Common use of Failure by the Company to Acquire Shares Clause in Contracts

Failure by the Company to Acquire Shares. (a) If the closing of the sale and purchase of the Put Shares or the Call Shares, as the case may be, is not consummated on the date described in Section 8.3(a)(i), (a)(ii), (a)(iv) or (b) or Section 8.6(a)(i), (a)(ii), (a)(iv) or (b), as the case may be, by reason that necessary consents and approvals of Governmental Authorities for such sale and purchase have not been obtained (despite all reasonable best efforts to procure such approvals having been used by the Company and the Unilever Stockholder), then: (i) the closing of the sale and purchase of such Put Shares or Call Shares under Section 8.3 or 8.6, respectively, shall be conditional upon obtaining such consents and approvals; and (ii) (A) prior to the Eighth Year, the Company and the Unilever Stockholder shall continue to use all reasonable best efforts to obtain the consents and approvals of any Governmental Authority necessary for the purchase of the Subject Securities as referred to in Section 8.3(a)(iii) and 8.6(a)(iii), including taking such measures as shall be reasonably required, having regard to the interests of the Business, to obtain such consents and approvals, and (B) from and after the Eighth Year, the Company shall use its best efforts to structure the purchase by it of the Put Shares or Call Shares so as to facilitate, or avoid the necessity of, obtaining such consents and approvals, and the Unilever Stockholder will cooperate with and assist the Company in such efforts. (b) If, by the Eighth Year, the Company shall have failed to purchase the Put Securities or the Call Securities for cash pursuant to Section 8.4(a)(ii) or otherwise pursuant to Section 7.3(g) or (h): (i) if the Share Price has not previously been fixed pursuant to Section 8.4(d), 8.5(a) or 8.5(b), the aggregate Share Price as determined in accordance with Sections 8.9, 8.10 and 8.11 for the Remaining Unilever Shares (such determination to be made on the next applicable exercise of the Put Option or Call Option) shall be fixed as of the Eighth Year; and (ii) the Unilever Stockholder’s sole and exclusive remedies (other than remedies for breach of the provisions of this Agreement) shall be, subject in each case to Sections 8.13(c) and 10.17, and without derogation of the Unilever Stockholder’s rights under the Exit Note and, subject to Section 10.16(b), the Note, to elect to: (A) negotiate a sale of any or all of the Unilever Shares and the Notes then beneficially owned by any Unilever Group Member to a third party (a “Unilever Sale”); provided, that (1) the Holdco Stockholder shall have the right to approve any purchaser of such Shares which approval shall not be unreasonably withheld or delayed, and (2) any sale of such Shares shall be made free of the restrictions under Article VII; provided, further, that in connection with any proposed Unilever Sale the Holdco Stockholder shall review, at the Unilever Stockholder’s reasonable request, a list of proposed purchasers and designate which such purchasers it approves and shall otherwise cooperate in all reasonable respects in connection with such Unilever Sale, including by preparing preliminary and final offering memoranda, assisting the Unilever Stockholder in the preparation of a confidential information package for delivery to approved potential purchasers, participating in investors’ meetings, conferences and telephone calls, providing information and projections prepared by the Company or its advisors, and allowing reasonable access to such purchasers to conduct due diligence, subject to customary confidentiality undertakings; (B) cause the Company to arrange for the private placement and sale of Shares (including any or all of the Unilever Shares) or other securities of the Company (a “Private Placement”); provided, that (1) the Company shall consult with the Unilever Stockholder as to the most appropriate method of sale, having regard to the mutual interests of the Company and the Holdco Stockholders in effecting an efficient and orderly sale, but shall otherwise be free to conduct the sale as it sees fit, (2) the Holdco Stockholder shall have the right to approve any purchaser of such Shares or securities, which approval shall not be unreasonably withheld or delayed, and (3) any sale of such Shares shall be made free of the restrictions under Article VII; and/or (C) cause the Company to arrange for the sale of part or all of (1) the Company’s Japanese business, divisions, assets or Subsidiaries (including through the public sale of securities) (the “Japan Business”), and/or (2) Polymer or its assets or Subsidiaries (the “Polymer Business”), and/or (3) if the Polymer Business is sold (in whole or in part) prior to the eighth anniversary of the Closing Date, such other business or division, or businesses or divisions, of the Company, or their assets or Subsidiaries, the identity of which shall be determined by the Company in accordance with Section 8.13(e) (each a “Subsidiary Sale” and, together with a Unilever Sale and a Private Placement, the “Eighth Year Actions”); in each case as shall be necessary to yield Net Proceeds sufficient to pay the Share Price. Subject to subsection (d) of this Section 8.13, upon the Unilever Stockholder making any such election(s) (which shall be communicated to the Company by written notice), the Company shall use its best efforts to consummate such Eighth Year Actions no later than the maturity date of the Exit Note and shall, and shall be entitled to, take all reasonable steps on its part as are necessary to carry out such Eighth Year Actions, including structuring such Eighth Year Actions to avoid any violation of the DGCL. It is expressly agreed and understood that any and all other remedies (other than remedies described in this Section 8.13 and remedies for breach of the provisions of this Agreement), whether arising by this Agreement, any other agreement or operation of law, and whether at law or in equity (other than the Unilever Stockholder’s remedy of enforcing the Exit Note and, subject to subsection (d) of this Section 8.13 and Section 10.16(b), the Note), are hereby expressly waived by Unilever and each other Unilever Stockholder. (c) Subject to subsection (d) of this Section 8.13, Net Proceeds of Eighth Year Actions received before the Eighth Year Put Closing Date shall be applied to the Put Price, and such Net Proceeds received after the Eighth Year Put Closing Date shall be applied to pay or prepay amounts owing under the Exit Note. For the avoidance of doubt, Net Proceeds of any sales of Unilever Shares pursuant to Unilever Sales and/or Private Placements shall belong to the Unilever Stockholder. (d) Each of the Stockholders hereby agrees, consents to and acknowledges that the undertaking and agreements of the Company in this Section 8.13 (other than undertakings and agreements relating to sales of Unilever Shares), including without limitation, any Additional Divestiture, are subject to the provisions of the Financing Agreements, including restrictions on the sale of assets, restrictions on liens, sale of equity, repurchase of Shares and the requirement to apply the proceeds of certain sales of capital stock and assets to the reduction of Indebtedness, and the rights, remedies and powers of the lenders or noteholders (other than any Unilever Group Member) and holders of collateral thereunder, and to the exercise thereof by such lenders, noteholders and holders with respect to the Company and its Subsidiaries and that no right or remedy provided in this Section 8.13 or any provision of this Section 8.13 (other than undertakings and agreements relating to sales of Unilever Shares) shall not be exercised or enforced unless and until such exercise or enforcement shall not conflict with, violate or result in a breach of any of the Financing Agreements. (e) After May 3, 2009 and prior to May 3, 2010, the Company, through a committee of the Company’s Board of Directors comprised solely of Independent Directors (the “Special Committee”), shall identify (the “Additional Divestiture Identification”) one or more businesses or divisions of the Company or their assets or Subsidiaries (other than the Japan Business and the Polymer Business), which, if sold, would yield Net Proceeds sufficient to enable the Company to pay the Put Price for the Put Securities in connection with a previously exercised Put Option, taking into account the anticipated Net Proceeds that can reasonably be expected from the disposal of the Japan Business (“Additional Divestiture”). The Special Committee shall engage an investment banking firm of national standing to assist with such Additional Divestiture Identification and shall undertake its evaluation and make its recommendations in good faith, taking into account such factors as it shall deem appropriate in its business judgment. Without prejudice to any liability of the Company pursuant to this Agreement, no director of the Company shall have any liability to the Unilever Stockholder or any Relevant Transferee for any acts or omissions taken or failed to be taken in connection with or related to an Additional Divestiture or the Additional Divestiture Identification.

Failure by the Company to Acquire Shares. (a) If the closing of the sale and purchase of the Put Shares or the Call Shares, as the case may be, is not consummated on the date described in Section 8.3(a)(i), (a)(ii), (a)(iv) or (b) or Section 8.6(a)(i), (a)(ii), (a)(iv) or (b), as the case may be, by reason that necessary consents and approvals of Governmental Authorities for such sale and purchase have not been obtained (despite all reasonable best efforts to procure such approvals having been used by the Company and the Unilever Stockholder), then: (i) the closing of the sale and purchase of such Put Shares or Call Shares under Section 8.3 or 8.6, respectively, shall be conditional upon obtaining such consents and approvals; and (ii) (A) prior to the Eighth Year, the Company and the Unilever Stockholder shall continue to use all reasonable best efforts to obtain the consents and approvals of any Governmental Authority necessary for the purchase of the Subject Securities as referred to in Section 8.3(a)(iii) and 8.6(a)(iii), including taking such measures as shall be reasonably required, having regard to the interests of the Business, to obtain such consents and approvals, and (B) from and after the Eighth Year, the Company shall use its best efforts to structure the Table of Contents purchase by it of the Put Shares or Call Shares so as to facilitate, or avoid the necessity of, obtaining such consents and approvals, and the Unilever Stockholder will cooperate with and assist the Company in such efforts. (b) If, by the Eighth Year, the Company shall have failed to purchase the Put Securities or the Call Securities for cash pursuant to Section 8.4(a)(ii) or otherwise pursuant to Section 7.3(g) or (h): (i) if the Share Price has not previously been fixed pursuant to Section 8.4(d), 8.5(a) or 8.5(b), the aggregate Share Price as determined in accordance with Sections 8.9, 8.10 and 8.11 for the Remaining Unilever Shares (such determination to be made on the next applicable exercise of the Put Option or Call Option) shall be fixed as of the Eighth Year; and (ii) the Unilever Stockholder’s sole and exclusive remedies (other than remedies for breach of the provisions of this Agreement) shall be, subject in each case to Sections 8.13(c) and 10.17, and without derogation of the Unilever Stockholder’s rights under the Exit Note and, subject to Section 10.16(b), the Note, to elect to: (A) negotiate a sale of any or all of the Unilever Shares and the Notes then beneficially owned by any Unilever Group Member to a third party (a “Unilever Sale”); provided, that (1) the Holdco Stockholder shall have the right to approve any purchaser of such Shares which approval shall not be unreasonably withheld or delayed, and (2) any sale of such Shares shall be made free of the restrictions under Article VII; provided, further, that in connection with any proposed Unilever Sale the Holdco Stockholder shall review, at the Unilever Stockholder’s reasonable request, a list of proposed purchasers and designate which such purchasers it approves and shall otherwise cooperate in all reasonable respects in connection with such Unilever Sale, including by preparing preliminary and final offering memoranda, assisting the Unilever Stockholder in the preparation of a confidential information package for delivery to approved potential purchasers, participating in investors’ meetings, conferences and telephone calls, providing information and projections prepared by the Company or its advisors, and allowing reasonable access to such purchasers to conduct due diligence, subject to customary confidentiality undertakings; (B) cause the Company to arrange for the private placement and sale of Shares (including any or all of the Unilever Shares) or other securities of the Company (a “Private Placement”); provided, that (1) the Company shall consult with the Unilever Stockholder as to the most appropriate method of sale, having regard to the mutual interests of the Company and the Holdco Stockholders in effecting an efficient and orderly sale, but shall otherwise be free to conduct the sale as it sees fit, (2) the Holdco Stockholder shall have the right to approve any purchaser of such Shares or securities, which approval shall not be unreasonably withheld or delayed, and (3) any sale of such Shares shall be made free of the restrictions under Article VII; and/or (C) cause the Company to arrange for the sale of part or all of (1) the Company’s Japanese business, divisions, assets or Subsidiaries (including through the public sale of securities) (the “Japan Business”), and/or (2) Polymer or its assets or Subsidiaries (the “Polymer Business”), and/or (3) if the Polymer Business is sold (in whole or in part) prior to the eighth anniversary of the Closing Date, such other business or division, or businesses or divisions, of the Company, or their assets or Subsidiaries, the identity of which shall be determined by the Company in accordance with Section 8.13(e) (each a “Subsidiary Sale” and, together with a Unilever Sale and a Private Placement, the “Eighth Year Actions”); Table of Contents in each case as shall be necessary to yield Net Proceeds sufficient to pay the Share Price. Subject to subsection (db)(iv) of this Section 8.13, upon the Unilever Stockholder making any such election(s) (which shall be communicated to the Company by written notice), the Company shall use its best efforts to consummate such Eighth Year Actions no later than the maturity date of the Exit Note and shall, and shall be entitled to, take all reasonable steps on its part as are necessary to carry out such Eighth Year Actions, including structuring such Eighth Year Actions to avoid any violation of the DGCL. It is expressly agreed and understood that any and all other remedies (other than remedies described in this Section 8.13 and remedies for breach of the provisions of this Agreement), whether arising by this Agreement, any other agreement or operation of law, and whether at law or in equity (other than the Unilever Stockholder’s remedy of enforcing the Exit Note and, subject to subsection (db)(iv) of this Section 8.13 and Section 10.16(b), the Note), are hereby expressly waived by Unilever and each other Unilever Stockholder. (ciii) Subject to subsection (dc) of this Section 8.13, Net Proceeds of Eighth Year Actions received before the Eighth Year Put Closing Date shall be applied to the Put Price, and such Net Proceeds received after the Eighth Year Put Closing Date shall be applied to pay or prepay amounts owing under the Exit Note. For the avoidance of doubt, Net Proceeds of any sales of Unilever Shares pursuant to Unilever Sales and/or Private Placements shall belong to the Unilever Stockholder. (div) Each of the Stockholders hereby agrees, consents to and acknowledges that the undertaking and agreements of the Company in this Section 8.13 (other than undertakings and agreements relating to sales of Unilever Shares), including without limitation, any Additional Divestiture, ) are subject to the provisions of the Financing Agreements, including restrictions on the sale of assets, restrictions on liens, sale of equity, repurchase of Shares and the requirement to apply the proceeds of certain sales of capital stock and assets to the reduction of Indebtedness, and the rights, remedies and powers of the lenders or noteholders (other than any Unilever Group Member) and holders of collateral thereunder, and to the exercise thereof by such lenders, noteholders and holders with respect to the Company and its Subsidiaries and that no right or remedy provided in this Section 8.13 or any provision of this Section 8.13 (other than undertakings and agreements relating to sales of Unilever Shares) shall not be exercised or enforced unless and until such exercise or enforcement shall not conflict with, violate or result in a breach of any of the Financing Agreements. (e) After May 3, 2009 and prior to May 3, 2010, the Company, through a committee of the Company’s Board of Directors comprised solely of Independent Directors (the “Special Committee”), shall identify (the “Additional Divestiture Identification”) one or more businesses or divisions of the Company or their assets or Subsidiaries (other than the Japan Business and the Polymer Business), which, if sold, would yield Net Proceeds sufficient to enable the Company to pay the Put Price for the Put Securities in connection with a previously exercised Put Option, taking into account the anticipated Net Proceeds that can reasonably be expected from the disposal of the Japan Business (“Additional Divestiture”). The Special Committee shall engage an investment banking firm of national standing to assist with such Additional Divestiture Identification and shall undertake its evaluation and make its recommendations in good faith, taking into account such factors as it shall deem appropriate in its business judgment. Without prejudice to any liability of the Company pursuant to this Agreement, no director of the Company shall have any liability to the Unilever Stockholder or any Relevant Transferee for any acts or omissions taken or failed to be taken in connection with or related to an Additional Divestiture or the Additional Divestiture Identification.

Failure by the Company to Acquire Shares. (a) If the closing of the sale and purchase of the Put Shares or the Call Shares, as the case may be, is not consummated on the date described in Section 8.3(a)(i), (a)(ii), (a)(iv) or (b) or Section 8.6(a)(i), (a)(ii), (a)(iv) or (b), as the case may be, by reason that necessary consents and approvals of Governmental Authorities for such sale and purchase have not been obtained (despite all reasonable best efforts to procure such approvals having been used by the Company and the Unilever Stockholder), then: (i) the closing of the sale and purchase of such Put Shares or Call Shares under Section 8.3 or 8.6, respectively, shall be conditional upon obtaining such consents and approvals; and (ii) (A) prior to the Eighth Year, the Company and the Unilever Stockholder shall continue to use all reasonable best efforts to obtain the consents and approvals of any Governmental Authority necessary for the purchase of the Subject Securities as referred to in Section 8.3(a)(iii) and 8.6(a)(iii), including taking such measures as shall be reasonably required, having regard to the interests of the Business, to obtain such consents and approvals, and (B) from and after the Eighth Year, the Company shall use its best efforts to structure the purchase by it of the Put Shares or Call Shares so as to facilitate, or avoid the necessity of, obtaining such consents and approvals, and the Unilever Stockholder will cooperate with and assist the Company in such efforts. (b) If, by the Eighth Year, the Company shall have failed to purchase the Put Securities or the Call Securities for cash pursuant to Section 8.4(a)(ii) or otherwise pursuant to Section 7.3(g) or (h): (i) if the Share Price has not previously been fixed pursuant to Section 8.4(d), 8.5(a) or 8.5(b), the aggregate Share Price as determined in accordance with Sections 8.9, 8.10 and 8.11 for the Remaining Unilever Shares (such determination to be made on the next applicable exercise of the Put Option or Call Option) shall be fixed as of the Eighth Year; and (ii) the Unilever Stockholder’s sole and exclusive remedies (other than remedies for breach of the provisions of this Agreement) shall be, subject in each case to Sections 8.13(c) and 10.17, and without derogation of the Unilever Stockholder’s rights under the Exit Note and, subject to Section 10.16(b), the Note, to elect to: (A) negotiate a sale of any or all of the Unilever Shares and the Notes then beneficially owned by any Unilever Group Member to a third party (a “Unilever Sale”); provided, that (1) the Holdco Stockholder shall have the right to approve any purchaser of such Shares which approval shall not be unreasonably withheld or delayed, and (2) any sale of such Shares shall be made free of the restrictions under Article VII; provided, further, that in connection with any proposed Unilever Sale the Holdco Stockholder shall review, at the Unilever Stockholder’s reasonable request, a list of proposed purchasers and designate which such purchasers it approves and shall otherwise cooperate in all reasonable respects in connection with such Unilever Sale, including by preparing preliminary and final offering memoranda, assisting the Unilever Stockholder in the preparation of a confidential information package for delivery to approved potential purchasers, participating in investors’ meetings, conferences and telephone calls, providing information and projections prepared by the Company or its advisors, and allowing reasonable access to such purchasers to conduct due diligence, subject to customary confidentiality undertakings; (B) cause the Company to arrange for the private placement and sale of Shares (including any or all of the Unilever Shares) or other securities of the Company (a “Private Placement”); provided, that (1) the Company shall consult with the Unilever Stockholder as to the most appropriate method of sale, having regard to the mutual interests of the Company and the Holdco Stockholders in effecting an efficient and orderly sale, but shall otherwise be free to conduct the sale as it sees fit, (2) the Holdco Stockholder shall have the right to approve any purchaser of such Shares or securities, which approval shall not be unreasonably withheld or delayed, and (3) any sale of such Shares shall be made free of the restrictions under Article VII; and/or (C) cause the Company to arrange for the sale of part or all of (1) the Company’s Japanese business, divisions, assets or Subsidiaries (including through the public sale of securities) (the “Japan Business”), and/or (2) Polymer or its assets or Subsidiaries (the “Polymer Business”), and/or (3) if the Polymer Business is sold (in whole or in part) prior to the eighth anniversary of the Closing Date, such other business or division, or businesses or divisions, of the Company, or their assets or Subsidiaries, the identity of which shall be determined by the Company in accordance with Section 8.13(e) (each a “Subsidiary Sale” and, together with a Unilever Sale and a Private Placement, the “Eighth Year Actions”); in each case as shall be necessary to yield Net Proceeds sufficient to pay the Share Price. Subject to subsection (d) of this Section 8.13, upon the Unilever Stockholder making any such election(s) (which shall be communicated to the Company by written notice), the Company shall use its best efforts to consummate such Eighth Year Actions no later than the maturity date of the Exit Note and shall, and shall be entitled to, take all reasonable steps on its part as are necessary to carry out such Eighth Year Actions, including structuring such Eighth Year Actions to avoid any violation of the DGCL. It is expressly agreed and understood that any and all other remedies (other than remedies described in this Section 8.13 and remedies for breach of the provisions of this Agreement), whether arising by this Agreement, any other agreement or operation of law, and whether at law or in equity (other than the Unilever Stockholder’s remedy of enforcing the Exit Note and, subject to subsection (d) of this Section 8.13 and Section 10.16(b), the Note), are hereby expressly waived by Unilever and each other Unilever Stockholder. (c) Subject to subsection (d) of this Section 8.13, Net Proceeds of Eighth Year Actions received before the Eighth Year Put Closing Date shall be applied to the Put Price, and such Net Proceeds received after the Eighth Year Put Closing Date shall be applied to pay or prepay amounts owing under the Exit Note. For the avoidance of doubt, Net Proceeds of any sales of Unilever Shares pursuant to Unilever Sales and/or Private Placements shall belong to the Unilever Stockholder. (d) Each of the Stockholders hereby agrees, consents to and acknowledges that the undertaking and agreements of the Company in this Section 8.13 (other than undertakings and agreements relating to sales of Unilever Shares), including without limitation, any Additional Divestiture, are subject to the provisions of the Financing Agreements, including restrictions on the sale of assets, restrictions on liens, sale of equity, repurchase of Shares and the requirement to apply the proceeds of certain sales of capital stock and assets to the reduction of Indebtedness, and the rights, remedies and powers of the lenders or noteholders (other than any Unilever Group Member) and holders of collateral thereunder, and to the exercise thereof by such lenders, noteholders and holders with respect to the Company and its Subsidiaries and that no right or remedy provided in this Section 8.13 or any provision of this Section 8.13 (other than undertakings and agreements relating to sales of Unilever Shares) shall not be exercised or enforced unless and until such exercise or enforcement shall not conflict with, violate or result in a breach of any of the Financing Agreements. (e) After May 3, 2009 and prior to May 3, 2010, the Company, through a committee of the Company’s Board of Directors comprised solely of Independent Directors (the “Special CommitteeComittee”), shall identify (the “Additional Divestiture Identification”) one or more businesses or divisions of the Company or their assets or Subsidiaries (other than the Japan Business and the Polymer Business), which, if sold, would yield Net Proceeds sufficient to enable the Company to pay the Put Price for the Put Securities in connection with a previously exercised Put Option, taking into account the anticipated Net Proceeds that can reasonably be expected from the disposal of the Japan Business (“Additional Divestiture”). The Special Committee shall engage an investment banking firm of national standing to assist with such Additional Divestiture Identification and shall undertake its evaluation and make its recommendations in good faith, taking into account such factors as it shall deem appropriate in its business judgment. Without prejudice to any liability of the Company pursuant to this Agreement, no director of the Company shall have any liability to the Unilever Stockholder or any Relevant Transferee for any acts or omissions taken or failed to be taken in connection with or related to an Additional Divestiture or the Additional Divestiture Identification.