STOCK PURCHASE AGREEMENT dated as of December 20, 2007 between YILDIZ HOLDING A.S. and CAMPBELL INVESTMENT COMPANY relating to the purchase and sale of the ACQUIRED COMPANIES (as defined herein) TABLE OF CONTENTS

 

(b)    merge or consolidate with any other Person or acquire a material amount of assets from any other Person other than (1) pursuant to existing contracts, agreements or commitments that are disclosed herein or in the Disclosure Schedule and (2) the acquisition of inventory, materials or supplies in the ordinary course of business;

 

(c)    sell, assign, license or otherwise dispose of (including by sublease) any material assets or property except (1) pursuant to existing contracts or commitments that are in the Disclosure Schedule or (2) for the sale of inventory in the ordinary course of business;

 

(d)    make any loan, advance or capital contribution to or investment in any Person, except for customary travel, relocation and similar advances in the ordinary course of business consistent with past practice;

 

(e)    transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or other ownership interests in, any of the Acquired Companies or the Subsidiary, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or other ownership interests in, any of the Acquired Companies or the Subsidiary;

 

(f)    effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of any of the Acquired Companies or the Subsidiary, or amend the terms of any outstanding securities of any of the Acquired Companies or the Subsidiary;

 

(g)    (A) increase the salary or other compensation of any director, officer or employee of any of the Acquired Companies or the Subsidiary, except for normal increases in the ordinary course of business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any director, officer, employee or consultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of any of the Acquired Companies or the Subsidiary or otherwise modify or amend or terminate any such plan or arrangement, except as required by an applicable labor agreement disclosed in the Disclosure Schedule or Law, or (D) enter into any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of any of the Acquired Companies or the Subsidiary (or amend any such agreement to which any of the Acquired Companies or the Subsidiary is a party), except as required by existing

 

individual employment arrangements, award or service agreements disclosed in the Disclosure Schedule or an applicable labor agreement disclosed in the Disclosure Schedule or Law;

 

(h)    enter into any commitment for capital expenditures of $1,000,000 individually or $5,000,000 in the aggregate;

 

(i)    enter into or renew any agreement, contract or arrangement that would be required, if existing on the date hereof, to be disclosed pursuant to Section 3.12(a)(vi), Section 3.12(a)(ix) or Section 3.12(a)(xi);

 

(j)    amend or modify in any material respect or terminate any (x) Material Contract or (y) any lease for any store with sales of more than $1,500,000 in the trailing twelve months prior to the date hereof, except for extensions or renewals of leases in the ordinary course of business pursuant to the terms of any lease and consistent with past practice;

 

(k)    settle or compromise any material pending or threatened litigation or any claim or claims that would (i) require any payment by any Acquired Company or the Subsidiary after the Closing Date, (ii) transfer or encumber any material asset or property of any Acquired Company or the Subsidiary, (iii) result in a material loss of revenue or (iv) place a material restriction on the business of the Acquired Companies or the Subsidiary;

 

(l)    make any material change in any Tax accounting or Tax reporting principles, methods or policies, elect or rescind any material election relating to Taxes, settle or compromise any claim relating to Taxes in a material amount, all with respect to the Acquired Companies or the Subsidiary; or

 

(m)    enter into a binding agreement to do any of the foregoing.

 

In addition, Seller will (i) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Owned Intellectual Property Rights required to be set forth on Section 3.19(a)(i) of the Disclosure Schedule and (ii) transfer to the Acquired Companies or the Subsidiary those domain names set forth on Section 5.01 of the Disclosure Schedule.

 

Section 5.02. Access to Information.  (a) Access to Information Prior to Closing.  From the date of this Agreement until the Closing Date, Seller will (1) give, and will cause each Acquired Company and the Subsidiary to give, Buyer and its counsel, financial advisors, auditors and other authorized representatives, reasonable access to the books, records and properties of each Acquired Company and Subsidiary, (2) furnish, and will cause each Acquired Company and the

 

 

Subsidiary to furnish, to Buyer and its counsel, financial advisors, auditors and other authorized representatives, such financial and operating data and other information relating to the Acquired Companies and the Subsidiary as such Persons may reasonably request and (3) instruct the employees, counsel and financial advisors of Seller, the Acquired Companies and the Subsidiary to cooperate with Buyer in its investigation of the Acquired Companies and the Subsidiary and to provide such information and assistance as Buyer or its representatives may reasonably request to assist with its financing for the transactions contemplated hereby.  Any investigation pursuant to this Section 5.02 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of Seller or any of its Affiliates, the Acquired Companies or the Subsidiary.  Notwithstanding the foregoing, Buyer shall not have access to personnel records relating to individual performance or evaluation records, medical histories or other information the disclosure of which in Seller’s good faith opinion could subject Seller or any of its Affiliates, the Acquired Companies or the Subsidiary to risk of liability.

 

(b)   Access to Information Following Closing.  From and after the Closing Date, Seller will afford promptly to Buyer and its counsel, auditors and other authorized representatives reasonable access to its books of account, financial and other records, employees and auditors to the extent they relate to the Acquired Companies or the Subsidiary and to the extent necessary to permit Buyer to determine any matter relating to its rights and obligations in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Acquired Companies or the Subsidiary or Buyer’s rights or obligations under any of the Transaction Documents; provided that any such access by Buyer and its counsel, auditors and other authorized representatives shall not unreasonably interfere with the conduct of the business of Seller, the Acquired Companies or any other respective Affiliates.

 

Section 5.03.  Maintenance of Insurance Policies.  Prior to the Closing, Seller and its Affiliates will use reasonable best efforts to maintain insurance policies for the Acquired Companies and the Subsidiary and their assets, properties and employees in an amount and scope consistent with any such insurance policies in effect as of the date of this Agreement.  The Acquired Companies and the Subsidiary shall after the Closing continue to have coverage under any such insurance policies in effect at the Closing with respect to, but only with respect to, occurrences prior to the Closing (except that, with respect to claims made policies, the Acquired Companies and the Subsidiary shall have coverage after the Closing only with respect to claims made prior to the Closing), and it is understood that (i) the Acquired Companies and the Subsidiary shall continue to be responsible for amounts (including deductibles) not covered by such insurance policies and (ii) the provisions of this Section 5.03 shall not obligate Seller or any of its Affiliates to pay any money with respect to any

 

 

insurance policies (including, without limitation, with respect to insurance policies in effect on or prior to the Closing) after the Closing.

 

Section 5.04.  Non-Competition; Non-Solicitation.  (a) For a period of two years from the Closing Date, Seller shall not, and shall cause its Affiliates not to, (i) directly or indirectly, own any interest in, manage, control or operate any business involving the manufacture, production, distribution or sale of premium chocolates other than the businesses of Pepperidge Farm and Arnott’s as operated substantially in the manner that such businesses exist on the date hereof or (ii) own any interest in, manage, control or operate any retail stores, whether in corporate, proprietorship or partnership form or otherwise, focusing principally on the sale of chocolate (the “Restricted Businesses”); provided, however, that the restrictions contained in this Section 5.04(a) shall not restrict or prohibit (i) the acquisition (and subsequent ownership, management, control or operation) by Seller or any of its Affiliates of a business, whether in corporate, proprietorship or partnership form or otherwise, not principally engaged in the Restricted Business; provided that Seller and its Affiliates will use commercially reasonable efforts to divest such Restricted Business as promptly as reasonably practicable thereafter or (ii) the acquisition by Seller and its Affiliates, directly or indirectly, of less than 5% in the aggregate of the outstanding capital stock of any company engaged in a Restricted Business.

 

(b)    For a period of two years from the Closing Date, without the prior written consent of Buyer, Seller shall not, and shall cause its directors, officers, and employees not to, directly or indirectly, (i) cause, solicit, induce or encourage any executive or management employees of any of the Acquired Companies and the Subsidiary as of the Closing Date to leave such employment or hire, employ or otherwise engage any such individual; provided, however, that the foregoing provision will not prevent Seller from hiring any such individual that seeks employment with Seller (x) in response to general advertisements that are not specifically targeted at executive employees of the Acquired Companies and the Subsidiary, or (y) through third party employment agencies that do not specifically target executive or management employees of the Acquired Companies and the Subsidiary, or (ii) cause, induce or encourage any actual or prospective material supplier or licensor of any of the Acquired Companies and the Subsidiary, or any other Person who has a material business relationship with any of the Acquired Companies and the Subsidiary, to terminate or adversely modify any such actual relationship or avoid or deny a prospective relationship.

 

(c)     From and after the Closing Date, Seller shall not, and shall cause their directors, officers, employees and Affiliates not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of Buyer or use or otherwise exploit for its own benefit, other than as consistent with Section 5.04(a), or for the benefit of anyone

 

 

other than Buyer, any Confidential Information (as defined below).  Seller shall not have any obligation to keep confidential (or cause its officers, directors or Affiliates to keep confidential) any Confidential Information if and to the extent disclosure thereof is specifically required by applicable Law, the rules of any national securities exchange or any Returns or other filings required to be made with any Taxing Authority; provided, however, that in the event disclosure is required by applicable Law, Seller shall, to the extent reasonably possible, provide Buyer with prompt notice of such requirement prior to making any disclosure so that Buyer may seek an appropriate protective order.  For purposes of this Section 5.04(c), “Confidential Information” means any information with respect to any of the Acquired Companies and the Subsidiary, including methods of operation, customer lists, products, prices, fees, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters.  “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that (i) is generally available to the public on the date of this Agreement or (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder.

 

(d)    The covenants and undertakings contained in this Section 5.04 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 5.04 may cause irreparable injury to Buyer, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated.  Accordingly, the remedy at law for any breach of this Section 5.04 may be inadequate.  Therefore, Buyer will be entitled to seek temporary and permanent injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 5.04 without the necessity of proving actual damage or posting any bond whatsoever.  The rights and remedies provided by this Section 5.04 are cumulative and in addition to any other rights and remedies which Buyer may have hereunder or at law or in equity.

 

(e)    The parties hereto agree that if any provision contained in this Section 5.04 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section 5.04, but this Section 5.04 shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.  It is the intention of the parties that if it is determined that a specified time period, a specified business limitation or any other relevant feature of this Section 5.04 is unreasonable, arbitrary, against public policy, or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Section to provide for a lesser period of time, business limitation or other relevant feature

 

 

which is determined by such court to be reasonable, not arbitrary, not against public policy, and valid and enforceable under such applicable Law.

 

Section 5.05.  Transition Services.  (a) From and after the Closing Date, Seller shall provide transition services to Buyer in some or all of the following areas as reasonably requested by Buyer: (1) information technology, (2) human resources and benefits, (3) purchasing, (4) finance and accounting and (5) real estate administration (each, a “Transition Service” and collectively, the “Transition Services”).  The cost for all of the services to be provided for each Transition Service will be billed by Seller to Buyer and will be as follows:

 

(i)   information technology services shall cost $384,000 per month;

 

(ii)   human resources and benefits shall cost $100,000 per month for Campbell administrative costs plus an amount equal to the fees, claims and/or expenses (net of contributions paid by the Transferred Employees) paid by Campbell during the previous month with respect to the human resources services provided to employees of the Acquired Companies;

 

(iii)   purchasing services costs shall be $37,250 per month;

 

(iv)   finance and accounting costs shall be $10,500 per month; and

 

(v)   real estate administration costs shall be $5,750 per month.

 

(b)     The costs for Transition Services set forth in Section 5.05(a) are for all Transition Services that Seller intends to provide.  Buyer and Seller may mutually agree that only a portion of the Transition Services shall be provided to Buyer in which case Seller will reduce the costs associated with such Transition Service in proportion to the amount and type of Transition Services that are not provided to Buyer.

 

(c)     Seller and Buyer covenant and agree to use reasonable best efforts and to work together in good faith to finalize a definitive written agreement relating to the provision of Transition Services (the “Transition Services Agreement”) promptly after the date hereof.  As part of such discussions the parties will work in good faith to reach a mutually agreeable arrangement with respect to reasonable out-of-pocket expenses incurred with respect to the provision of Transition Services.  The Transition Services Agreement will reflect that:

 

(i)   the nature, quality, scope and standard of care with respect to Seller’s delivery of Transition Services shall be substantially identical to the services provided by Seller or its Affiliates to the Acquired Companies as of the date hereof (subject to any company wide changes made by Seller or its Affiliates with respect to services included in the Transition Services);

 

(ii)   the Transition Services will be provided at volumes or levels necessary for the Acquired Companies and the Subsidiary to conduct their business consistent with the 2008 fiscal year projections provided to Buyer;

 

(iii)  Seller and Buyer shall mutually agree on the period during which Buyer may request the provision of each Transition Service duration of each Transition Service; provided that no Transition Service shall be required to be provided for a period of more than twelve (12) months from the Closing Date;

 

(iv)  Seller shall have the right, in its sole discretion but subject to providing Buyer with prior notice, to satisfy its obligation to provide or procure Transition Services by causing one or more of its Affiliates or one or more subcontractors to provide or procure such Transition Services; provided that Seller shall remain liable for the performance of such Transition Services by any of its Affiliates or subcontractors;

 

(v)  Seller shall not be obligated to provide or procure Transition Services where the consent of a third Person is reasonably required for the provision of such Transition Services; provided that Seller and Buyer shall use reasonable best efforts to obtain, at no cost to Seller, such consents; and

 

(vi)   the Transition Services shall be subject to customary terms and limitations regarding liability, indemnification, damages and billing procedures to be agreed by Seller and Buyer.

 

(d)  In addition to the Transition Services to be provided or procured by Seller or its Affiliates in accordance with this Section 5.05, if requested by Buyer, and to the extent that Seller and the Buyer may mutually agree, Seller or its Affiliates shall provide additional services to the Buyer.  The Seller shall consider in good faith and not unreasonably deny any request made by Buyer pursuant to this Section 5.05(d).  The scope of any such additional services, as well as the term, costs, and other terms and conditions applicable to such additional services, shall be as mutually agreed by Seller and Buyer.

 

(e)  If Seller and Buyer are unable to reach a definitive written agreement with respect to Transition Services, Seller will, at Buyer’s request and consistent with the principles set forth in this Section 5.05, provide Transition Services to Buyer on commercially reasonable and customary terms and at the costs set forth in Section 5.05(a).

 

Section 5.06.  Third Party Consents.  Seller and Buyer shall, and Seller shall cause the Acquired Companies and the Subsidiary to, use, their commercially reasonable efforts to obtain at the earliest practicable date all material consents, waivers and approvals from, and provide all notices to, all Persons that are not a governmental body in connection with the transactions contemplated by this Agreement, including the consents, waivers, approvals and notices referred to in Section 3.04 hereof (except for such matters covered by Section 7.02 and Section 7.05).  All such consents, waivers, approvals and notices, other than those with respect to leases for Identified Stores as set forth in Section 7.05, shall be in writing and in form and substance satisfactory to Buyer.  Notwithstanding anything to the contrary in this Agreement, (i) neither Buyer nor Seller nor any of their Affiliates (which for purposes of this sentence shall include the Acquired Companies and the Subsidiary) shall be required to pay any amounts in connection with obtaining any consent, waiver or approval and (ii) other than as specifically set forth in this Agreement, no consent, including with respect to leases for Identified Stores as set forth in Section 7.05, shall be required to consummate the Closing of the transactions contemplated by this Agreement.

 

Section 5.07.  Notification Of Certain Matters.  Seller shall give notice to Buyer and Buyer shall give notice to Seller, as promptly as reasonably practicable upon becoming aware of (a) any fact, change, condition, circumstance, event, occurrence or non-occurrence that has caused or is reasonably likely to cause any representation or warranty in this Agreement made by it to be untrue or inaccurate in any respect at any time after the date hereof and prior to the Closing, (b) any material failure on its part to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder or (c) the institution of or the threat of institution of any legal proceeding against any of Seller, the Acquired Companies or the Subsidiary related to this Agreement or the transactions contemplated hereby; provided that the delivery of any notice pursuant to this Section 5.07 shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice, or the representations or warranties of, or the conditions to the obligations of, the parties hereto.

 

Section 5.08.  Resignation Of Directors.  If requested in writing by Seller, Seller shall cause each of the directors of the Acquired Companies and the Subsidiary to submit a letter of resignation effective on or before the Closing Date.

 

Section 5.09.  Delivery Of Audited Financial Statements.  Seller shall use its commercially reasonable efforts to (i) deliver the Audited Financial Statements to Buyer as promptly as practicable after the date hereof and (ii) subject to the execution of appropriate release letters by Buyer, use commercially reasonable efforts to provide access to the PricewaterhouseCoopers’ work papers for the Audited Financial Statements.

 

Section 5.10.  2005 Audit.  Seller shall, and shall cause its Affiliates to, at Buyer’s cost, assist Buyer and its representatives, including, without limitation, by providing such information as is reasonably requested by Buyer, with the preparation of audited financial statements for the results of operations of the Acquired Companies and the Subsidiary for the fiscal year ended in 2005.

 

 

Buyer agrees that:

 

Section 6.01.  Confidentiality.  All information provided or made available to Buyer or any of its Representatives (as such term is defined in the Confidentiality Agreement) will be subject to the Confidentiality Agreement dated September 25, 2007 between Buyer and Campbell (the “Confidentiality Agreement”), which agreement shall remain in full force and effect until the Closing and shall thereupon terminate except that the disclosure, but not the use (to the extent necessary to operate the Acquired Companies and the Subsidiary in the ordinary course) of any Evaluation Information (as defined in the Confidentiality Agreement) to the extent related solely to Seller or its Affiliates shall continue to be governed by the terms of the Confidentiality Agreement; provided that Buyer and Seller may, after consultation with the other party, disclose such information as may be necessary in connection with seeking necessary consents and approvals as contemplated by this Agreement.

 

Section 6.02.  Access to Information Following Closing.  From and after the Closing Date, Buyer will afford, and will cause each Acquired Company and the Subsidiary to afford, promptly to Seller and its Affiliates and their counsel, auditors and other authorized representatives reasonable access to their books of account, financial and other records, employees and auditors to the extent they relate to the Acquired Companies or the Subsidiary and to the extent necessary to permit Seller and its Affiliates to determine any matter relating to their rights and obligations in connection with any audit, investigation, dispute or litigation (other than any dispute or litigation to which any of Buyer, the Acquired Companies and the Subsidiary is party) or any other reasonable business purpose relating to any Acquired Company or the Subsidiary or Seller’s or any of its Affiliate’s rights or

 

 

obligations under any of the Transaction Documents; provided that any such access by Seller and its Affiliates and their counsel, auditors and other authorized representatives shall not unreasonably interfere with the conduct of the business of Buyer, its Affiliates, any Acquired Company or the Subsidiary.

 

Section 6.03.  Insurance.  Buyer agrees that, subject to Section 5.03, all insurance policies covering the Acquired Companies or the Subsidiary maintained by or on behalf of Seller or its Affiliates shall not provide coverage to the Acquired Companies or the Subsidiary following the Closing and that, after the Closing, Seller and its Affiliates shall have no obligation of any kind to maintain any form of insurance covering the Acquired Companies or the Subsidiary.

 

Section 6.04.  Inspections; No Other Representations.  Buyer agrees to accept the Shares in the condition they are in on the Closing Date based upon its own inspection, examination and determination with respect thereto as to all matters, and without reliance upon any express or implied representations or warranties of any nature, whether in writing, oral or otherwise, made by or on behalf of or imputed to Seller or any of its Affiliates, except as expressly set forth in this Agreement.  Without limiting the generality of the foregoing, Buyer acknowledges that Seller and its Affiliates make no representation or warranty with respect to any projections, estimates or budgets delivered to or made available to Buyer of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of any Acquired Company and the Subsidiary or the future business and operations of any Acquired Company and the Subsidiary or any other information or documents made available to Buyer or its counsel, accountants or advisors with respect to any Acquired Company, the Subsidiary, Seller, any of Seller’s Affiliates or any of the foregoing business, assets, liabilities or operations, except as expressly set forth in this Agreement.

 

 

 

Buyer and Seller agree that:

 

Section 7.01.  Reasonable Best Efforts; Further Assurances.  Subject to the terms and conditions of this Agreement, Buyer and Seller will use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable to consummate the transactions contemplated by any of the Transaction Documents.  Seller and Buyer shall execute and deliver, and Seller, prior to the Closing, and Buyer, after the Closing, shall cause the Acquired Companies and the Subsidiary to execute and deliver, such other documents, certificates, agreements and other writings and to take such

 

 

other actions as may be necessary or appropriate in order to consummate or implement expeditiously the transactions contemplated by any of the Transaction Documents.

 

Section 7.02.  Certain Filings.  (a) Seller and Buyer shall cooperate with one another (1) in determining whether any action by or in respect of, or filing with, any governmental body, agency, official or authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated by any of the Transaction Documents and (2) subject to the terms and conditions of this Agreement, in taking such actions or making any such filings, furnishing information required in connection therewith and seeking to obtain on a timely basis any such actions, consents, approvals or waivers.  In furtherance and not in limitation of the foregoing, each of Buyer and Seller shall (i) take all steps reasonably necessary to prepare and make an appropriate filing with the Turkish Competition Authority with respect to the transactions contemplated hereby and (ii) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable after the date of this Agreement (and in any event, with respect to both items (i) and (ii) of this Section 7.02(a), within 10 Business Days of the date of this Agreement) and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable; provided, however, that Buyer shall in no event be under any obligation to (1) divest, or hold separate (including by trust or otherwise), any material business, product line, or asset as a precondition to the approval by such governmental authority of the transactions contemplated by under the Transaction Documents, or (2) agree to any material limitation on the operation or conduct of the businesses of Buyer or its Affiliates.

 

(b)  If any objections are asserted with respect to the transactions contemplated by the Transaction Documents under any antitrust Law or if any action, suit or other proceeding is instituted or threatened by any governmental authority or any private party challenging any of the transactions contemplated hereby as violative of any antitrust Law, Buyer and Seller shall use their respective reasonable best efforts promptly to resolve such objections; provided, however, that Buyer shall in no event be under any obligation to (1) divest, or hold separate (including by trust or otherwise), any material business, product line, or asset as a precondition to the approval by such governmental authority of the transactions contemplated by under the Transaction Documents, or (2) agree to any material limitation on the operation or conduct of the businesses of Buyer or its Affiliates.

 

(c)   Buyer and Seller shall use their respective reasonable best efforts to keep the other party informed in all material respects with respect to any communication given or received in connection with any filing, submission, investigation or proceeding relating to the transactions contemplated by the Transaction Documents.

 

Section 7.03.  Public Announcements.  The parties shall consult with each other before issuing any press release with respect to any Transaction Document or the transactions contemplated thereby and will not issue any such press release prior to such consultation.  Notwithstanding the foregoing, except as provided by Section 6.01, no provision of this Agreement shall relieve Buyer or any of its Representatives (as such term is defined in the Confidentiality Agreement) from any of its obligations under the Confidentiality Agreement.

 

Section 7.04.  Inter-Company Transactions.  Seller shall use its commercially reasonable efforts to settle and/or satisfy all inter-company liabilities and obligations existing between Campbell and its Affiliates, on the one hand, and the Acquired Companies and the Subsidiary, on the other hand, prior to the Closing.  All inter-company liabilities and obligations existing between Campbell and its Affiliates on the one hand, and the Acquired Companies and the Subsidiary on the other, that are not paid at Closing shall remain outstanding after the Closing and be paid in the ordinary course of business and consistent with past practice.

 

Section 7.05.  Material Consents.  From and after the date of this Agreement, each of Seller and Buyer shall use their commercially reasonable efforts to obtain consent in connection with the transactions contemplated by this Agreement with respect to the leases for the stores set forth on Section 7.05 of the Disclosure Schedule (each an “Identified Store” and collectively, the “Identified Stores”); provided that this sentence shall not require any Person to agree to any modification of any lease with respect to an Identified Store or to make any payments except for payments expressly provided for in this Section 7.05.  If, at any time within 180 days of the Closing Date, a Party in Interest terminates, recaptures, evicts or locks out an Acquired Company or the Subsidiary or takes any action that results in the inability of any Acquired Company or the Subsidiary to operate an Identified Store on the terms set forth in the applicable lease for such Identified Store (collectively, a “Loss of Space”) under more than five (5) of leases for Identified Stores prior to the expiration of the current term of the applicable lease for such Identified Store, then, for each such Identified Store in excess of five (5) Identified Stores for which consent is not obtained and a Loss of Space occurs, Seller shall promptly pay to Buyer the amount specified on item #2 of Section 7.05 of the Disclosure Schedule; provided the Party in Interest has no basis for terminating the applicable lease as a result of any action taken by Buyer or its Affiliates (including the Acquired Companies and the Subsidiary) after the

 

 

Closing Date.  Seller or its Affiliates shall not, and shall cause the Acquired Companies and the Subsidiary not to, agree or consent to any modification of any lease of an Identified Store without the prior written consent of Buyer.  It is understood and agreed that with respect to all leases for Identified Stores (i) under no circumstances will the inability to renew or extend a lease for an Identified Store by the Acquired Companies or the Subsidiary at the end of the current term give rise to a payment obligation by Seller under this Section 7.05 and (ii) that any consent received with respect to a lease for an Identified Store shall be in writing and in form and substance reasonably satisfactory to Buyer.

 

 

Section 8.01.  Tax Representations.  Seller represents and warrants to Buyer as of the date of this Agreement and as of the Closing Date that with respect to each Acquired Company and the Subsidiary, to the best of Seller’s knowledge (i) all Tax returns, statements, reports and forms (collectively, the “Returns”) that are material and required to be filed with any Taxing Authority on or before the Closing Date with respect to each Acquired Company and the Subsidiary have been, or will be, timely filed (including any extensions) on or before the Closing Date; (ii) each of the Acquired Companies and the Subsidiary has timely paid all Taxes shown as due and payable on the Returns that have been filed; (iii) the Returns that have been filed are true, correct and complete in all material respects; (iv) the charges, accruals and reserves for Taxes with respect to each of the Acquired Companies and the Subsidiary reflected on their respective books are adequate to cover material Tax liabilities accruing through the end of the last period for which each of the Acquired Companies and the Subsidiary ordinarily record items on their respective books; (v) there is no action, suit, proceeding, investigation, audit or claim now pending or proposed in writing against or with respect to any Acquired Company or the Subsidiary in respect of any material Tax for which adequate reserves do not appear on the Audited Financial Statements of the Acquired Companies or the Subsidiary; (vi) each of the Acquired Companies and the Subsidiary has complied in all material respects with all applicable Laws relating to the withholding of Taxes and has duly and timely withheld and paid over to the appropriate Taxing Authority all amounts required to be so withheld and paid under all applicable Laws, and (vii) to the best of Seller's knowledge (a) no chargeable gain would arise in respect of any asset of Godiva UK Limited which is either reflected as such in Exhibit B if that asset were to be disposed of for consideration equal to the value attributed thereto in Exhibit B or acquired after the Balance Sheet Date if that asset were to be disposed of for consideration equal to the consideration given for its acquisition, in each case disregarding any statutory rights to claim any allowance or relief

 

 

other than amounts deductible under Section 38 of the Taxation of Chargeable Gains Act 1992, (b) Godiva UK Limited has not, without the prior consent of H.M. Treasury, caused, permitted or entered into a transaction specified in Section 765 of the Income and Corporation Taxes Act 1988, (c) Godiva UK Limited has not entered into or been a party to any schemes or arrangements designed partly or wholly for the purposes of avoiding or deferring any liability to pay any Taxes, and (d) Godiva UK Limited is and has at all times been resident in the United Kingdom for Tax purposes and is not and has not been treated as resident or as having a branch or permanent establishment in any other jurisdiction for any Taxation purpose (including under any double taxation treaty or agreement).

 

Section 8.02.  Filing of Returns and Other Tax Covenants. (a) The parties acknowledge and agree that, for U.S. federal income Tax purposes, the taxable years of the U.S. Acquired Company and the Subsidiary will close as of the end of the Closing Date.  Seller shall include all items of income, gain, loss, deduction and credit of the U.S. Acquired Company and the Subsidiary attributable to the short period that ends on the Closing Date in, and shall timely file or cause to be timely filed, the U.S. consolidated federal income Returns of the Seller Group and shall be responsible for the payment of any Taxes due with respect thereto.  With respect to income or franchise Taxes other than U.S. federal income Taxes, the parties agree to take all reasonable actions as may be required to close the taxable period of the Acquired Companies and the Subsidiary as of the close of business on the Closing Date, and, except as otherwise required by applicable Law, Seller shall be responsible for filing any Return for any short taxable period that ends on the Closing Date and shall pay any and all Taxes due with respect to such Returns.  All Returns described in this Section 8.02(a) shall be prepared in a manner consistent with prior practice.  Seller shall provide Buyer with copies of the portions of such Returns that relate to the U.S. Acquired Company and the Subsidiary at least forty-five (45) days prior to the due date (including extensions) for filing thereof for Buyer’s review.  If Buyer objects to any portion of such Returns, Seller and Buyer shall attempt in good faith to resolve any disagreements prior to the due date for filing.  In the event that Seller and Buyer are unable to resolve any dispute with respect to such Return at least ten (10) days prior to the due date for filing, such dispute shall be resolved pursuant to Section 8.06(h), which resolution shall be binding on the parties.

 

(b)    Seller shall timely file or cause to be timely filed all Returns of the Acquired Companies and the Subsidiary due on or before the Closing Date and shall pay all Taxes shown as due on such Returns.  Seller shall timely file or cause to be timely filed all Returns of the Acquired Companies and the Subsidiary due after the Closing Date that include only taxable periods ending on or before the Closing Date, and shall pay all Taxes shown as due on such Returns.  All Returns described in this Section 8.02(b) shall be prepared in a manner consistent with

 

 

prior practice.  Seller shall provide Buyer with copies of such Returns at least forty-five (45) days prior to the due date (including extensions) for filing thereof for Buyer’s review.  If Buyer objects to any portion of such Returns, Seller and Buyer shall attempt in good faith to resolve any disagreements prior to the due date for filing.  In the event that Seller and Buyer are unable to resolve any dispute with respect to such Return at least ten (10) days prior to the due date for filing, such dispute shall be resolved pursuant to Section 8.06(h), which resolution shall be binding on the parties.

 

(c)    Buyer shall timely file or cause to be timely filed all Returns (other than those Returns described in Section 8.02(a) or (b)) required to be filed by each Acquired Company and the Subsidiary after the Closing Date and, subject to the right to payment from Seller under Section 8.06, shall pay or cause to be paid all Taxes shown as due thereon.  With respect to any Return covering a taxable period that begins before but ends after the Closing Date, such Return shall be prepared in a manner consistent with past practice and shall be submitted by Buyer to Seller at least forty-five (45) days prior to the due date (including extensions) of such Return for Seller’s review.  If Seller objects to any portion of such Returns, Seller and Buyer shall attempt in good faith to resolve any disagreements regarding such Returns prior to the due date for filing.  In the event that Seller and Buyer are unable to resolve any dispute with respect to such Return at least ten (10) days prior to the due date for filing, such dispute shall be resolved pursuant to Section 8.06(h), which resolution shall be binding on the parties.

 

(d)    Not later than ten (10) days prior to the due date for the payment of Taxes on any Returns that Buyer has the responsibility to cause to be filed pursuant to Section 8.02(c), Seller shall pay to Buyer the amount of Taxes owed by Seller pursuant to the provisions of Section 8.06.  No payment pursuant to this Section 8.02(d) shall excuse Seller from its indemnification obligations pursuant to Section 8.06 if the amount of Taxes pursuant to a Final Determination for the Pre-Closing Tax Period covered by any such Return exceeds the amount of Seller’s payment under this Section 8.02(d) with respect to the Return.  If a dispute arises with respect to a Return or the amount of Taxes for which Seller is responsible and is not resolved at least ten (10) days prior to the due date of the Return, Seller shall pay to Buyer the amount that Buyer deems to be due and owing (and the Return shall be filed in the manner that Buyer deems correct); provided, however, that if the independent accounting firm resolving the dispute pursuant to Section 8.06(h) determines that the amount of Taxes that are the responsibility of Seller differs from the amount paid to Buyer, Seller shall pay to Buyer, or Buyer shall pay to Seller, the amount necessary to reflect the independent accounting firm’s determination plus interest at the Reference Rate.  Buyer shall cause each Acquired Company and the Subsidiary to file any

 

 

amended Returns permitted by Law to reflect the final determination by the independent accounting firm and pay the Taxes shown as due on any such Return.

 

(e)  Any and all existing Tax sharing agreements between any Acquired Company or the Subsidiary and any member of the Seller Group shall be terminated as of the Closing Date.  After such date neither any Acquired Company nor the Subsidiary, on the one hand, and Seller or any Affiliate of Seller, on the other hand, shall have any further rights or liabilities thereunder.

 

Section 8.03.  Transfer Taxes.  All transfer, filing, recording, documentary, sales, use, stamp, registration and other similar Taxes and fees (including any penalties and interest) incurred in connection with the purchase and sale of the Acquired Companies pursuant to this Agreement (including any real property transfer Tax and any similar Tax) shall be shared equally by Buyer and Seller, each of whom shall indemnify and hold harmless each other from its share of such Taxes and shall cooperate in filing all necessary Returns and other documentation with respect to all such Taxes and fees.  Each of Seller and Buyer will, and will cause its Affiliates to, join in the execution of any Returns and other documentation as may required by Law.  In particular, with respect to the shares of Godiva France SA, Buyer shall register the Short Form Stock Purchase Agreement with the French Tax Administration no later than thirty (30) days after the Closing Date.  In addition, no later than ten (10) days from the date of registration with the French Tax Administration, Buyer shall deliver to Seller an original of the Short Form Stock Purchase Agreement duly registered as proof of compliance with the registration formalities as required by French law. 

 

Section 8.04.  Cooperation on Tax Matters.  Buyer and Seller agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to any Acquired Company or the Subsidiary as is reasonably necessary for the filing of any Return, for the preparation for any audit, and for the prosecution or defense of any claim, suit or proceeding relating to any proposed adjustment.  Buyer and Seller agree to retain or cause to be retained all books and records pertinent to any Acquired Company and the Subsidiary until the applicable period for assessment under applicable Law (giving effect to any and all extensions or waivers) has expired, and to abide by or cause the abidance with all record retention agreements entered into with any Taxing Authority.  Each Acquired Company and the Subsidiary agrees to give Seller reasonable notice prior to transferring, discarding or destroying any such books and records relating to Tax matters and, if Seller so requests, the Acquired Company or the Subsidiary shall allow Seller to take possession of such books and records.  Buyer and Seller shall cooperate with each other in the conduct of any audit or other proceedings involving any Acquired Company or the Subsidiary for any Tax

 

 

purposes and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this subsection.

 

Section 8.05.  Section 338(h)(10) Election. (a) Upon the request of Buyer, Seller shall join with Buyer in making an election under Section 338(h)(10) of the Code and the Treasury Regulations and any corresponding or similar elections under state or local tax law with respect to the U.S. Acquired Company (and the Subsidiary if designated by Buyer) (collectively, the “Section 338(h)(10) Election”).  Any such request shall be made by Buyer in writing no later than thirty (30) days from the Closing Date.

 

(b)  Except as provided in Section 8.05(d), Buyer shall be responsible for the preparation and filing of all forms and documents required to effectuate the Section 338(h)(10) Election.  Seller shall execute (or cause to be executed) and deliver to Buyer a Form 8023 and such additional documents or forms as are reasonably requested to complete properly the Section 338(h)(10) Election at least ten (10) days prior to the date such Section 338(h)(10) Election is to be filed.

 

(c)  Buyer and Seller shall file, and shall cause their Affiliates to file, all Returns and statements, forms and schedules in connection therewith in a manner consistent with the Section 338(h)(10) Election and shall take no position contrary thereto unless required to do so by applicable Law.

 

(d)  Within thirty (30) days after notifying the Seller of its intent to make a Section 338(h)(10) Election, Buyer shall deliver to Seller a statement (the “Section 338(h)(10) Allocation Statement”) allocating the ADSP (as such term is defined in Treasury Regulations Section 1.338-4) (the “Aggregate Deemed Sales Price”) of the assets of the U.S. Acquired Company (and, if applicable, the Subsidiary) in accordance with the Treasury Regulations promulgated under Section 338(h)(10).  Seller shall have the right to review the Section 338(h)(10) Allocation Statement.  If within thirty (30) days after receipt of the Section 338(h)(10) Allocation Statement Seller notifies Buyer in writing that the allocation of one or more items reflected in the Section 338(h)(10) Allocation Statement is not a reasonable allocation, Buyer and Seller will negotiate in good faith to resolve such dispute.  If no such notice is received from Seller, Seller shall be deemed to have agreed to the Section 338(h)(10) Allocation Statement.  If a notice is received and Buyer and Seller fail to resolve such dispute within thirty (30) days, such resolution shall be resolved pursuant to Section 8.06(h), which resolution shall be binding on the parties.  The Section 338(h)(10) Allocation Statement shall be adjusted as required by Law pursuant to the above procedures.  Buyer and Seller agree to act in accordance with the Section 338(h)(10) Allocation Statement in the preparation, filing and audit of any Return.

 

Section 8.06.  Indemnification Provisions. (a) Seller hereby indemnifies Buyer against and agrees to hold it harmless from (i) any Taxes (other than transfer Taxes, which are specifically addressed in Section 8.03 hereof) of any Acquired Company or the Subsidiary relating to any and all Pre-Closing Tax Periods; (ii) any Taxes resulting from, arising out of, based on or relating to the Section 338(h)(10) Election (for the avoidance of doubt, Taxes for this purpose shall not include any reduction in any Tax Asset (or increase in Taxes as a result of such reduction) of Buyer or any of its Affiliates as a result of a redetermination of the Aggregate Deemed Sales Price agreed to by Buyer and Seller or pursuant to a Final Determination); (iii) any Taxes resulting from, arising out of, based on or relating to, the transactions contemplated by this Agreement as a result of Seller failing to pay any such Taxes for which the Seller has primary liability; (iv) any Taxes of an Acquired Company or of the Subsidiary resulting from a breach of the representations in Section 8.01 hereof; and (v) liabilities, costs and expenses (including, without limitation, reasonable expenses of investigation and attorneys’ fees and expenses), arising out of or incident to the imposition, assessment or assertion of any Tax described in the foregoing clauses (i), (ii), (iii) and (iv), including those incurred in the contest in good faith in appropriate proceedings relating to the imposition, assessment or assertion of any such Tax, in each case incurred or suffered by Buyer, any of its Affiliates or, effective upon the Closing, any Acquired Company or the Subsidiary; provided, however, that Seller shall be obligated to make payments to Buyer pursuant to this Section 8.06(a) only to the extent that the amount that would otherwise be payable by Seller pursuant to this Section 8.06(a) in respect of any Acquired Company or Subsidiary (notwithstanding this proviso) exceeds the aggregate amount of the provisions for Taxes reflected on Exhibit B as of the Closing Date attributable to that Acquired Company or Subsidiary.

 

(b)   For purposes of this Agreement, Taxes of any Acquired Company and the Subsidiary that relate to any taxable period that includes but does not end on the Closing Date (a “Straddle Period”) will be apportioned between the period of the Straddle Period that begins before the Closing Date and ends on the Closing Date (the “Pre-Closing Straddle Period”) and the period of the Straddle Period that extends from the day after the Closing Date to the end of the Straddle Period (the “Post-Closing Straddle Period”) in accordance with this Section 8.06(b).  The portion of such Tax attributable to the Pre-Closing Straddle Period shall (i) in the case of any Taxes other than sales or use taxes, value-added taxes, employment taxes, withholding taxes, and any Tax based on, or measured by income, receipts or profits earned during a Straddle Period, shall be deemed equal to the amount that would be payable for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the Pre-Closing Straddle Period, and denominator of which is the number of days in the Straddle Period, and (ii) in the case of any sales or use taxes, value-added taxes, employment taxes, withholding taxes, and any Tax based on or measured by income, receipts

 

 

or profits earned during a Straddle Period, be deemed equal to the amount that would be payable if the Straddle Period ended on and included the Closing Date.  For purposes of this Section 8.06(b), any exemption, deduction, credit or other item that is calculated on an annual basis will be allocated to the Pre-Closing Straddle Period on a pro rata basis by multiplying the total amount of such items for the Straddle Period by a fraction, the numerator of which is the number of calendar days in the Pre-Closing Straddle Period, and the denominator of which is the number of calendar days in the Straddle Period.  The portion of Tax attributable to a Post-Closing Straddle Period shall be calculated in a corresponding manner.

 

(c)  Buyer covenants that it will not cause or permit any Acquired Company, the Subsidiary or any Affiliate of Buyer, except for the making of the Section 338(h)(10) Election, (i) to take any action on the Closing Date other than in the ordinary course of business, including but not limited to the distribution of any dividend or the effectuation of any redemption, that could give rise to any Tax liability or reduce any Tax Asset of the Seller Group or give rise to any loss of the Seller or the Seller Group under this Agreement, (ii) to make any election or deemed election under Section 338(g) of the Code (other than any Section 338(g) election that is a result of the Section 338(h)(10) Election) or any comparable provision under applicable Law with respect to any Acquired Company or the Subsidiary, or (iii) to make or change any Tax election or amend any Return that results in any increased Tax liability or reduction of any Tax Asset of Seller or the Seller Group in respect of any Pre-Closing Tax Period.  Buyer further covenants that it will not cause or permit any Acquired Company, the Subsidiary or any Affiliate of Buyer to take any action that (iv) would have the effect with respect to the Seller or any of its Affiliates of reducing accumulated earnings and profits as determined under Section 1248 of the Code of any Acquired Company that is a controlled foreign corporation for U.S. federal income tax purposes or (v) is outside the ordinary course of business and that could result in the recognition by Seller or any of its Affiliates of income or greater amounts of income under Section 951 of the Code than they would otherwise realize if a closing of the books had taken place on the Closing Date.  Notwithstanding Section 8.06(a), Buyer agrees that Seller is to have no liability for any Tax resulting from any action referred to in clauses (i) to (v) of this Section 8.06(c), and agrees to indemnify and hold harmless Seller and its Affiliates against (x) any such Tax resulting from such actions, (y) any Tax incurred or suffered by Seller or any of its Affiliates, arising out of a breach of any other covenant or agreement of Buyer contained in this Article 8, and (z) any liabilities, costs, expenses (including, without limitation, reasonable expenses of investigation and attorney’s fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax described in clause (x) or (y) above, including those incurred in the contest in good faith in appropriate proceedings relating to the

 

 

imposition, assessment or assertion of any such Tax, in each case incurred or suffered by Seller or any of its Affiliates.

 

(d)  Buyer shall promptly pay or cause to be paid to Seller any refunds of Taxes and interest thereon received by Buyer, any Affiliate of Buyer, any Acquired Company, or the Subsidiary attributable to Taxes paid by Seller, any Acquired Company or the Subsidiary (or any predecessor or Affiliate of Seller) with respect to any Pre-Closing Tax Period, but only to the extent that such refund was not reflected in the Net Working Capital as of the Closing Date on Exhibit B.  If, in lieu of receiving any such refund, any Acquired Company or the Subsidiary reduces a Tax liability with respect to a Post-Closing Tax Period or increases a Tax Asset that can be carried forward to a Post-Closing Tax Period, Buyer shall promptly pay or cause to be paid to Seller the amount of such reduction in Tax liability or the amount of any benefit resulting from such increase in Tax Assets, as the case may be.  The benefit resulting from an increase in a Tax Asset shall be calculated on the same basis as applicable to Tax Benefits pursuant to Section 8.06(e).

 

(e)  If Seller’s indemnification obligation under this Section 8.06 arises in respect of an adjustment which makes allowable to Buyer, any of its Affiliates or, effective upon the Closing, any Acquired Company or the Subsidiary any deduction, amortization, exclusion from income or other allowance which would not, but for such adjustment, be allowable (a “Tax Benefit”), then any payment by Seller to Buyer shall be an amount equal to (x) the amount otherwise due but for this Section 8.06(e), minus (y) the present value of the Tax Benefit multiplied by the maximum federal, state, or foreign, as the case may be, corporate Tax rate in effect at the time the relevant adjustment is made or, in the case of a credit, by 100 percent. The present value referred to in the preceding sentence shall be determined using a discount rate equal to the mid-term applicable U.S. federal rate in effect at the time the relevant adjustment is made and assuming that the Tax Benefit will be used at the earliest date or dates allowable by applicable Law.  For the avoidance of doubt, any adjustment that is not amortizable, depreciable or deductible shall not be  considered a Tax Benefit and no Tax Benefit will be deemed realized with respect to the U.S. Acquired Company or the Subsidiary if a 338(h)(10) Election is made (pursuant to Section 8.05 of this Agreement) with respect thereto.

 

(f)  Any payment by Buyer or Seller pursuant to this Article 8 shall be made not later than thirty (30) days after receipt by Seller or Buyer of written notice from the other.  Such notice shall state the specific Tax that has been paid by Buyer, Seller, or any of its respective Affiliates, the amount thereof and the indemnity payment requested.

 

(g)    If any claim (including any audit) or demand with respect to Taxes is received by either party for which the other party may reasonably be expected to be liable pursuant to this Section 8.06 (a “Tax Claim”), the party receiving such claim or demand (the “Tax Indemnified Party”) shall promptly notify the other party (the “Tax Indemnifying Party”) in writing of such Tax Claim; provided, however, that the failure to give the Tax Indemnifying Party notice as provided herein shall not relieve the Tax Indemnifying Party of its obligations under this Section 8.06 except to the extent that the Tax Indemnifying Party is actually and materially prejudiced thereby.  The Tax Indemnifying Party shall have the right, at its own expense, to defend any Tax Claim; provided that the Tax Indemnified Party shall have the right to participate in the audit or defense of such Tax Claim and to be consulted with respect thereto, and the Tax Indemnifying Party shall not settle a Tax Claim without the consent of the Tax Indemnified Party if such settlement would have an adverse effect on the Tax Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned.  Notwithstanding anything herein to the contrary, Buyer shall have no right to defend (but may participate in) any Tax Claim with respect to Seller Group’s consolidated U.S. federal, state or local income Return.  In the event that the Tax Indemnifying Party fails to prosecute a Tax Claim, the Tax Indemnified Party may, upon notice to and at the expense of the Tax Indemnifying Party, assume the defense of any such Tax Claim.

 

(h)  Any dispute as to any matter covered in this Article 8 shall be resolved by an independent accounting firm mutually acceptable to Seller and Buyer.  The fees and expenses of such accounting firm shall be borne equally by Seller and Buyer.  If any dispute with respect to a Return is not resolved prior to the due date for filing such Return, such Return shall be filed in the manner which the party responsible for preparing such Return deems correct.

 

Section 8.07.  Canadian Withholding and Section 116 Certificate.  Seller shall deliver to Buyer a certificate issued pursuant to section 116 of the Income Tax Act (Canada) (the “ITA”) in respect of the sale of the shares of Godiva Chocolatier of Canada LTD (the “Canadian Shares”) to Buyer, provided that:

 

(a)  if a certificate issued by the Minister of National Revenue pursuant to subsection 116(2) of the ITA in respect of the disposition of the Canadian Shares to Buyer, specifying a certificate limit in an amount which is not less than the portion of the Closing Payment allocable to the Canadian Shares, is not delivered to Buyer at or before the Closing, Buyer shall be entitled to withhold from the Closing Payment payable to Seller at the Closing 25% of the portion of the Closing Payment allocable to the Canadian Shares,

 

(b)  if, prior to the 29th day after the end of the month in which the Closing occurs (or such later time if the Canada Revenue Agency confirms in

 

 

writing and in a form that is reasonably acceptable to Buyer that Buyer may continue to hold the amount withheld pursuant to Section 8.07(a) hereof), Seller delivers to Buyer:

 

(i)  a certificate issued by the Minister of National Revenue under subsection 116(2) of the ITA in respect of the disposition of the Canadian Shares to Buyer, Buyer shall promptly pay to Seller the lesser of (i) the amount withheld pursuant to Section 8.07(a) hereof and (ii) the amount withheld pursuant to Section 8.07(a) hereof less 25% of the amount, if any, by which the portion of the Closing Payment allocable to the Canadian Shares exceeds the amount specified in such certificate as the certificate limit, together with any interest earned on the amount so withheld to the date of such payment (less any applicable withholding Tax), or

 

(ii)  a certificate issued by the Minister of National Revenue under subsection 116(4) of the ITA in respect of the disposition of the Canadian Shares to Buyer, Buyer shall promptly pay the amount withheld pursuant to Section 8.07(a) hereof to Seller, together with any interest earned thereon (less any applicable withholding Tax), and

 

(c)  if Buyer has withheld an amount pursuant to Section 8.07(a) hereof and Seller does not deliver to the Buyer, prior to the 29th day after the end of the month in which the Closing occurs (or such later time if the Canada Revenue Agency confirms in writing and in a form that is reasonably acceptable to Buyer that Buyer may continue to hold the amount withheld pursuant to Section 8.07(a) hereof):

 

(i)  a certificate issued by the Minister of National Revenue under subsection 116(2) of the ITA in respect of the disposition of the Canadian Shares to Buyer specifying a certificate limit equal to or greater than the portion of the Closing Payment allocable to the Canadian Shares, or

 

(ii)  a certificate issued by the Minister of National Revenue under subsection 116(4) of the ITA in respect of the disposition of the Canadian Shares to Buyer,

 

Buyer shall remit to the Receiver General of Canada the amount required to be remitted pursuant to subsection 116(5) of the ITA (and the amount so remitted shall be credited to the Buyer as a payment to Seller on account of the Closing Payment) and Buyer shall pay to Seller any remaining portion of the amount withheld pursuant to Section 8.07(a) hereof, together with interest earned on the amount withheld pursuant to Section 8.07(a) hereof, prior to such remittance (less

 

 

any applicable withholding Tax).  Seller agrees to indemnify Buyer for any Tax for which Buyer is assessed as a consequence of failure to timely remit amounts withheld under Section 8.07(a) due to reliance on the written confirmation from the Canadian Revenue Agency (as referred to in Section 8.07(b) and (c) of this Agreement).  This Section 8.07 shall apply with such modifications as are necessary to any adjustments to the Closing Payment.

 

 

 

Section 9.01.  Employees. Buyer acknowledges that it shall continue the employment of all of the employees of the Acquired Companies and the Subsidiary (other than employees receiving long-term disability benefits) as of the Closing Date (collectively, the “Transferred Employees”).

 

Section 9.02.  Employee Benefits. (a) For a period of at least 12 months (or 18 months in the case of Transferred Employees located in Europe) following the Closing Date, Buyer shall procure that each Transferred Employee shall be employed on terms and conditions (whether contractual or otherwise) and provided with employee benefits that are comparable in the aggregate to those provided to such Transferred Employees immediately prior to the Closing Date; and shall provide each Transferred Employee with cash compensation that is comparable to the cash compensation of such Transferred Employee immediately prior to the Closing Date.

 

(b)  With respect to those Employee Plans and International Plans in which Transferred Employees were, immediately prior to the Closing Date, entitled to participate that are not sponsored by an Acquired Company (the “Seller Plans”), such Transferred Employees shall, effective as of the Closing Date, cease to participate in and accrue benefits thereunder.  Buyer shall establish or designate or cause the relevant Acquired Company to establish employee benefits plans for the benefit of Transferred Employees (the “Buyer Plans”) that provide benefits that satisfy the requirements of Section 9.02(a).  Buyer shall give Transferred Employees full credit for purposes of eligibility and vesting and benefit accrual (other than benefit accrual under a defined benefit plan) under the Buyer Plans as was recognized under the Seller Plans.  As between the Seller Plans and the Buyer Plans, the Seller Plans shall be responsible for all claims for benefits incurred by Transferred Employees under the Seller Plans up to the Closing Date, and Buyer Plans shall be responsible for all claims for benefits incurred by Transferred Employees on and after the Closing Date.  

 

(c)  With respect to any Buyer Plans that are welfare benefit plans, Buyer shall (i) cause there to be waived any eligibility requirements or pre-

 

 

existing condition limitations and (ii) give effect to, in determining any deductible and maximum out-of-pocket limitations, amounts paid by such Transferred Employees with respect to similar plans maintained by Seller.

 

(d)  Within 120 days after the Closing Date, Buyer shall cover Transferred Employees located in the United States under one or more defined contribution plans and trusts intended to qualify under Section 401(a) and Section 501(a) of the Code (collectively, the “Buyer DC Plan”).  To the extent relevant, Buyer shall permit such Transferred Employees to make a “direct rollover” of their account balances (including loan account balances) under the Seller’s defined contribution plans that are Employee Plans to the Buyer DC Plan.  Seller and Buyer shall reasonably cooperate in good faith to effect such transfers or distributions as soon as practicable after the Closing Date.

 

(e)  Effective as of the Closing Date, Buyer shall establish or designate or shall cause Godiva Canada to establish a retirement savings plan for the benefit of Transferred Employees of Godiva Canada (the “Buyer RSP”).  The Buyer RSP shall provide benefits to Transferred Employees of Godiva Canada that are comparable in the aggregate to the benefits such Transferred Employees received under the Pension Plan for Employees of Campbell Company of Canada.

 

(f)  Buyer shall, for a period of at least 12 months (or 18 months in the case of Transferred Employees located in Europe) following the Closing Date, maintain a severance pay practice, program or arrangement for the benefit of each Transferred Employee that provides for the severance benefits set forth on Section 9.02(f) of the Disclosure Schedule or, if better, the severance benefits provided under Buyer’s severance pay practice, program or arrangement for the benefit of its similarly situated employees.

 

(g)  With respect to any accrued but unused vacation time to which any Transferred Employee is entitled pursuant to the vacation policy applicable to such Transferred Employee immediately prior to the Closing Date (the “Vacation Policy”), Buyer shall allow such Transferred Employee to use such accrued vacation; provided, however, that if Buyer deems it necessary to disallow such employee from taking such accrued vacation, Buyer shall be liable for and pay in cash to each such Transferred Employee an amount equal to such vacation time in accordance with the terms of the Vacation Policy; provided, further, that Buyer shall be liable for and pay in cash an amount equal to such accrued vacation time to any Transferred Employee whose employment terminates for any reason other than cause prior to the close of business on the last calendar day of the year during which the Closing Date occurs, unless otherwise required by applicable Law.

 

(h)  On and for 90 days after the Closing Date, Buyer shall not, and shall cause the Acquired Companies and the Subsidiary not to, implement any

 

 

employment terminations, layoffs or hours reductions or take any other action that could reasonably be expected to result in the Seller, Campbell or any of their Affiliates having a liability under the Worker Adjustment and Retraining Notification Act of 1988 (“WARN”) or a similar State or foreign Law as the result of a “mass layoff” or a “plant closing” as such terms are defined by WARN or as the result of a similar event under such State or foreign Law.

 

(i)  Buyer shall be solely responsible for satisfying the obligations imposed under Section 4980B of the Code and Sections 601-608 of ERISA (collectively, “COBRA”) (or any similar obligation under any applicable Law) with respect to all Transferred Employees.

 

(j)   For each Transferred Employee who is eligible to participate in a long-term incentive plan or program maintained or sponsored by Seller or one of the Acquired Companies, Buyer shall provide a comparable long-term incentive compensation opportunity, or provide an offsetting cash payment to any Transferred Employee whose eligibility is not so maintained.  For Transferred Employees whose eligibility to receive long-term incentive compensation is maintained by Buyer pursuant to the preceding sentence, “comparable” shall mean a target long-term incentive level of at least 85% of Seller’s or any Acquired Company’s level as of the Closing Date for a period of 12 months (or 18 months in the case of Transferred Employees located in Europe).

 

(k)   The provisions of this Article 9 shall apply to and in respect of the Transferred Employees only for so long as the Transferred Employees continue in the employment of the Buyer, any Acquired Company, the Subsidiary, any Affiliate or any person to whom the whole or any part of the Acquired Companies is transferred.

 

(l)  The provisions of this Article 9 are solely for the benefit of the parties to this Agreement, and Buyer agrees that if Buyer is in breach of any of the provisions of this Article 9, Seller may, at its discretion, and without limitation, seek to procure compliance with such provisions by Buyer by applying to the court for damages and/or specific performance; provided, however, that no employee or former employee of any of the Acquired Companies or the Subsidiary shall be regarded for any purpose as a third-party beneficiary of the Agreement.

 

 

 

Section 10.01.  Conditions to Obligations of Buyer and Seller.  The obligations of Buyer and Seller to consummate the Closing are subject to the

 

 

satisfaction (or, to the extent permitted by Law, waiver by the relevant party) of the following conditions:

 

(a)  Any applicable waiting period under the HSR Act relating to the transactions contemplated by this Agreement shall have expired or been terminated.

 

(b)    The Turkish Competition Authority shall have granted clearance or approval with respect to the transactions contemplated by this Agreement.

 

(c)    No order, injunction or decree issued by any court or agency of competent jurisdiction preventing the consummation of the Closing shall be in effect.  No Law shall have been enacted, entered, promulgated or enforced that prohibits or makes illegal the consummation of the Closing.

 

Section 10.02.  Conditions to Obligation of Buyer.  The obligation of Buyer to consummate the Closing is subject to the satisfaction (or, to the extent permitted by Law, waiver by Buyer) of the following further conditions:

 

(a)    (1) Seller shall have performed or complied in all material respects with all of the agreements and covenants required by this Agreement to be performed or complied with by them at or prior to the Closing Date, (2) the representations and warranties of Seller contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto, disregarding any qualifications or exceptions contained in such representations or warranties relating to materiality or Material Adverse Effect, shall be true and accurate at and as of the Closing Date, as if made at and as of such time (other than any representations and warranties that address matters as of a specific date, which shall be true and accurate as of such date), except for any inaccuracies which, individually or in the aggregate, would not, and would not reasonably be expected to, constitute a Material Adverse Effect and (3) Buyer shall have received a certificate signed by an executive officer of Seller to the foregoing effect.

 

(b)    Seller shall have caused the following documents to be delivered to Buyer:

 

(i)  such documents regarding the corporate organization, existence, authorization and similar matters relating to each of the Acquired Companies or the Subsidiary as Buyer may reasonably request; and

 

(ii)  a certification pursuant to Treasury Regulations Section 1.1445-2(b)(2) signed by Seller to the effect that Seller is not a foreign person.

 

 

(c)    Seller shall have delivered to Buyer the Audited Financial Statements and, except as set forth on Section 10.02(c) of the Disclosure Schedule, such Audited Financial Statements shall not differ in any material and adverse respect from the Unaudited Financial Statements for the corresponding period.  Upon receipt of the Audited Financial Statements, Buyer shall have 10 Business Days to notify Seller in writing that it believes the condition to closing set forth in this Section 10.02(c) has not been satisfied and if Buyer shall not so notify Seller, the condition to closing set forth in this Section 10.02(c) shall be deemed satisfied.

 

Section 10.03.  Conditions to Obligation of Seller.  The obligation of Seller to consummate the Closing is subject to the satisfaction (or, to the extent permitted by Law, waiver by Seller) of the following further conditions:

 

(a)    (1) Buyer shall have performed or complied in all material respects with all of the agreements, covenants and conditions required by this Agreement  to be performed or complied with by it on or prior to the Closing Date, (2) the representations and warranties of Buyer contained in this Agreement and in any certificate or other writing delivered by Buyer pursuant hereto shall be true and accurate in all material respects at and as of the Closing Date, as if made at and as of such time (other than any representations and warranties that address matters as of a specific date, which shall be true and accurate as of such date) and (3) Seller shall have received a certificate signed by an executive officer of Buyer to the foregoing effect.

 

(b)    Buyer shall have caused (i) documents regarding the corporate organization, existence, authorization and similar matters relating to Buyer as Seller may reasonably request.

 

 

 

Section 11.01.  Survival.  The representations and warranties of Seller and Buyer contained in this Agreement shall survive until 18 months after the Closing Date, except that: (i) the representations and warranties contained in Section 3.01, Section 3.02, Section 3.05, Section 3.06, Section 3.21, Section 4.01, Section 4.02, Section 4.07 and Section 4.08 shall survive indefinitely or until the latest date permitted by Law and (ii) the representations and warranties contained in Article 8 shall survive Closing until 90 days after the expiration of the applicable statute of limitations with respect to the particular matter that is the subject matter thereof.  Except as otherwise provided in this Agreement, the covenants and agreements of Buyer and Seller contained in this Agreement shall survive Closing and shall continue in full force and effect indefinitely or for the shorter period

 

 

specified in this Agreement.  Any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to Section 11.01, if notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time.

 

Section 11.02.  Indemnification. (a) From and after Closing, Seller hereby indemnifies Buyer and its Affiliates (including the Acquired Companies and the Subsidiary) against and agrees to hold each of them harmless from any and all damage, loss, liability and expense (including, without limitation, reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding) (“Damages”) actually incurred or suffered by Buyer or any of its Affiliates arising out of or resulting from any inaccuracy or breach of any representation or warranty (determined, except with respect to Section 3.08, Section 3.10, Section 3.11 and Section 3.23, without regard to any qualification or exception contained therein relating to materiality or Material Adverse Effect or any similar qualification or standard) (each such inaccuracy and breach, a “Warranty Breach”) or breach of covenant or agreement made or to be performed by Seller pursuant in this Agreement (except for representations, covenants or agreements contained in Article 8 of this Agreement as to which the provisions of Article 8 shall govern); provided that with respect to indemnification by Seller for Warranty Breaches pursuant to this Section 11.02 (other than Warranty Breaches with respect to Section 3.01, Section 3.02, Section 3.06, Section 3.05 and Section 3.07(b)), (i) Seller shall not be liable with respect to a Warranty Breach unless the amount of Damages resulting from such Warranty Breach exceeds $25,000 (“De Minimis Claim”), (ii) Seller shall not be liable unless the aggregate amount of Damages with respect to all Warranty Breaches, other than De Minimis Claims, exceeds $2,125,000 and then only to the extent of such excess and (iii) Seller’s maximum liability shall not exceed $144,500,000; provided further that any claim for indemnification pursuant to Section 8.06 shall not be subject to the limitations on indemnification set forth in this Section 11.02.

 

(b)  From and after Closing, Buyer hereby indemnifies Seller and its Affiliates against and agrees to hold each of them harmless from any and all Damages actually incurred or suffered by Seller or any of its Affiliates arising out of or related in any way to any Warranty Breach or breach of a covenant, in each case of Buyer contained in this Agreement.

 

(c)  Notwithstanding any of the provisions of this Article 11, Section 8.06 shall provide the exclusive remedy for Buyer’s and its Affiliates’ (and, after the Closing, the Acquired Companies’ and the Subsidiary’s) recovery of any Tax

 

 

from Seller and its Affiliates, and the procedures set forth in Section 8.06 shall govern any claim for indemnification under such provision.

 

Section 11.03.  Procedures. (a) Other than with respect to an indemnification claim for Taxes (which shall be governed by Article 8), the party seeking indemnification under Section 11.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request.  The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.

 

(b)  The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section 11.03, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense.

 

(c)  If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (1) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (2) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose.  The fees and expenses of such separate counsel shall be paid by the Indemnified Party; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if (i) so requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable.

 

(d)  Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.

 

(e)  Each Indemnified Party must mitigate to the extent required under applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement.  If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.

 

(f)  Each Indemnified Party shall use reasonable best efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 11.02.

 

Section 11.04.  Limitation on Damages. (a) The amount of any Damages payable under Section 11.02 by the Indemnifying Party shall be net of (1) any amounts actually recovered by the Indemnified Party under applicable insurance policies (net of any deductibles) and (2) any Tax Benefit (as defined in Section 8.06(e)) available to the Indemnified Party arising from the incurrence or payment of any such Damages; provided, that, in the case of clause (1), the Indemnified Party shall assert and pursue its rights under applicable insurance policies and if the Indemnified Party recovers amounts under any applicable insurance policies after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of such recovery.

 

(b)  The Indemnifying Party shall not be liable under Section 11.02 for any (1) Damages relating to any matter to the extent that (A) there is included in the Closing Statement an identifiable liability or reserve (including liabilities or reserves that are not individual line items, but are identifiable components of a line item) relating to such matter (it being understood that the Indemnifying Party shall be liable for the excess of the Damages over such identifiable liability or reserve) or (B) the Indemnified Party had otherwise been compensated for such matter pursuant to the Closing Payment adjustment mechanism contemplated by Section 2.05 and Section 2.06 (it being understood that the Indemnifying Party shall be liable only for the excess of the Damages over such Closing Payment adjustment compensation), (2) special, punitive, indirect or consequential Damages (including diminution in value of the Shares) or (3) Damages for lost profits.

 

Section 11.05.  Assignment of Claims.  If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Damages pursuant to Section 11.02 and the Indemnified Party could have recovered all or a part of such

 

 

Damages from a third party (other than from Buyer, Seller, the Acquired Companies, the Subsidiary, or any Affiliate of or any current or former employee or agent of any such Persons) (a “Potential Contributor”) based on the underlying Claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment.

 

Section 11.06.  Exclusivity.  Except as specifically set forth in this Agreement and with respect to fraud and intentional misrepresentation, Buyer waives any rights and claims Buyer and its Affiliates may have against Seller and its Affiliates, whether in law or in equity, relating to the Acquired Companies or the Subsidiary or any of their respective assets, business or operations, the Shares or the transactions contemplated hereby, and Seller waives any such rights and claims Seller and its Affiliates may have against Buyer and its Affiliates, the Acquired Companies or the Subsidiary.  The rights and claims waived hereby include claims for contribution or other rights of recovery arising out of or relating to any Environmental Law, claims for breach of contract, breach of representation or warranty, negligent misrepresentation and all other claims for breach of duty.  After the Closing, Article 8 and Section 11.02 will provide the exclusive remedy for any misrepresentation, breach of warranty, covenant or other agreement (other than those contained in Section 2.06, Section 5.02 and Section 6.02), or other claim arising out of this Agreement or the transactions contemplated hereby.  Notwithstanding the foregoing, it is understood that nothing herein shall prohibit any party hereto from exercising its rights to seek equitable relief with respect to a breach of covenant or agreement under any Transaction Document.

 

Section 11.07.  Closing Payment Adjustment.  Any amount paid by Seller or Buyer under Article 8 or Article 11 will be treated as an adjustment to the Closing Payment.

 

 

 

Section 12.01.  Grounds for Termination.  This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Closing:

 

(a)  by mutual written agreement of Seller and Buyer;

 

(b)  by either Seller or Buyer if the Closing shall not have been consummated by April 18, 2008 (the “Termination Date”); provided that neither 

 

 

of the parties may terminate this Agreement pursuant to this clause if the Closing shall not have been consummated by the Termination Date by reason of the failure of such party or any of its Affiliates to perform in all material respects any of its or their respective covenants or agreements contained in this Agreement;

 

(c)  by either Buyer, on the one hand, or Seller, on the other hand, if a material breach of any provision of this Agreement has been committed by the other party or any of its Affiliates and such breach is not capable of being satisfied or cured by the Termination Date or if any representation or warranty of the other party has become untrue such that the conditions set forth in Article 10 hereof would not be satisfied and such breach is incapable of being cured; or

 

(d)  by either Seller or Buyer if consummation of the Closing would violate any nonappealable final order, decree or judgment of any court or governmental body having competent jurisdiction.

 

The party desiring to terminate this Agreement pursuant to Section 12.01(b)-(d) shall give notice of such termination to the other party.

 

Section 12.02.  Effect of Termination.  If this Agreement is terminated as permitted by Section 12.01, such termination shall be without liability of any party (or any Affiliate, stockholder, director, officer, employee, agent, consultant or representative of such party) to any other party to this Agreement; provided that if such termination shall result from the (1) failure of any party to this Agreement to perform a covenant or agreement contained in this Agreement or (2) a knowing or willful breach by any party hereto of any representation or warranty contained herein made as of the date of this Agreement, such party shall be fully liable for any and all Damages incurred or suffered by any other party as a result of such failure or breach.  The provisions of Section 6.01 (it being understood that all provisions of the Confidentiality Agreement will remain in full force and effect), Section 12.02 and Article 13 shall survive any termination hereof pursuant to Section 12.01.

 

 

Section 13.01. Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given,

 

if to Buyer, to:

Yildiz Holding A.S.

Ferah Cad. Cesme Sk. No:2/4

B. Camlica/Uskudar 34692 Istanbul

Attention: Baris Oner

Fax: +90 524 25 24

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP

100 Federal Street, 34^th Floor

Boston, Massachusetts 02110

Attention: Kevin J. Sullivan

Fax: (617) 772-8333

if to Seller, to:

Campbell Investment Company

c/o Campbell Soup Company

One Campbell Place

Camden, New Jersey 08103-1799

Attention: Corporate Secretary

Fax: (856) 342-3889

with a copy (which shall not constitute notice) to:

Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Attention: David L. Caplan

Fax: (212) 450-3800

or to such other address or telecopy number and with such other copies, as such party may hereafter specify for the purpose by notice to the other parties.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.  Each such notice, request or other communication shall be effective (1) if given by telecopy, when such telecopy is transmitted to the telecopy number specified in this Section and

 

 

evidence of receipt is received or (2) if given by any other means, upon delivery or refusal of delivery at the address specified in this Section 13.01.

 

Section 13.02.  Amendments and Waivers. (a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.

 

(b)  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

 

Section 13.03.  Expenses.  Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

 

Section 13.04.  Successors and Assigns.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  No party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement by operation of law or otherwise without the consent of each other party hereto; provided, that Buyer may assign this Agreement and any or all rights or obligations hereunder (including Buyer’s rights to purchase the Shares and Buyer’s rights to seek indemnification hereunder) to any one or more Affiliates of Buyer; provided, further, that no such assignment shall release Buyer from any liability or obligation under this Agreement, interfere with, delay or create any additional obligations with respect to the Closing or negatively impact, in any manner, the transactions contemplated hereby or Campbell or any of its Affiliates.

 

Section 13.05.  Governing Law.  This Agreement shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law rules of such state.

 

Section 13.06.  Jurisdiction.  Except as otherwise expressly provided in this Agreement, any controversy, dispute or claim arising under or in connection with this Agreement (including, without limitation, the existence, validity, interpretation or breach hereof and any claim based on contract, tort or statute) shall be resolved by a binding arbitration, to be held in London, England pursuant to the Rules of Arbitration (the “ICC Rules”) of the International Chamber of Commerce (the “ICC”) in accordance with the then-prevailing ICC Rules.  The parties agree that the arbitrators shall have the authority to make an award of

 

 

specific performance, in addition to any other remedy to which such party is entitled at law or in equity.  Each of the parties hereby irrevocably consents to the jurisdiction of the ICC and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue in London, England is an inconvenient forum.  Each party shall bear its own expenses incurred in connection with arbitration and the fees and expenses of the arbitrators shall be shared equally by the parties involved in the dispute and advanced by them from time to time as required.  The decision of the arbitrators in any such proceeding will be final and binding and not subject to judicial review and final judgment may be entered upon such an award in any court of competent jurisdiction, but entry of such judgment will not be required to make such award effective.  Any action against any party hereto ancillary to arbitration pursuant to this Section 13.06 (as determined by the arbitrators), including any action for provisional or conservatory measures or action to enforce an arbitration award or any judgment entered by any court in respect of any thereof may be brought in any court of competent jurisdiction located within London, England, in the United States District Court for the Southern District of New York or any New York State court sitting in New York City, Borough of Manhattan or in any other court in any jurisdiction in the world, and the parties hereto hereby irrevocably submit to the jurisdiction of such courts.  The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such action brought in such court or any defense of inconvenient forum for the maintenance of such action.  Each of the parties hereto agrees that a judgment in any such action may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 13.06  shall be deemed effective service of process on such party.

 

Section 13.07.  Counterparts; Third Party Beneficiaries.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  Each Transaction Document shall become effective when each party thereto shall have received a counterpart thereof signed by the other party thereto.  No Transaction Document is intended to confer upon any Person other than the parties thereto any rights or remedies hereunder.

 

Section 13.08.  Entire Agreement.  The Transaction Documents, together with the Confidentiality Agreement, constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.  No representation, inducement,

 

 

promise, understanding, condition or warranty not set forth herein has been made or relied upon by any party hereto.

 

Section 13.09.  Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

Section 13.10.  Disclosure Schedules.  The parties acknowledge and agree that (1) the Disclosure Schedule to this Agreement may include certain items and information solely for informational purposes for the convenience of Buyer and (2) the disclosure by Seller of any matter in the Disclosure Schedule shall not be deemed to constitute an acknowledgment by Seller that the matter is required to be disclosed by the terms of this Agreement or that the matter is material.  If any section of the Disclosure Schedule discloses an item or information in such a way as to make its relevance to the disclosure required by another section of the Disclosure Schedule reasonably apparent, the matter shall be deemed to have been disclosed in such other section of the Disclosure Schedule, notwithstanding the omission of an appropriate cross-reference to such other section of the Disclosure Schedule.  The parties further acknowledge and agree that neither the specification in any provision of this Agreement nor the inclusion in any section of the Disclosure Schedule of any dollar amount or any item or matter is intended to imply or shall be deemed to constitute an acknowledgment by Seller that such amount (or higher or lower amount) or such item or matter (or other items or matters) are or are not (x) material or rise to the level of any materiality or Material Adverse Effect standard for purposes of this Agreement or the Disclosure Schedule, (y) in the ordinary course of business of the Acquired Companies or the Subsidiary or (z) required to be disclosed by the terms of this Agreement.  No party shall use the fact of any such specification or inclusion (or lack thereof) in any dispute or controversy among the parties as to the foregoing matters.  Capitalized terms used in the Disclosure Schedule but not defined therein shall have the meaning assigned to such term in this Agreement.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.