Exhibit 11
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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 ▇▇▇▇▇▇'▇ 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
▇. ▇▇▇▇▇▇▇ 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.
(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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
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
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
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
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.
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(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.
3.2.2 Authority.
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(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 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.
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.
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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 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.
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.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Senior Vice President and General Counsel
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to GE Capital:
General Electric Capital Corporation.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Shine, Esq.
If to GEIPPP or GE Pension:
c/o GE Asset Management Incorporated
GE Investments
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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:
----------------------------------------------
Name:
Title:
GENERAL ELECTRIC PENSION TRUST,
a New York common law trust,
By: GE ASSET MANAGEMENT INCORPORATED,
a Delaware corporation,
its investment manager
By:
-----------------------------------
Name:
Title:
GE INVESTMENT PRIVATE PLACEMENT PARTNERS I,
a Delaware limited partnership,
By: GE ASSET MANAGEMENT INCORPORATED,
a Delaware corporation,
its general partner
By:
-----------------------------------
Name:
Title:
BUYER:
NESTLE HOLDINGS, INC.,
a Delaware corporation
By:
---------------------------------
Name:
Title:
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 ▇▇▇▇▇▇'▇ 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:
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EXHIBIT B
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%[FN1] 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Improvements Act of 1976, as amended.
[FN]
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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.