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EXHIBIT 1
AMENDMENT NO. 1 TO FIRST AMENDED RIGHTS AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of January 15,
2001, to the Rights Agreement effective as of March 28, 1996, as amended by the
First Amended Rights Agreement effective as of May 28, 1998 (as so amended, the
"Rights Agreement"), between Ralston Purina Company, a Missouri corporation (the
"Company"), and Wells Fargo Bank Minnesota, N.A., as successor to Norwest Bank
Minnesota, N.A. (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company may from time to time supplement or amend the Rights Agreement in
accordance with the provisions of Section 27 thereof;
WHEREAS, the Company proposes to enter into an Agreement and
Plan of Merger (the "Nestle Merger Agreement"), among Nestle Holdings, Inc., a
Delaware corporation ("Parent"), Newco Merger Company, a Missouri corporation
and a direct wholly owned subsidiary of Parent ("Sub"), and the Company;
WHEREAS, the Board of Directors of the Company has determined
that the Nestle Merger Agreement and the terms and conditions set forth therein
and the transactions contemplated thereby, including, without limitation, the
Merger (as defined in the Nestle Merger Agreement), are fair to and in the best
interests of the Company and its shareholders; and
WHEREAS, the Board of Directors of the Company has determined,
in connection with its contemplation of the Nestle Merger Agreement, that it is
necessary and desirable to amend the Rights Agreement to exempt the Nestle
Merger Agreement and the transactions contemplated thereby, including, without
limitation, the Merger, from the application of the Rights Agreement as set
forth in this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement
as follows:
1. Section 1(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither Nestle Holdings, Inc., a Delaware
corporation ("Parent"), nor Newco Merger Company, a Missouri
corporation and a direct wholly owned subsidiary of Parent
("Sub"), nor any of Parent's Affiliates or Associates shall
become an Acquiring Person as a result of the approval,
execution, delivery or performance of the Agreement and Plan
of Merger, dated as of January 15, 2001, among Parent, Sub and
the Company (as it may be amended or supplemented from time to
time, the "Nestle Merger Agreement"), or the consummation of
the transactions contemplated thereby, including the Nestle
Merger (the "Merger" as defined in
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the Nestle Merger Agreement) (such approval, execution,
delivery, performance and consummation being referred to
herein as the "Permitted Merger Events")."
2. Section 1(y) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Shares Acquisition Date shall not occur or be
deemed to occur as a result of any Permitted Merger Event."
3. Section 3(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence to the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not occur or be deemed to
occur as a result of any Permitted Merger Event."
4. Section 7(a) of the Rights Agreement is hereby amended by
deleting "(i) the Close of Business on March 28, 2006 (the "Final Expiration
Date")," and replacing it with the following:
"(i) the earlier of (x) the Close of Business on March 28,
2006 and (y) the closing of the transactions contemplated by
the Nestle Merger Agreement (such earlier date, the "Final
Expiration Date"),"
5. This Amendment shall be deemed to be a contract made under
the laws of the State of Missouri and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
6. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
7. In all respects not inconsistent with the terms and
provisions of this Amendment, the Rights Agreement is hereby ratified, adopted,
approved and confirmed. In executing and delivering this Amendment, the Rights
Agent shall be entitled to all the privileges and immunities afforded to the
Rights Agent under the terms and conditions of the Rights Agreement.
8. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment, and of the Rights Agreement, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
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9. Except as otherwise expressly provided herein, or unless
the context otherwise requires, all terms used herein have the meanings assigned
to them in the Rights Agreement.
10. The Rights Agent and the Company hereby waive any notice
requirement under the Rights Agreement pertaining to the matters covered by this
Amendment.
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IN WITNESS WHEREOF, this Amendment has been duly executed by
the Company and the Rights Agent as of the day and year first written above.
Attest: RALSTON PURINA COMPANY
By: /s/ Nancy E. Hamilton By: /s/ Stanley M. Rea
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Name: Nancy E. Hamilton Name: Stanley M. Rea
Title: Vice President and Title: Vice President and
Secretary General Counsel
Attest: WELLS FARGO BANK MINNESOTA,
N.A., as Rights Agent
By: /s/ Suzanne M. Swits By: /s/ Kenneth P. Swanson
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Name: Suzanne M. Swits Name: Kenneth P. Swanson
Title: Assistant Secretary Title: Vice President
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OFFICER'S CERTIFICATE
This certificate is delivered to Wells Fargo Bank Minnesota,
N.A., as successor to Norwest Bank Minnesota, N.A., in connection with that
certain Rights Agreement effective as of March 28, 1996, as amended by the First
Amended Rights Agreement effective as of May 28, 1998 (as so amended, the
"RIGHTS AGREEMENT"), between Ralston Purina Company, a Missouri corporation (the
"COMPANY"), and Norwest Bank Minnesota, N.A. (the "RIGHTS AGENT"), in accordance
with Section 27 of the Rights Agreement. Pursuant to Section 27 of the Rights
Agreement, the Rights Agent must execute the attached Amendment No. 1 to First
Amended Rights Agreement upon the delivery of this officer's certificate stating
that such Amendment No. 1 to First Amended Rights Agreement is in compliance
with the terms of Section 27 of the Rights Agreement.
The undersigned hereby certifies that the attached Amendment
No. 1 to First Amended Rights Agreement was duly and validly authorized and
adopted by the Board of Directors of the Company and said Amendment No. 1 to
First Amended Rights Agreement is in compliance with Section 27 of the Rights
Agreement.
In witness whereof, the undersigned has executed this
Certificate as of this 15th day of January, 2001.
RALSTON PURINA COMPANY
By: /s/ Stanley M. Rea
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Name: Stanley M. Rea
Title: Vice President and
General Counsel
