EX-2 3 ex2-1june16.txt EXHIBIT 2.1 Exhibit 2.1 ----------- AMENDMENT NO. 3 --------------- Amendment No. 3 (this "Amendment"), dated June 16, 2003 to the Agreement and Plan of Merger and Contribution, dated as of June 16, 2002, as amended on October 25, 2002 and February 5, 2003 (the "Merger Agreement"), by and among Dreyer's Grand Ice Cream, Inc. ("Dreyer's"), New December, Inc. ("New Dreyer's"), December Merger Sub, Inc. ("Merger Sub"), Nestle Holdings, Inc. ("Nestle") and NICC Holdings, Inc. ("NICC"). All capitalized terms not ("Nestle") and NICC Holdings, Inc. ("NICC"). All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement. WHEREAS, Dreyer's, New Dreyer's, Merger Sub, Nestle and NICC (together, the "Parties") have heretofore executed and entered into the Merger Agreement; WHEREAS, pursuant to Section 11.8 of the Merger Agreement, the Parties may amend the Merger Agreement by a written instrument executed by each of them; and WHEREAS, the parties wish to amend the Merger Agreement as set forth below; NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein, the parties hereto agree as follows: 1. Section 10.1(b) of the Merger Agreement is hereby amended by replacing the words "the close of business on the anniversary date hereof" with "5:00pm (Eastern Time) on June 30, 2003". 2. Except as expressly set forth herein, this Amendment to the Merger Agreement shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Merger Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. 3. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written. DREYER'S GRAND ICE CREAM, INC. By: /s/ T. Gary Rogers ------------------------------ Name: T. Gary Rogers Title: Chairman of the Board and Chief Executive officer NEW DECEMBER, INC. By: /s/ Timothy F. Kahn ------------------------------ Name: Timothy F. Kahn Title: President DECEMBER MERGER SUB, INC. By: /s/ Timothy F. Kahn ------------------------------ Name: Timothy F. Kahn Title: President NESTLE HOLDINGS, INC. By: /s/ Kristin Adrian ------------------------------ Name: Kristin Adrian Title: Senior Vice President, General Counsel and Secretary NICC HOLDINGS, INC. By: /s/ Kristin Adrian ------------------------------ Name: Kristin Adrian Title: Assistant Secretary