-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Nq0e2AZioj2+E5DODYinO3Jz5kQJ+sgqaDCKEmwVl8L1YQkifNWZTtUs6THL1D9U 04101vOkeye6wmAI0urpsQ== 0001156973-04-000743.txt : 20040624 0001156973-04-000743.hdr.sgml : 20040624 20040624171246 ACCESSION NUMBER: 0001156973-04-000743 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040624 GROUP MEMBERS: DIAGEO HOLDINGS NETHERLANDS B.V. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MILLS INC CENTRAL INDEX KEY: 0000040704 STANDARD INDUSTRIAL CLASSIFICATION: GRAIN MILL PRODUCTS [2040] IRS NUMBER: 410274440 STATE OF INCORPORATION: DE FISCAL YEAR END: 0525 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-34820 FILM NUMBER: 04880141 BUSINESS ADDRESS: STREET 1: NUMBER ONE GENERAL MILLS BLVD CITY: MINNEAPOLIS STATE: MN ZIP: 55426 BUSINESS PHONE: (763) 764-7600 MAIL ADDRESS: STREET 1: P O BOX 1113 CITY: MINNEAPOLIS STATE: MN ZIP: 55440 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DIAGEO PLC CENTRAL INDEX KEY: 0000835403 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] IRS NUMBER: 000000000 FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 8 HENRIETTA PL STREET 2: LONDON W1G 0NB CITY: UNITED KINGDOM STATE: X0 ZIP: 00000 BUSINESS PHONE: 011442079275200 MAIL ADDRESS: STREET 1: 8 HENRIETTA PLACE STREET 2: LONDON W1G 0NB CITY: UNITED KINGDOM STATE: X0 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: GRAND METROPOLITAN PUBLIC LIMITED CO DATE OF NAME CHANGE: 19971218 SC 13D/A 1 u47604sc13dza.htm AMENDMENT NO. 3 TO SCHEDULE 13D sc13dza
 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

Amendment No. 3

General Mills, Inc.

(Name of Issuer)

Common Stock, $0.10

(Title of Class of Securities)

370334104

(CUSIP Number)

Timothy D. Proctor
Diageo plc
Group General Counsel
8 Henrietta Place
London W1G 0NB
+44-207-927-5200

(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)

Copy to:

Richard C. Morrissey
Sullivan & Cromwell LLP
1 New Fetter Lane
London EC4A 1AN
+44-207-959-8900

June 23, 2004

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

             
CUSIP No. 370334104
  1. Name of Reporting Person:
Diageo plc		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
N/A
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
England and Wales
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
79,000,000
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
79,000,000
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
79,000,000
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
20.8%
  14.Type of Reporting Person (See Instructions):
CO

 

             
CUSIP No. 370334104
  1. Name of Reporting Person:
Diageo Holdings Netherlands B.V.		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
N/A
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
The Netherlands
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
79,000,000
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
79,000,000
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
79,000,000
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
20.8%
  14.Type of Reporting Person (See Instructions):
HC, CO

 

     This Amendment No. 3 (“Amendment No. 3”) amends and supplements the Schedule 13D (“Schedule 13D”) of Diageo plc, a public limited company incorporated under the laws of England and Wales (“Diageo”), and Selviac Nederland B.V., a company organized under the laws of the Netherlands and an indirect wholly owned subsidiary of Diageo (“SNBV”), filed with the U.S. Securities and Exchange Commission (“SEC”) on November 13, 2001, as amended by Amendment No. 1 (“Amendment No. 1”) to the Schedule 13D of Diageo, Diageo Holdings Netherlands B.V., a company organized under the laws of the Netherlands and an indirect wholly owned subsidiary of Diageo (“Diageo Holdings Netherlands”), and Diageo Midwest B.V., a company organized under the laws of the Netherlands and an indirect wholly owned subsidiary of Diageo (“DMWBV”), filed with the SEC on October 23, 2002, and as further amended by Amendment No. 2 to the Schedule 13D of Diageo, Diageo Holdings Netherlands and DMWBV, filed with the SEC on October 28, 2002, with respect to the common stock of General Mills, Inc., a Delaware corporation (“General Mills”), beneficially owned by Diageo (the “Shares”).

Item 2. Identity and Background.

     Item 2 of the Schedule 13D is hereby amended and supplemented by deleting the second sentence of the first paragraph of Item 2, the fourth and fifth paragraphs of Item 2 and the second, third and fourth paragraphs added to Item 2 by Amendment No. 1 and by adding the following paragraphs at the end thereof:

     On June 23, 2004, DMWBV merged with and into Diageo Atlantic Holding B.V. (“DAHBV”), a company organized under the laws of the Netherlands and an indirect wholly owned subsidiary of Diageo, and the Shares were transferred to DAHBV by operation of law. The principal business activities of DAHBV relate to the holding and the financing of certain subsidiaries of Diageo. The principal executive offices of DAHBV are located at Molenwerf 10-12, 1014 BG Amsterdam, The Netherlands.

     On June 24, 2004, DAHBV merged with and into Diageo Holdings Netherlands, and the Shares were transferred to Diageo Holdings Netherlands by operation of law. The principal business activities of Diageo Holdings Netherlands relate to the holding and the financing of certain subsidiaries of Diageo. The principal executive offices of Diageo Holdings Netherlands are located at Molenwerf 10-12, 1014 BG Amsterdam, The Netherlands. References to the “Reporting Persons” herein are to Diageo and Diageo Holdings Netherlands.

     The name, business address, present principal occupation or employment and citizenship of each of the executive officers and directors of

 

 

Diageo and Diageo Holdings Netherlands are set forth in Schedule I hereto and are incorporated by reference herein.

     During the last five years, none of the Reporting Persons and, to the knowledge of each of the Reporting Persons, none of the persons listed on Schedule I hereto: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3. Source and Amount of Funds or Other Consideration.

     Item 3 of the Schedule 13D is hereby amended and supplemented by deleting the fourth sentence of the first paragraph of Item 3 and by replacing the third sentence of the third paragraph of Item 3 with the following:

     On June 23, 2004, pursuant to the terms of the Stockholders Agreement, DMWBV merged with and into DAHBV and the Shares were transferred to DAHBV by operation of law.

     On June 24, 2004, pursuant to the terms of the Stockholders Agreement, DAHBV merged with and into Diageo Holdings Netherlands, and the Shares were transferred to Diageo Holdings Netherlands by operation of law. As of the date hereof, Diageo Holdings Netherlands is the current record owner of the Shares.

Item 4. Purpose of the Transaction.

     Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following paragraphs at the end thereof:

     The Supplemental Marketing Agreement and Waiver, dated June 23, 2004. On June 23, 2004, Diageo, DAHBV (as successor in interest to Gramet Holdings Corp.) and General Mills entered into a Supplemental Marketing Agreement and Waiver (“SMA”).

     Under the terms of the SMA, we and General Mills have agreed, until the first anniversary of the effectiveness of the registration statement filed by General Mills on June 23, 2004 registering 49,907,680 of our shares of General Mills stock (the “Registration Statement”), to work in good faith toward the implementation of a transaction to sell 49,907,680 shares of General Mills common stock, or any smaller number agreed to by General Mills and Diageo, currently owned by us. The agreement further contemplates that:

 

 

  •   a portion of the shares, which portion will be 49,907,680 less the number of shares sold to General Mills as described in the next bullet, will be sold directly by Diageo, and
 
  •   at the same time, General Mills will repurchase from Diageo a number of shares determined by Diageo having an aggregate value of between $500 million and $750 million, and General Mills or a third party will sell equity-linked securities related to those shares.

     However, Diageo has the right to sell all 49,907,680 shares, or any smaller number agreed to by us and General Mills, directly through a block trade to an underwriter or syndicate of underwriters for resale to the public, subject to the right of General Mills to match the price offered by that underwriter and purchase those shares itself. The SMA provides that Diageo will not sell shares under the Registration Statement except in the transactions outlined above. Any other transaction under the Registration Statement would require the consent of General Mills.

     Under the SMA, General Mills agreed to file the Registration Statement, and to include in the Registration Statement 49,907,680 General Mills common shares held by Diageo. The inclusion of these shares was in lieu of any “piggyback” registration rights that Diageo might otherwise have had with respect to the Registration Statement. The SMA does not affect any of Diageo’s other registration rights under the Stockholders Agreement or otherwise affect its ability to sell the Shares in accordance with that agreement. Until the transaction described above is completed, or until Diageo otherwise sells the identified 49,907,680 shares, General Mills has agreed not to sell any equity securities under the Registration Statement without Diageo’s consent.

     Following the first anniversary of the effective date of the Registration Statement, General Mills has the right to deregister the offering of shares by Diageo. This right is subject to the agreement of General Mills not to offer or sell any shares of common stock under the Registration Statement until Diageo has otherwise disposed of at least 49,907,680 General Mills common shares. General Mills will also deregister the shares at Diageo’s request.

     The descriptions of the SMA in this item and throughout this Amendment No. 3 are qualified in their entirety by reference to the SMA, a copy of which is attached hereto as Exhibit (i).

     In connection with the execution of the SMA and the filing of the Registration Statement, Diageo’s representatives on the Board of Directors of General Mills resigned on June 23, 2004, and on that same day Diageo, DAHBV and General Mills executed an amendment to the Stockholders Agreement permanently eliminating Diageo’s right thereunder to representation on the Board

 

 

of Directors of General Mills. The descriptions of this amendment to the Stockholders Agreement throughout this Amendment No. 3 are qualified in their entirety by reference to the amendment, a copy of which is attached hereto as Exhibit (j).

Item 5. Interest in Securities of the Issuer.

     Item 5 of the Schedule 13D is hereby amended by replacing the second sentence of the first paragraph of Item 5 with the following:

     Following completion of the sale to the Company of the Put Shares, as discussed below, the Reporting Persons own the Shares which represent approximately 20.8% of the Common Stock outstanding, based on 379,543,998 shares of Common Stock outstanding as of May 30, 2004 (as reported by General Mills in the Registration Statement).

Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

     Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

     As more fully described in Item 4 above, Diageo, DAHBV and General Mills are parties to a Supplemental Marketing Agreement and Waiver. A copy of the Supplemental Marketing Agreement and Waiver is attached hereto as Exhibit (i).

     As more fully described in Item 4 above, Diageo, DAHBV and General Mills have executed an amendment to the Stockholders Agreement permanently eliminating Diageo’s right thereunder to representation on the Board of Directors of General Mills. A copy of this amendment to the Stockholders Agreement is attached hereto as Exhibit (j).

Item 7. Material to be filed as Exhibits.

     Item 7 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

     
Description
   Exhibit
Supplemental Marketing Agreement and Waiver among General Mills, Diageo, and DAHBV, dated June 23, 2004.
  (i)
 
    
Second Amendment to Stockholders Agreement by and among General Mills, Diageo, and DAHBV, dated June 23, 2004.
  (j)
 
    
Joint Filing Agreement, dated as of June 24, 2004, by and among Diageo and Diageo Holdings Netherlands.
  (k)

 

 

     After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct.

Dated: June 24, 2004
         
  DIAGEO plc
 		  
  By:   /s/ JOHN NICHOLLS    
    Name:   John Nicholls   
    Title:   Deputy Secretary   
 
  DIAGEO HOLDINGS
NETHERLANDS B.V.
 		  
  By:   /s/ M.C.T.M. GERICHHAUSEN    
    Name:   M.C.T.M. Gerichhausen   
    Title:   Director   
 
     
  By:   /s/ K.J. McGUIRE    
    Name:   K.J. McGuire  
    Title:   Director   
 

 

 

Exhibit Index

(i)   Supplemental Marketing Agreement and Waiver among General Mills, Diageo, and DAHBV, dated June 23, 2004.
 
(j)   Second Amendment to Stockholders Agreement by and among General Mills, Diageo, and DAHBV, dated June 23, 2004.
 
(k)   Joint Filing Agreement, dated as of June 24, 2004, by and among Diageo and Diageo Holdings Netherlands.

 

 

Schedule I

Diageo plc

Directors and Executive Officers

             
Name
   Present Business Address
   Present Principal Occupation
   Citizenship
Directors
 
            
Lord Blyth of Rowington
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Chairman   United Kingdom
 
Paul S. Walsh
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Chief Executive   United Kingdom
 
Nicholas C. Rose
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Chief Financial Officer   United Kingdom
 
Rodney F. Chase
  161 Berkeley Tower
48 Westferry Circus
London E14 8RP
   Deputy Chairman, Tesco plc   United Kingdom
 
Lord Hollick of Notting Hill
  Ludgate House,
245 Blackfriars Road
London SE1 9UY,
United Kingdom 		  Chief Executive, United
Business Media plc 		  United Kingdom
 
Maria Lilja
  Engelbrektsgatan 23,
114 32 Stockholm,
Sweden 		  Non-executive Director   Sweden
 
John K. Oates
  9 Kensington Gate,
London W8 5NA,
United Kingdom 		  Non-executive Director   United Kingdom
 
William S. Shanahan
  300 Park Avenue, New
York, NY 10022, USA 		  President,
Colgate-Palmolive Company 		  United States
 
H. Todd Stitzer
  25 Berkeley Square,
London W1J 6HB 		  Chief Executive, Cadbury
Schweppes Plc 		  United States
 
Jon R. Symonds
  15 Stanhope Gate,
London W1K 1LN
   Chief Financial Officer,
AstraZeneca PLC 		  United Kingdom
 
Paul A Walker
  Sage House,
Benton Park Road,
Newcastle upon Tyne
NE7 7LZ, United Kingdom 		  Chief Executive, The Sage
Group plc 		  United Kingdom
 
Executive Officers
            
 
Paul S. Walsh
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Chief Executive   United Kingdom
 
Nicholas C. Rose
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Chief Financial Officer   United Kingdom
 
Stuart R. Fletcher
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  President, Key Markets   United Kingdom

 

 

             
Name
   Present Business Address
   Present Principal Occupation
   Citizenship
James N.D. Grover
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Strategy Director   United Kingdom
 
Robert M. Malcolm
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  President, Global Marketing, Sales and Innovation   United States
 
Ian K. Meakins
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  President, European Major Markets and Global Supply   United Kingdom
 
Ivan M. Menezes
  6 Landmark Square,
Stamford,
CT 06901-2704,
United States 		  President, North America   United States
 
Andrew Morgan
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  President, Venture Markets   United Kingdom
 
Timothy D. Proctor
  6 Landmark Square,
Stamford,
CT 06901-2704,
United States 		  General Counsel   United States
 
Gareth Williams
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Human Resources Director   United Kingdom
 
Susanne M. Bunn
  8 Henrietta Place,
London W1G 0NB,
United Kingdom 		  Company Secretary   United Kingdom

 

 

Diageo Holdings Netherlands B.V.

Directors and Executive Officers

             
Name
   Present Business Address
   Present Principal Occupation
   Citizenship
Directors
       
 
            
Margaretha C.T.M.
Gerichhausen
  Molenwerf 10-12, 1014
BG Amsterdam, The
Netherlands 		  Director of Business &
Legal Director of Diageo
Holdings Netherlands		   Netherlands
 
            
Thomas H. Creighton
  Molenwerf 10-12, 1014
BG Amsterdam, The
Netherlands 		  Director of Diageo Holdings Netherlands   United Kingdom
 
            
Charles D. Coase
  St James’s Gate, Dublin 8, Ireland   Finance Director of Diageo Ireland   United Kingdom
 
            
Ravi Rajagopal
  8 Henrietta Place,
London W1G 0NB, United
Kingdom 		  Group Controller   India
 
            
Joel W. Walters
  8 Henrietta Place,
London W1G 0NB, United
Kingdom 		  Tax Director of Diageo   United States
 
            
John O. Stewart
  6 Landmark Square,
Stamford, Connecticut
06901-2704, USA 		  Chief Financial Officer of Diageo North America   United Kingdom
 
            
Jill Kyne
  8 Henrietta Place,
London W1G 0NB, United
Kingdom 		  Director Global Tax Risk   United Kingdom
 
            
Felicity A. Moffat
  8 Henrietta Place,
London W1G 0NB, United
Kingdom 		  Asst. General Counsel Corporate   United Kingdom
 
            
Kenneth J McGuire
  Molenwerf 10-12, 1014
BG Amsterdam, The
Netherlands 		  Supply Chain Director, Diageo Brands B.V.   The Netherlands
 
            
Coraline Bronsky-Panis
  Molenwerf 10-12, 1014
BG Amsterdam, The
Netherlands 		  Finance Director, Diageo Brands B.V.   The Netherlands

Executive Officers

There are no Executive Officers of Diageo Holdings Netherlands B.V.

 

EX-99.I 2 u47604exv99wi.htm EXHIBIT (I) exv99wi
 

Exhibit (i)

SUPPLEMENTAL MARKETING AGREEMENT AND WAIVER BY AND AMONG GENERAL MILLS,
INC., DIAGEO ATLANTIC HOLDING B.V. AND DIAGEO PLC
(the “AGREEMENT”)

     WHEREAS, Diageo plc and certain of its subsidiaries (“Parent”) own 79,000,000 shares of Common Stock, par value $0.10 per share (including the related preferred share purchase rights, the “Common Stock”), of General Mills, Inc. (the “Company”),

     WHEREAS, Parent and the Company wish to facilitate an orderly disposition of up to 49,907,680 shares of Common Stock owned by Parent,

     WHEREAS, the Company or a third party may issue equity-linked securities in connection with and to facilitate the distribution of Common Stock contemplated herein,

     WHEREAS, the Company, Gramet Holdings Corp. and Parent have entered into a Stockholders Agreement dated as of October 31, 2001 (the “Stockholders Agreement”) setting forth certain terms and conditions concerning, among other things, Parent’s disposition of the Common Stock owned by it, and

     WHEREAS, Diageo Atlantic Holding B.V. holds the shares of Common Stock originally held by Gramet Holdings Corp. subject to the provisions of the Stockholders Agreement,

     NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

     1. Each party covenants and agrees that it will work in good faith toward the implementation of a Marketed Structured Transaction in accordance with this Agreement and, except as set forth herein, the Stockholders Agreement; provided, that this covenant shall expire on the first anniversary of the date on which the Universal Shelf is declared effective under the Securities Act. Further, if any shares of Common Stock are sold in accordance with this Agreement, Parent shall receive all benefits of Section 5.4 and Section 5.6 of the Stockholders Agreement as if they applied to such sale, except as set forth herein. Except as set forth in paragraph 2 below, nothing contained in this Agreement shall relieve the Company of any of its obligations under Article V of the Stockholders Agreement or otherwise affect or limit Parent’s ability to sell its shares of Common Stock (otherwise than pursuant to the Universal Shelf) in accordance with any provision of the Stockholders Agreement. For the avoidance of doubt, any sale of Common Stock in accordance with the terms of this Agreement will not be deemed to have been made pursuant to a Demand Request and, accordingly, Section 5.7 of the Stockholders Agreement will not apply to any such sale.

     2. The Company agrees to file the Universal Shelf as soon as is practicable after the execution of this Agreement. The inclusion in the Universal Shelf of 49,907,680

 

 

shares of Common Stock owned by Parent on the terms set forth in this Agreement shall be in lieu of any piggy-back registration rights with respect to the Universal Shelf that Parent or the Shareholder Group might otherwise have had pursuant to Section 5.2 of the Stockholders Agreement, and Parent hereby waives on behalf of itself and the Shareholder Group any such piggy-back registration rights with respect to the Universal Shelf. Except as set forth herein, no party to this Agreement shall be under any obligation at any time to sell securities under the Universal Shelf.

     3. Parent hereby agrees not to sell any shares of Common Stock under the Universal Shelf except (a) in a Marketed Structured Transaction or a Bought Transaction or (b) with the express written consent of the Company in its sole discretion. Until Parent has sold 49,907,680 shares of Common Stock (not including shares of Common Stock transferred to Parent’s pension fund), the Company agrees not to sell or participate in the sale of any equity securities (as defined in Section 3(a)(11) of the Securities Exchange Act of 1934, as amended) of the Company under the Universal Shelf (except in a Marketed Structured Transaction or otherwise in accordance with the terms of this Agreement) without the prior written consent of Parent in its sole discretion.

     4. The Company agrees that, prior to the launch of a Marketed Structured Transaction (i.e., the commencement of any road show in connection with a Marketed Structured Transaction and/or the public announcement of a specific Marketed Structured Transaction), Parent may, in its sole discretion, elect to sell Common Stock under the Universal Shelf by means of a Bought Transaction. Before the consummation of any Bought Transaction, the Company and/or one or more financial institutions selected by the Company shall have the right to match the price offered to Parent in connection with such transaction. If the Company and/or the financial institution(s) selected by the Company match such price, Parent agrees to sell to the Company and/or such financial institution(s), and the Company agrees to purchase and/or to cause such financial institution(s) to purchase from Parent, the number of shares of Common Stock to be sold in such transaction at such price. If the Company and/or the financial institution(s) selected by the Company do not match such price and such a transaction is consummated, the Company agrees that it will not sell any equity securities (as defined in Section 3(a)(11) of the Securities Exchange Act of 1934, as amended) of the Company until 60 days after the date such transaction is consummated; provided, however, that if such transaction is not a Structured Transaction, the Company may at any time sell or agree to sell shares of Common Stock that it has purchased or will purchase from an unaffiliated seller in compliance with applicable law to a third party that has issued or will issue equity-linked securities exchangeable into such shares. For purposes of the foregoing proviso, the purchaser or purchasers of shares in a Bought Transaction shall be included within the term “unaffiliated seller” as long as any shares purchased by the Company from such purchaser or purchasers are purchased in compliance with applicable law.

-2-

 

     In connection with any Bought Transaction, the Company will use its reasonable best efforts to make management and documents promptly available to facilitate an appropriate due diligence investigation and will otherwise use its reasonable best efforts to facilitate the consummation of such transaction.

     5. In connection with any Marketed Structured Transaction or other sale of shares of Common Stock owned by Parent as permitted by this Agreement, Parent shall have the sole right to determine (with the objective of maximizing total net proceeds to Parent):

     (a) the amount and allocation of any fees;

     (b) the timing of any such sale;

     (c) the amount of Common Stock to be sold, in the case of a Marketed Structured Transaction within the parameters set forth in the definition of Structured Transaction;

     (d) the allocation of Common Stock to institutional purchasers;

     (e) the sale price;

     (f) the material pricing terms (within a range to be mutually agreed by Parent and the Company as determined based on the recommendations of the financial advisors to Parent and the Company), including the coupon and premium, of any equity-linked securities sold by the Company or a third party in connection with a Marketed Structured Transaction; and

     (g) the length and mechanics of any road show or other marketing activities relating to a Marketed Structured Transaction based upon the advice of the underwriter or underwriters.

     6. In exercising its sole discretion under paragraph 5, Parent will consider the Company’s objective to broaden the distribution of the Common Stock (as required by Section 4.1(a)(i) of the Stockholders Agreement) and, with respect to clause (f) of paragraph 5, Parent shall consult with the Company prior to exercising such discretion and consider in good faith the Company’s preferences as to the material pricing terms, including the coupon and premium, of any equity-linked securities sold in a Marketed Structured Transaction. Parent agrees that the Company may participate in discussions with the investment bank or banks leading the marketing of any Marketed Structured Transaction relating to the matters set forth in paragraph 5. In addition, in connection with any road show or other marketing activities relating to a Marketed Structured Transaction, the Company will only be required to provide reasonable assistance to the underwriters, including by making reasonably available its employees and personnel and by participating reasonably in road shows. Notwithstanding the provisions of clause (b)

-3-

 

of paragraph 5, prior to the time at which Parent and the Company enter into an underwriting agreement or other purchase agreement relating to any sale of Common Stock under the Universal Shelf, the Company shall have the right to delay any sale contemplated hereby (including during normal blackout periods) for reasonable periods of time (not to exceed 60 calendar days) to the extent the Company determines that such delay is necessary in order to ensure disclosure of material information in connection with such sale.

     7. Expenses associated with any sale of Common Stock by Parent pursuant to clause (a) of the definition of Structured Transaction will be allocated between the parties in the same manner as set forth in Section 5.5 of the Stockholders Agreement. Parent will not be required to pay underwriting fees and expenses in connection with a Bought Transaction in accordance with paragraph 4 hereof to the extent such fees and expenses are already reflected in the net price paid in such block trade.

     8. Each party hereto shall use its reasonable best efforts to cause all Persons acting as lead or co-lead underwriters in connection with the distribution of Common Stock or equity-linked securities in a Marketed Structured Transaction to work together to ensure an orderly market with full sharing of information between the lead and co-lead underwriters and concurrent completion of the offerings with a view to maximizing the aggregate net proceeds to Parent from such Marketed Structured Transaction.

     9. The purchaser or purchasers in a Marketed Structured Transaction or a Bought Transaction shall be entitled to use the Universal Shelf in connection with the resale in a public offering of the shares of Common Stock purchased in such Marketed Structured Transaction or Bought Transaction until the earlier of (a) 60 days following such purchase of such shares of Common Stock by such purchaser or purchasers and (b) completion of the distribution of such shares of Common Stock by such purchaser or purchasers. The Company agrees that Parent will be deemed to have satisfied its obligations under Section 4.1(a)(i) of the Stockholders Agreement with respect to any Bought Transaction if the underwriting agreement with any such purchaser or purchasers in connection with such Bought Transaction contains the covenants set forth in Exhibit A hereto. Parent agrees to use commercially reasonable efforts to ensure that the notice set forth in paragraph (a) of Exhibit A is given.

     10. Upon execution of underwriting agreements in connection with a Structured Transaction or if the Company exercises the option to match the price offered to Parent in accordance with paragraph 4 hereof, the parties agree to execute a purchase and sale agreement in the form of Exhibit B hereto in order to effect the sale by Parent to the Company of that portion of Common Stock contemplated to be sold as described under clause (b) of the definition of Structured Transaction or of the number of shares of Common Stock to be sold by Parent to the Company as a result of the exercise of such option, as the case may be. If the financial institution(s) selected by the Company exercise the option to match the price offered to Parent in accordance with paragraph 4 hereof, Parent agrees to execute, and the Company agrees to cause such financial

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institution(s) to execute, the pre-agreed underwriting agreement sent to bidders in connection with the proposed Bought Transaction with respect to the shares of Common Stock to be purchased from Parent by such financial institution(s).

     11. Any sale of Common Stock by Parent in accordance with this Agreement will be on terms consistent in all material respects with the existing disclosure in its Schedule 13D, as amended, filed with the SEC.

     12. On and after the first anniversary of the date on which the Universal Shelf is declared effective under the Securities Act, the Company shall have the right, in its sole discretion, to deregister the shares of Common Stock owned by Parent from the Universal Shelf; provided, however, that this right shall be conditioned on the Company’s agreement as described in paragraph 3 hereof not to sell any equity securities (as defined in Section 3(a)(11) of the Securities Exchange Act of 1934, as amended) of the Company under the Universal Shelf until Parent has sold 49,907,680 shares of Common Stock (not including shares of Common Stock transferred to Parent’s pension fund). The Company will deregister the shares of Common Stock owned by Parent from the Universal Shelf at any time at Parent’s request.

     13. Diageo Atlantic Holding B.V. may assign this Agreement and any of its rights and obligations hereunder to any direct or indirect wholly owned subsidiary of Parent to which it transfers the shares of Common Stock it owns in accordance with the terms of the Stockholders Agreement.

     14. Certain Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Stockholders Agreement. In addition, the following terms shall have the meanings ascribed to them below:

          “Bought Transaction” shall mean a transaction, which may or may not be a Structured Transaction, that is effected by means of a block trade to a nationally recognized investment banking firm or syndicate of nationally recognized investment banking firms identified by Parent and reasonably acceptable to the Company, for resale in a public offering, of 49,907,680 shares of Common Stock beneficially owned by Parent (or such lesser number as may be mutually agreed by Parent and the Company in their sole discretion or, if such transaction is a Structured Transaction, of such number of shares of Common Stock sold by Parent as described in clause (a) of the definition of “Structured Transaction”).

          “Marketed Structured Transaction” shall mean a Structured Transaction that is marketed by a nationally recognized investment banking firm or syndicate of nationally recognized investment banking firms selected by Parent and reasonably acceptable to the Company (provided that the Company shall have the right to select a joint lead bookrunner reasonably acceptable to Parent) and that is priced and sold following a marketing period, which may include a road show, as set forth in paragraph 5 above.

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          “Structured Transaction” shall mean a transaction structured to facilitate the distribution of 49,907,680 shares of Common Stock beneficially owned by Parent (or such lesser number as may be mutually agreed by Parent and the Company in their sole discretion), at the best available price, in which (a) a portion of such Common Stock, as determined by Parent (subject to the proviso below), is sold directly by Parent, and (b) contemporaneously therewith, equity-linked securities are sold by the Company or a third party in connection with the sale by Parent to the Company of shares of Common Stock not being sold by Parent as described under (a) above at a per share price equal to the per share net proceeds to be received by Parent in the sale described under (a) above; provided, however, that the number of shares of Common Stock to be sold by Parent to the Company under this clause (b) is a number of shares of Common Stock with an aggregate value (calculated at the per share price of such sale) of no less than $500 million and no more than $750 million.

           “Universal Shelf” shall mean a universal shelf registration statement filed in accordance with this Agreement by the Company registering the Company’s equity, debt and other securities, including 49,907,680 shares of Common Stock owned by Parent, for distribution in accordance with this Agreement from time to time pursuant to Rule 415 under the Securities Act.

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     IN WITNESS HEREOF, the parties have caused this Agreement to be duly executed by their respective authorized officers as of June 23, 2004.
         
  GENERAL MILLS, INC.
 		  
  By:  /s/ STEPHEN W. SANGER  
    Name:  Stephen W. Sanger  
    Title:  Chairman of the Board and Chief Executive Officer  
 
         
  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  
 
         
  DIAGEO ATLANTIC HOLDING B.V.
 		  
  By:  /s/ K.J. McGUIRE  
    Name:  K.J. McGuire  
    Title:  Director  
 

 

Exhibit A

UNDERWRITING AGREEMENT COVENANTS

  (a)   The Purchaser[s] will notify the Company when the distribution of the Securities by the Purchaser[s] has been completed.
 
  (b)   The distribution of the Securities by the Purchaser[s] will be conducted in a manner designed to result in a wide distribution of the Securities. Without limiting the foregoing, [each of] the Purchaser[s] will use its reasonable efforts to prevent any purchase of shares in the offering of the Securities by it by any Person or group that would, upon such purchase, beneficially own Voting Securities representing more than 5% of the Voting Power, except that in the case of a purchase by a Person specified in Rule 13d-1(b)(1)(ii) promulgated under the Exchange Act that would be eligible based on such Person’s status and passive intent with respect to the ownership, holding and voting of such Voting Securities to report such Person’s ownership of Voting Securities on Schedule 13G (assuming such Person owned a sufficient number of such Voting Securities to require such filing), [each of] the Purchaser[s] will use its reasonable efforts to prevent any purchase of shares in the offering of the Securities by it by any such Person that would, upon such purchase, beneficially own Voting Securities representing 10% or more of the Voting Power.

 

Exhibit B

PURCHASE AND SALE AGREEMENT

          General Mills, Inc. (the “Company”), a Delaware corporation, Diageo plc (“Diageo”), a public limited company organized under the laws of England and Wales, and [Diageo Entity] (the “Selling Stockholder”), a private limited company organized under the laws of England and Wales and an indirect wholly owned subsidiary of Diageo, hereby agree as follows in relation to the proposed transfer of a certain portion of the shares of common stock, par value $0.10 per share (including the related preferred share purchase rights, the “Common Stock”) of the Company held by the Selling Stockholder as contemplated pursuant to the Supplemental Marketing Agreement and Waiver, dated [•], 2004, among the Company, Diageo and Diageo Atlantic Holding B.V.:

1.   Purchase and Sale. The Selling Stockholder hereby agrees to sell [•] shares of Common Stock (the “Securities”) to the Company and the Company hereby agrees to purchase the Securities from the Selling Stockholder at a purchase price per share of $[•] (the “Transaction”).
 
2.   Closing. Subject to the satisfaction or waiver of the conditions set forth in Section 5, the closing of the Transaction shall occur on the date of the closing of the transactions contemplated pursuant to the Underwriting Agreement (the “Underwriting Agreement”), dated as of [•], 2004, among the Company, [Diageo entity] and [names of Representatives].
 
3.   Representations and Warranties of Diageo and the Selling Stockholder. Diageo and the Selling Stockholder represent and warrant to the Company as of the date hereof and as of the date of the Closing that:

  (i)   this Agreement has been duly authorized, executed and delivered by the Selling Stockholder;
 
  (ii)   the Selling Stockholder has, and on the date of the Closing will have, valid ownership of, or a valid “security entitlement” within the meaning of Section 102(17) of the New York Uniform Commercial Code (the “UCC”) in respect of, the Securities in each case free of all security interests, claims, liens, equities, encumbrances and other “adverse claims” (within the meaning of Section 8-102(1) of the UCC) and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Securities or a security entitlement in respect of the Securities;
 
  (iii)   upon delivery of the Securities to the Company in accordance with UCC Section 8-301(b), the Company shall become the owner of the Securities, and upon such delivery and payment for the Securities (assuming that the Company has not theretofore received notice of any adverse claim to the Securities), the Company shall be a “protected purchaser” of such Securities within the meaning of Section 8-303 of the UCC and shall have acquired ownership of the Securities free of any adverse claim;

 

 

  (iv)   neither the execution and delivery of this Agreement nor the offer and sale of the Securities will conflict with, result in a breach or violation of (A) the Memorandum and Articles of Association or charter or by-laws, as applicable, of the Selling Stockholder or any of its Material Subsidiaries (being, for the purposes of this Agreement, the significant subsidiaries of the Company or the Selling Stockholder, as applicable, as defined by Rule 1-02 of Regulation S-X), (B) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Selling Stockholder or any such subsidiary is a party or bound or to which its or their property is subject or (C) any statute, law, rule, regulation, judgment, order or decree applicable to the Selling Stockholder or any such subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Selling Stockholder or its subsidiaries or any of its or their properties (except where such conflicts, breaches or violations of or defaults under agreements or instruments or violations of status or regulations or imposition of liens or encumbrances, individually or in the aggregate, would not have an effect on the prospective rights of the Company as set forth under paragraph (iii) above); and
 
  (v)   no consent, approval, authorization, filing with or order of any court or governmental agency or body is required to be obtained by the Selling Stockholder in connection with the transactions contemplated herein, except such as have been obtained.

4.   Representations and Warranties of the Company. (a) The Company represents and warrants to Diageo and the Selling Stockholder as of the date hereof and as of the date of the Closing that:

  (i)   this Agreement has been duly authorized, executed and delivered by the Company;
 
  (ii)   neither the execution and delivery of this Agreement nor the offer and sale of the Securities will conflict with, result in a breach or violation of (A) the charter or by-laws of the Company or any Material Subsidiary, (B) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any such subsidiary is a party or bound or to which its or their property is subject, or (C) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any such subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties;
 
  (iii)   the Company has not received any notice of adverse claim to the Securities; and
 
  (iv)   no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained; and

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     (b) The Company further represents and warrants to Diageo and the Selling Stockholder that, as of the date hereof, the Company has, or has unrestricted access to, and, on the date of the Closing, will have, sufficient funds to purchase the Securities on the terms and conditions contemplated by this Agreement and to consummate the transactions contemplated hereby.

5.   Conditions. The obligations of the Company to purchase the Securities at Closing shall be conditioned upon:

  (i)   the Company not having received notice of any adverse claim to the Securities prior thereto; and
 
  (ii)   the issuance by [Issuer] of a security mandatorily convertible into [•] shares of Common Stock.

6.   Indemnification. (a) The Company agrees to indemnify and hold harmless Diageo and its affiliates against any losses, claims, damages, demands or liabilities to which they may become subject insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of the subsequent sale or transfer by the Company of the Securities purchased hereunder or any transactions entered into by the Company in connection with such subsequent sale or transfer, and it hereby agrees to reimburse periodically Diageo and its affiliates for any legal or other out-of-pocket expenses reasonably incurred by then in connection with investigating or defending any such actions or claims.

     (b) Promptly after receipt by Diageo or its affiliates of written notice of the commencement of any action or proceeding for which indemnification under Section 6(a) may be requested, Diageo will notify the Company in writing of the commencement thereof; but the failure so to notify the Company will not relieve it from liability under this Section 6 unless the Company was materially prejudiced by such failure of Diageo to give such notice, and will not, in any event, relieve the Company from any obligations to Diageo other than such indemnification obligation. The Company shall be entitled to appoint counsel of its choice at its expense to represent Diageo in any action for which indemnification is sought (in which case the Company shall not thereafter be responsible for the fees and expenses of any separate counsel retained by Diageo except as set forth below); provided, however, that such counsel shall be satisfactory to Diageo. Notwithstanding the Company’s election to appoint counsel to represent Diageo in an action, Diageo shall have the right to employ separate counsel (including local counsel), and the Company shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Company to represent Diageo would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both Diageo and the Company and Diageo shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Company, (iii) representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, (iv) the Company shall not have employed counsel satisfactory to Diageo to represent Diageo within a reasonable time after notice of the institution of such action or (v) the Company shall authorize Diageo to employ separate counsel at the expense of the Company. If the Company fails to take reasonable steps necessary to defend diligently the action or proceeding within 20 days after receiving notice from Diageo that Diageo believes it has failed to do so, Diageo shall have the

-3-

 

right to assume or continue its own defense and the Company shall be liable for any expenses therefore. If the Company is not entitled to, or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel for Diageo with respect to such claim. The Company will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or delayed. The Company will not, without the prior written consent of Diageo, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not Diageo is an actual or potential party to such claim or action) unless such settlement, compromise or consent includes an unconditional release of Diageo from all liability arising out of such claim, action, suit or proceeding, does not subject Diageo to any material injunctive relief or other material equitable remedy and does not include a statement or admission of fault, culpability or a failure to act, by or on behalf of Diageo.

     (c) The Company and Diageo agree that if, for any reason, the indemnification provisions contemplated by this Section 6 are unavailable to or are insufficient to hold harmless an indemnified party in respect of any claims referred to herein, then the Company shall contribute to the amount paid or payable by such indemnified party as a result of such claims in such proportion as is appropriate to reflect the relative fault of the Company, on the one hand, and the indemnified party, on the other hand, with respect to the subsequent sale or transfer of the Securities purchased hereunder or related transaction giving rise to such claim. The relative fault of the Company and the indemnified party shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such claim. If, however, the allocation in the second preceding sentence is not permitted by applicable law, then the Company shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the Company and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 6(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the preceding sentences of this Section 6(c). The amount paid or payable by an indemnified party as a result of the claims referred to above shall be deemed to include (subject to the limitations set forth in Section 6(b) hereof) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action, proceeding or claim.

7.   Governing law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
 
8.   Counterparts. This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement.
 
9.   Effectiveness. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

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     If the foregoing is in accordance with your understanding, please confirm your acceptance of the foregoing by signing and returning the enclosed copy of this Agreement.

     
Dated: [•], 2004
    
  Very truly yours,
 
    
  DIAGEO PLC
 
    
 
 
  Name:
  Title:
 
    
  [DIAGEO ENTITY]
 
    
 
 
  Name:
  Title:
     
Accepted as of the date hereof
   
 
    
GENERAL MILLS, INC.
    
 
    
   
Name:
    
Title:
    

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EX-99.J 3 u47604exv99wj.htm EXHIBIT (J) exv99wj
 

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 Mills, 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).

WITNESSETH

     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.

     NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

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:

 

 

          Section 3.3 Voting. Until the twentieth anniversary of the Closing or, if earlier, such time as the Shareholder Group Shares represent less than 5% of the then outstanding shares of Common Stock, each member of the Shareholder Group shall (i) vote at any stockholder meeting or in connection with any action by written consent at or in which Voting Securities are entitled to vote, on any matter that may be presented, all of its Shareholder Group Shares in the same proportion as the votes cast by or on behalf of the holders of Voting Securities other than the members of the Shareholder Group; provided that, notwithstanding the above, (A) in connection with any election of Directors by the stockholders of the Company, the Shareholder Group members shall vote all of the Shareholder Group Shares in favor of the election of the full slate of Director nominees recommended by the Board to the stockholders of the Company, and (B) at any time when the Shareholder Group Shares represent less than 10% of the then outstanding shares of Common Stock, the Shareholder Group members shall be entitled to vote the Shareholder Group Shares in their discretion on any Select Voting Matter that may be presented to the stockholders of the Company and (ii) be present in person or represented by proxy, at all meetings of stockholders of the Company so that all Shareholder Group Shares shall be counted for the purpose of determining the presence of a quorum at such meetings. For the avoidance of doubt, it is understood and agreed that nothing contained in Section 3.1 shall limit any Shareholder Group member from exercising its voting rights as permitted under this Section 3.3 with respect to Select Voting Matters.

  (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:

          Section 3.5 Provision of Information. The Company shall provide to Parent in a reasonably timely manner such information regarding the Company and its Subsidiaries as Parent requests and which is necessary in order for Parent to prepare (a) the reports and accounts of Parent required under applicable stock exchange rules and regulations or (b) the reports of Parent required to be filed under the Exchange Act, provided that with respect to such information provided, Parent shall, and it hereby agrees to, be bound by the same restrictions on disclosure and use of confidential information as apply to a Director in his capacity as such, it being understood and agreed that nothing contained in this Section 3.5 shall prohibit Parent from including any such information in such reports under applicable stock exchange rules and regulations or under the Exchange Act as and to the extent required to be so included.

3.   Counterparts: Effectiveness. This Amendment may be executed 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 Stockholders Agreement shall remain in full force and effect. The Stockholders Agreement, as amended by this Amendment, shall be binding upon the parties hereto and their successors and permitted assigns. This Amendment shall be effective as of the date first written above.

2

 

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.

     IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their respective authorized officers as of the date set forth at the head of this Amendment.

         
  GENERAL MILLS, INC.
 
        
  By:   /s/ SIRI S. MARSHALL
     
 
      Siri S. Marshall
      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/ K.J. McGUIRE
     
 
  Name:   K.J. McGuire
  Title:   Director

3

EX-99.K 4 u47604exv99wk.htm EXHIBIT (K) exv99wk
 

Exhibit (k)

JOINT FILING AGREEMENT

Pursuant to Rule 13d-1(k)(i) promulgated under the Securities Exchange Act of 1934, the undersigned hereby agree to the joint filing of this Statement on Schedule 13D on behalf of each of them, including any amendments thereto.

This Joint Filing Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

Date: June 24, 2004

       
DIAGEO PLC  
       
By:
/s/ JOHN NICHOLLS  
 		  
Name: John Nicholls
Title: Deputy Secretary		  
             
DIAGEO HOLDINGS NETHERLANDS B.V.        
 
            
By:
 /s/ M.C.T.M. Gerichhausen By:    /s/ K.J. McGuire
  		     
 
Name: M.C.T.M. Gerichhausen       Name: K.J. McGuire
Title: Director       Title: Director

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