a wholly-owned subsidiary of New Dreyer's (the "MERGER");
WHEREAS, as a condition to and inducement to Nestle's and Contributing
Subsidiary's willingness to enter into the Merger Agreement, and in
consideration therefor, each Stockholder is executing this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 CAPITALIZED TERMS. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Merger Agreement.
SECTION 1.2 OTHER DEFINITIONS. For purposes of this Agreement:
(a) "AFFILIATE" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such Person. For purposes of this
Agreement, with respect to each Stockholder, the term "Affiliate" shall not
include Dreyer's and the Persons that directly, or indirectly through one or
more intermediaries, are controlled by Dreyer's.
(b) "PERSON" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group.
(c) "REPRESENTATIVE" means, with respect to any particular Person, any
director, officer, employee, accountant, consultant, legal counsel, investment
banker, advisor, agent or other representatives of such Person.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
SECTION 2.1 AGREEMENT TO VOTE THE SUBJECT SHARES. Each Stockholder, in
its capacity as such, hereby agrees that, during the period commencing on the
date hereof and continuing until the termination of this Agreement (such period,
the "VOTING PERIOD"), at any meeting (or any adjournment or postponement
thereof) of Dreyer's stockholders, however called, such Stockholder shall be
present at such meeting and shall vote (or cause to be voted) its Subject Shares
(x) in favor of the approval and adoption of the Merger Agreement, the Merger
and the transactions contemplated thereby (and any actions required in
furtherance thereof), (y) against any action, proposal, transaction or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Dreyer's contained in the
Merger Agreement or of any Stockholder contained in this Agreement, and (z)
except with the written consent of Nestle, against the following actions or
proposals (other than the transactions contemplated by the Merger Agreement):
(i) any Business Combination Proposal; and (ii) (A) any change in the Persons
who constitute the board of directors of Dreyer's that is not approved in
advance by at least a majority of the persons who were directors of Dreyer's as
of the date of this Agreement (or their successors who were so approved); (B)
any material change in the capitalization of Dreyer's or any amendment of
Dreyer's certificate of incorporation or bylaws; (C) any other material change
in Dreyer's corporate structure or business; or (D) any other action or proposal
involving Dreyer's or any of its subsidiaries that is intended, or could
reasonably be expected, to prevent, impede, interfere with, delay, postpone or
adversely affect the transactions contemplated by the Merger Agreement;
PROVIDED, HOWEVER, that nothing in this Agreement shall limit or affect any
signatory hereto solely in his capacity as a member of the board of directors or
officer of Dreyer's;
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PROVIDED, FURTHER, that nothing in this Agreement shall be interpreted as
obligating the Stockholders to exercise any options to acquire shares of Common
Stock. Any such vote shall be cast or consent shall be given in accordance with
such procedures relating thereto so as to ensure that it is duly counted for
purposes of determining that a quorum is present and for purposes of recording
the results of such vote or consent. Each Stockholder agrees not to enter into
any agreement or commitment with any Person the effect of which would be
inconsistent with or violative of the provisions and agreements contained in
this Agreement or the Merger Agreement.
SECTION 2.2 GRANT OF IRREVOCABLE PROXY. Each Stockholder hereby appoints
Nestle and any designee of Nestle, and each of them individually, as such
Stockholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the Voting Period with
respect to the Subject Shares in accordance with Section 2.1. This proxy is
given to secure the performance of the duties of each Stockholder under this
Agreement. The Stockholders shall promptly cause a copy of this Agreement to be
deposited with Dreyer's at its principal place of business. Each Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
SECTION 2.3 NATURE OF IRREVOCABLE PROXY. The proxy and power of attorney
granted pursuant to Section 2.2 by each Stockholder shall be irrevocable during
the term of this Agreement, shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy and shall revoke any and all
prior proxies granted by such Stockholder. The power of attorney granted by each
Stockholder herein is a durable power of attorney and shall survive the
dissolution, bankruptcy, death or incapacity of such Stockholder. The proxy and
power of attorney granted hereunder shall terminate upon the termination of this
Agreement.
ARTICLE III
COVENANTS
SECTION 3.1 GENERALLY. (a) Except for pledges in existence as of the
date hereof, each stockholder agrees that during the Voting Period, except as
contemplated by the terms of this Agreement, it shall not (i) sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of (collectively, a
"TRANSFER"), or enter into any contract, option or other agreement with respect
to, or consent to, a Transfer of, any or all of the Subject Shares; or (ii) take
any action that would have the effect of preventing, impeding, interfering with
or adversely affecting its ability to perform its obligations under this
Agreement.
(b) In the event of a stock dividend or distribution, or any change in
the Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term "Subject
Shares" shall be deemed to refer to and include the Subject Shares as well as
all such stock dividends and distributions and any securities into which or for
which any or all of the Subject Shares may be changed or exchanged or which are
received in such transaction.
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SECTION 3.2 STANDSTILL OBLIGATIONS OF STOCKHOLDERS. Each Stockholder,
jointly and severally, covenants and agrees with Nestle that, during the Voting
Period:
(a) Such Stockholder shall not, nor shall such Stockholder permit any
controlled Affiliate of such Stockholder to, nor shall such Stockholder act in
concert with or permit any controlled Affiliate to act in concert with any
Person to make, or in any manner participate in, directly or indirectly, a
"solicitation" of "proxies" (as such terms are used in the rules of the
Securities and Exchange Commission) or powers of attorney or similar rights to
vote, or seek to advise or influence any Person with respect to the voting of,
any shares of Common Stock in connection with any vote or other action on any
matter related to a Business Combination, other than to recommend that
stockholders of Dreyer's vote in favor of the approval and adoption of the
Merger Agreement, the Merger and the transactions contemplated thereby and
otherwise as expressly provided by Article II of this Agreement.
(b) Such Stockholder shall not, nor shall such Stockholder permit any
controlled Affiliate of such Stockholder to, nor shall such Stockholder act in
concert with or permit any controlled Affiliate to act in concert with any
Person to, deposit any shares of Common Stock in a voting trust or subject any
shares of Common Stock to any arrangement or agreement with any Person with
respect to the voting of such shares of Common Stock, except as provided by
Article II of this Agreement.
(c) Such Stockholder shall not, and shall cause its Representatives not
to, directly or indirectly, through any officer, director, agent or otherwise,
nor shall such Stockholder permit any controlled Affiliate of such Stockholder
to, take any action or in contravention or which could reasonably be deemed to
be in contravention of the terms and provisions set forth in Section 5.9 of the
Merger Agreement. Such Shareholder agrees that it will, and shall cause its
Representatives and controlled Affiliates to, take all actions in support of and
in furtherance of the terms and provisions set forth in Section 5.9 of the
Merger Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby represents and warrants, jointly and severally,
to Nestle as follows:
SECTION 4.1 AUTHORIZATION. The execution, delivery and performance by
each Stockholder of this Agreement are within the powers of each Stockholder
and, if Stockholder is an entity, such execution, delivery and performance have
been duly authorized by all necessary action of such entity and the individual
signing this Agreement on behalf of such Stockholder represents he or she is
authorized to bind the entity thereby. This Agreement constitutes a valid and
binding Agreement of each Stockholder, enforceable in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the rights of creditors generally
and the effect of general principles of equity.
SECTION 4.2 OWNERSHIP OF SHARES. Schedule I sets forth, opposite each
Stockholder's name, the number of shares of Common Stock over which such
Stockholder has record and voting power as of the date hereof. As of the date
hereof, each Stockholder is the lawful owner
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of the shares of Common Stock denoted as being owned by such Stockholder on
Schedule I and has the sole power to vote (or cause to be voted) such shares of
Common Stock. Except as set forth on such Schedule I, no Stockholder nor any
Affiliate of a Stockholder owns or holds any right to acquire any additional
shares of any class of capital stock of Dreyer's or other securities of Dreyer's
or any interest therein or any voting rights with respect to any securities of
Dreyer's. Each Stockholder has not granted any proxies or entered into any
voting agreement and has good and valid title to the Common Stock denoted as
being owned by such Stockholder on Schedule I, free and clear of any and all
pledges, mortgages, liens, charges, encumbrances, adverse claims, options,
security interests and demands of any nature or kind whatsoever.
SECTION 4.3 NO CONFLICTS. (i) No filing with any governmental authority,
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by any Stockholder and (ii) none of the
execution and delivery of this Agreement by the Stockholders or compliance by
any Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of the organizational documents of any Stockholder, (B)
result in, or give rise to, a violation or breach of or a default under any of
the terms of any material contract, understanding, agreement or other instrument
or obligation to which any Stockholder is a party or by which any Stockholder or
any of its Subject Shares or assets may be bound, or (C) violate any applicable
order, writ, injunction, decree, judgment, statute, rule or regulation, except
for any of the foregoing as could not reasonably be expected to impair any
Stockholder's ability to perform its obligations under this Agreement.
SECTION 4.4 RELIANCE BY NESTLE. Each Stockholder understands and
acknowledges that Nestle is entering into the Merger Agreement in reliance upon
the execution and delivery of this Agreement by such Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NESTLE
Nestle hereby represents and warrants to the Stockholders as follows:
SECTION 5.1 AUTHORIZATION. Nestle is a company duly organized and
validly existing under the laws of the jurisdiction of its incorporation. Nestle
has all necessary corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement by Nestle have been duly
authorized by all necessary action on the part of Nestle.
SECTION 5.2 NO CONFLICTS. (i) No filing with any governmental authority,
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by Nestle and (ii) none of the execution and
delivery of this Agreement by Nestle shall (A) conflict with or result in any
breach of the organizational documents of Nestle, (B) result in, or give rise
to, a violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to which
Nestle is a party or by which Nestle or any of its assets may be bound, or (C)
violate any applicable order, writ, injunction, decree, judgment, statute, rule
or regulation, except for any of the foregoing as could not reasonably be
expected to impair Nestle's ability to perform its obligations under this
Agreement.
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SECTION 5.3 RELIANCE BY THE STOCKHOLDERS. Nestle understands and
acknowledges that the Stockholders are entering into this Agreement in reliance
upon the execution and delivery of the Merger Agreement by Nestle.
ARTICLE VI
TERMINATION
SECTION 6.1 TERMINATION. This Agreement shall terminate, and none of
Nestle or any Stockholder shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no effect upon the earliest
to occur of (i) the mutual consent of Nestle and the Stockholders, (ii) the date
following the conclusion of the Dreyer's Stockholders Meeting (after any
adjournments or postponements thereof) and (iii) the date of termination of the
Merger Agreement in accordance with its terms, PROVIDED, HOWEVER, that
termination of this Agreement shall not prevent any party hereunder from seeking
any remedies (at law or in equity) against any other party hereto for such
party's breach of any of the terms of this Agreement. Notwithstanding the
foregoing, (i) Sections 7.1, 7.6, 7.7, 7.8, 7.16, and 7.17 of this Agreement
shall survive the termination of this Agreement and (ii) if the Required
Dreyer's Vote is obtained at the Dreyer's Stockholders Meeting, then the
covenant set forth in Section 3.1(a) shall survive until the earlier to occur of
the Effective Time or the date of termination of the Merger Agreement in
accordance with its terms.
SECTION 6.2 RIGHT OF FIRST REFUSAL AGREEMENTS. The parties hereto
acknowledge and agree that the Right of First Refusal Agreement, by and between
T. ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as Co-Trustees of the
▇▇▇▇▇▇ Revocable Trust and Nestle Holdings, Inc., dated as of June 14, 1994, the
Agreement regarding Right of First Refusal, among Nestle Holdings, Inc., Bank of
America National Trust and Savings Association and T. ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, individually and as Co-Trustees of the ▇▇▇▇▇▇ Revocable Trust and as
Co-Trustees of the Four ▇▇▇▇▇▇ Trust, dated as of June 14, 1994, the Right of
First Refusal Agreement, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, and ▇▇▇▇▇ ▇.
▇▇▇▇▇, individually and as Co-Trustees of the ▇▇▇▇▇ Revocable Trust and Nestle
Holdings, Inc., dated as of June 14, 1994, and the Agreement Regarding Right of
First Refusal, among Nestle Holdings, Inc., Bank of America National Trust and
Savings Association and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III and ▇▇▇▇▇ ▇. ▇▇▇▇▇, individually
and as Co-Trustees of the ▇▇▇▇▇ Revocable Trust, dated as of June 14, 1994 (the
"ROFR AGREEMENTS") shall be terminated, so long as there has been no breach of
the ROFR Agreements, as of the Effective Time. The ROFR Agreements shall remain
in full force and effect between the date hereof and the Effective Time and, in
the event that the Effective Time does not occur for any reason, the ROFR
Agreements shall continue to remain in effect in all respects in accordance with
their terms.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 APPRAISAL RIGHTS. Each Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger that it may have under
applicable law.
SECTION 7.2 PUBLICATION. Each Stockholder hereby permits Nestle to
publish and disclose in the Dreyer's Proxy Statement and the Dreyer's
Registration Statement (including all
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documents and schedules filed with the Securities and Exchange Commission) its
identity and ownership of shares of Common Stock and the nature of its
commitments, arrangements and understandings pursuant to this Agreement;
provided, however, that such publication and disclosure is subject in all cases
to the prior review and comment by the Stockholders.
SECTION 7.3 HSR REQUIREMENTS. Each Stockholder agrees promptly to make
all necessary filings, if any, and thereafter make any other required
submissions, if any, with respect to the Merger Agreement, the Merger and the
transactions contemplated by the Merger Agreement required under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, any antitrust
and competition laws of any other applicable jurisdiction and any other
applicable law. Each Stockholder shall cooperate with Nestle in connection with
the making of any such filings referenced in the preceding sentence, including
providing copies of all such documents to Nestle and its advisors prior to
filing and, if requested, to accept all reasonable additions, deletions or
changes suggested in connection therewith.
SECTION 7.4 FURTHER ACTIONS. Each of the parties hereto agrees that it
will use its reasonable best efforts to do all things necessary to effectuate
this Agreement.
SECTION 7.5 FEES AND EXPENSES. Each of the parties shall be responsible
for its own fees and expenses (including, without limitation, the fees and
expenses of financial consultants, investment bankers, accountants and counsel)
in connection with the entering into of this Agreement and the consummation of
the transactions contemplated hereby and by the Merger Agreement.
SECTION 7.6 AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified, except upon the execution
and delivery of a written agreement executed by each of the parties hereto. The
failure of any party hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
SECTION 7.7 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof in
addition to any other remedies at law or in equity.
SECTION 7.8 PUBLIC ANNOUNCEMENTS. Subject to its respective legal
obligations (including requirements of stock exchanges and other similar
regulatory bodies), each Stockholder agrees to consult with Nestle before
issuing, or permitting any agent or Affiliate to issue, and provide Nestle with
the opportunity to review and make reasonable comment upon, any press releases
or otherwise making or permitting any agent or Affiliate to make, any public
statements with respect to the Merger Agreement or this Agreement and the
transactions contemplated thereby and hereby and, except as may be required by
applicable Law, will not issue any such press release or make any such public
statement prior to such consultation.
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SECTION 7.9 NOTICES. Any notices or other communications required or
permitted under, or otherwise in connection with this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in person or
upon confirmation of receipt when transmitted by facsimile transmission (with
confirmation) or on receipt after dispatch by registered or certified mail,
postage prepaid, addressed, or on the next Business Day if transmitted by
national overnight courier, in each case as follows:
If to Nestle, addressed to it at:
Nestle Holdings, Inc.
c/o Nestle USA, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
If to any Stockholder, addressed as per the Stockholder's address on
Schedule I.
SECTION 7.10 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 7.11 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 7.12 ENTIRE AGREEMENT. This Agreement (together with the Merger
Agreement, to the extent referred to herein) constitutes the entire agreement of
the parties and supersedes all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
SECTION 7.13 ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of each of the
parties, except that Nestle may assign and transfer its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Nestle.
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SECTION 7.14 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and their respective
successors and assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
SECTION 7.15 MUTUAL DRAFTING. Each party hereto has participated in the
drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
SECTION 7.16 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF TRIAL BY
JURY.
(a) This Agreement and the transactions contemplated hereby, and all
disputes between the parties under or related to the Agreement or the facts and
circumstances leading to its execution, whether in contract, tort or otherwise,
shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to the application of Delaware principles of conflicts
of laws.
Each of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of any Delaware State
court, or Federal court of the United States of America, sitting in Delaware,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the agreements delivered in connection
herewith or the transactions contemplated hereby or thereby or for recognition
or enforcement of any judgment relating thereto, and each of the parties hereby
irrevocably and unconditionally (i) agrees not to commence any such action or
proceeding except in such courts, (ii) agrees that any claim in respect of any
such action or proceeding may be heard and determined in such Delaware State
court or, to the extent permitted by law, in such Federal court, (iii) waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such action or
proceeding in any such Delaware State or Federal court, (iv) waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such Delaware State or Federal
court, and (v) hereby appoints RLF Service Corp., One ▇▇▇▇▇▇ Square, P. O. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as agent for service of process in Delaware.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 7.10. Nothing in this Agreement shall affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
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OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES
SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 7.16(b).
SECTION 7.17 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
* * * * *
-10-
IN WITNESS WHEREOF, Nestle and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NESTLE HOLDINGS, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
/s/ T. ▇▇▇▇ ▇▇▇▇▇▇
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T. ▇▇▇▇ ▇▇▇▇▇▇, individually and as Co-Trustee
of the ▇▇▇▇▇▇ Revocable Trust and as
Co-Trustee of the Four ▇▇▇▇▇▇ Trust
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as
Co-Trustee of the ▇▇▇▇▇▇ Revocable Trust and
as Co-Trustee of the Four ▇▇▇▇▇▇ Trust
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, individually and as
Co-Trustee of the ▇▇▇▇▇ Revocable Trust
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇ . ▇▇▇▇▇, individually and as
Co-Trustee of the ▇▇▇▇▇ Revocable Trust
Schedule I
OWNERSHIP OF COMMON STOCK
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF
SHARES
T. ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 2,767,072
as Co-Trustees of the ▇▇▇▇▇▇ Revocable Trust and as
Co-Trustees of the Four ▇▇▇▇▇▇ Trust
c/o Dreyer's Grand Ice Cream, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III and ▇▇▇▇▇ ▇. ▇▇▇▇▇, 1,299,922
as Co-Trustees of the ▇▇▇▇▇ Revocable Trust
c/o Dreyer's Grand Ice Cream, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Each of ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ owns options to purchase 1,248,260 shares of
Common Stock. If any such options are exercised during the term of this
Agreement, such shares shall become "Subject Shares" for purposes of this
Agreement. In addition, as described in the Company's Proxy Statement dated
April 8, 2002, ▇▇. ▇▇▇▇▇▇ holds shares in a savings plan account as to which he
has no voting power.
