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EXHIBIT 2.2
Nestle S.A.
55 Avenue Nestle
1800 Vevey
Switzerland
January 15, 2001
Nestle Holdings, Inc.
c/o Nestle USA, Inc.
800 North Brand Boulevard
Glendale, CA 91203
Ralston Purina Company
Checkerboard Square
St. Louis, MO 63164
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger (the
"Merger Agreement"), dated January 15, 2001, among Nestle Holdings, Inc.
("Parent"), Newco Merger Company ("Sub") and Ralston Purina Company (the
"Company"). Terms used but not defined herein shall have the meanings assigned
thereto in the Merger Agreement.
In connection with the Merger and the other transactions
contemplated by the Merger Agreement, Nestle S.A. ("Guarantor"), a corporation
organized under the laws of Switzerland and parent of Parent, hereby
irrevocably, absolutely and unconditionally guarantees the due, punctual and
complete performance and payment (and not merely collection) in full of all
obligations and liabilities of Parent and Sub under the Merger Agreement, as and
when due and payable or required to be performed pursuant to any provisions of
the Merger Agreement, subject to the terms and conditions thereof (the
"Guaranteed Obligations"). To the fullest extent permitted by applicable law,
Guarantor waives presentment to, demand of payment from and protest to any other
person of any of the Guaranteed Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. The
obligations of Guarantor hereunder shall not be subject to any reduction,
limitation,
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impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Guaranteed Obligations,
or otherwise. Notwithstanding any of the foregoing, nothing herein shall be
deemed to waive or limit Guarantor's ability to assert any claims, defenses or
other rights that Parent or Sub may have under the Merger Agreement.
In addition, Guarantor hereby makes the following
representations and warranties:
1. Guarantor is duly organized, validly existing and in good
standing under the laws of Switzerland and has all requisite corporate power and
authority and possesses all governmental franchises, licenses, permits,
authorizations and approvals necessary to enable it to own, lease or otherwise
hold its properties and assets and to conduct its businesses as presently
conducted, other than such franchises, licenses, permits, authorizations and
approvals the lack of which, individually and in the aggregate, is not
reasonably expected to have a material adverse effect on the ability of
Guarantor to perform its obligations under this letter agreement.
2. Guarantor has all requisite corporate power and authority
to execute and deliver this letter agreement. The execution and delivery by
Guarantor of this letter agreement has been duly authorized by all necessary
corporate action on the part of Guarantor. Guarantor has approved this
Agreement. Guarantor has duly executed and delivered this Agreement, and,
assuming the due authorization, execution and delivery of this Agreement by the
Company, this Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
3. Guarantor owns 100% of the issued and outstanding capital
stock of Parent.
4. Other than as provided in Section 4.04 of the Merger
Agreement, no Consent of, or registration, declaration or filing with, or permit
from, any Governmental Entity is required to be obtained or made by or with
respect to Guarantor in connection with the execution, delivery and performance
of this letter agreement.
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5. Parent will have available on the Closing Date sufficient
funds to enable it to consummate the transactions contemplated by the Merger
Agreement.
In addition, Guarantor hereby agrees to make (or cause to be
made) such filings and take (or cause to be taken) such actions that would be
required to be taken by Guarantor under Section 6.03 of the Merger Agreement, as
though Guarantor were a party to the Merger Agreement and were substituted for
Parent in such Section.
Sections 9.05, 9.06 and 9.08 of the Merger Agreement are
incorporated by reference herein and made applicable hereto, provided that all
references in such Sections to "this Agreement" shall be deemed to refer to this
letter agreement. This letter agreement, taken together with the Merger
Agreement, the Company Disclosure Letter and the Confidentiality Agreement (i)
constitute the entire agreement, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
Merger and (ii) except as provided in the Merger Agreement, are not intended to
confer upon any person other than the parties any rights or remedies.
This letter agreement shall remain in full force and effect
only so long as the Merger Agreement remains in full force and effect.
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If you agree with the foregoing, please execute a copy of this
letter agreement and return one copy of this letter agreement to the
undersigned.
NESTLE S.A.,
by:
/s/ G. Baechler
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Name: G. Baechler
Title: Senior Vice President
Accepted and Agreed to:
NESTLE HOLDINGS, INC.,
by:
/s/ Joe Weller
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Name: Joe Weller
Title: Chief Executive Officer
and President
RALSTON PURINA COMPANY,
by:
/s/ Stanley M. Rea
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Name: Stanley M. Rea
Title: Vice President and
General Counsel
