Common use of Sharing of Profits Clause in Contracts

Sharing of Profits. (a) For the purposes of this Section 3.5 only, the ------------------ term "Stockholders" refers solely to Wine Partners, L.P., TPG Partners, L.P. TPG Parallel I, L.P. and TPG GenPar, L.P. (the "TPG Stockholders"). If (i) the Merger Agreement is terminated in circumstances in which Parent is entitled to a fee pursuant to Section 8.2(b) (ii) thereof and (ii) not later than one year from the date of termination of the Merger Agreement, (1) the Company consummates a merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar transaction involving, or any sale of all or substantially all of the assets or equity securities of, the Company and its Subsidiaries (a "Business -------- Combination"), (2) the Company enters into an Acquisition Agreement providing ----------- for a Business Combination, which Business Combination is ultimately consummated, irrespective of when such consummation occurs, (3) a TPG Stockholder disposes of any or all of its Subject Shares to any person not an affiliate or an associate of Parent or Purchaser or to the Company or any affiliate thereof in connection with a Business Combination, or (4) a TPG Stockholder realizes proceeds in respect of its Subject Shares as a result of a distribution to such TPG Stockholder by the Company following the sale of substantially all of the Company's assets in connection with a Business Combination (each, a "Subsequent Transaction"), in each case at a per share ---------------------- price or with equivalent per share proceeds (including, in the case of clause (4), the market value of the Shares after giving effect to such transactions), as the case may be (the "Subsequent Price"), having a value in excess of the Per ---------------- Share Amount, then the TPG Stockholder will promptly pay to Parent an amount equal to one-half of the product of (x) the excess of the Subsequent Price over the Per Share Amount multiplied by (y) the number of Subject Shares beneficially owned (other than beneficially owned solely by reason of having a right to vote) by such TPG Stockholder at the time a Business Combination is consummated (in the case of clauses (1), (2) and (3)) or disposal by such TPG Stockholder (in the case of clause (4)). Any non-cash consideration received by the TPG Stockholder in a Subsequent Transaction will be valued at fair market value at the time of receipt thereof by the TPG Stockholder. In the event of any stock dividends, stock splits, recapitalizations, combinations, exchanges of shares or the like or any other action that would have the effect of changing the TPG Stockholder's ownership of the Company's capital stock or other securities, the Per Share Amount will be appropriately adjusted for the purpose of this Section 3.5(a). (b) Indemnification (i) If Shares are purchased in the Offer pursuant to --------------- the terms of the Merger Agreement, Parent and Purchaser hereby jointly and severally agree to indemnify fully, hold harmless and defend the TPG Stockholders and their respective successors and assigns solely in such party's capacity as a stockholder of the Company (collectively, the "Indemnitees") from and against any and all costs and expenses (including, but not limited to, reasonable attorneys' fees and the costs and expenses of investigating, defending and litigating any claims), judgments, fines, losses, claims, damages and liabilities to the extent sustained or incurred by any Indemnitee in connection with any action, suit or proceeding by or on behalf of any stockholder of the Company, other than any Indemnitee (a "Claim") arising out of, relating to or based upon this Agreement or the Merger Agreement or the transactions contemplated hereby or thereby; provided that the Indemnitee acted in good faith in connection with the matters that are the subject of such Claim. Notwithstanding anything contained in this Section 3.5(b), no claim for indemnity under this Section 3.5(b) may be asserted by any Indemnitee arising or resulting from (1) any breach by the Company of any representation, warranty or covenant of the Company in the Merger Agreement or (2) any breach by any party to this Agreement (other than by Parent or Purchaser) of any representation, warranty or covenant in this Agreement. (ii) Each Indemnitee shall give Parent notice in writing as soon as practicable after Indemnitee receives notice of a Claim made against Indemnitee for which indemnification will or could be sought under this Section 3.5(b). Written notice to Parent shall be given in accordance with Section 6.6. The failure to notify Parent as required pursuant to this paragraph (ii) will not relieve Parent or Purchaser from any liability hereunder unless and to the extent Parent or Purchaser did not otherwise learn of such action and such failure results in the forfeiture by Parent or Purchaser of any significant right or defense. In addition, Indemnitee shall give Parent such information and cooperation as Parent may reasonably request in connection with the defense of any Claim for which indemnification is sought under this Section 3.5(b). (iii) Parent and Purchaser will be entitled to participate in the defense of any Claim for which indemnification will or could be sought under this Section 3.5(b) or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee, provided that in the event that (1) the use of counsel chosen by Parent and Purchaser to represent Indemnitee would present such counsel with an actual or potential conflict, (2) the named parties in any such Claim (including any impleaded parties) include or is reasonably likely to include both Parent or Purchaser and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to it that are different from or in addition to those available to Parent or Purchaser, or (3) any such representation by Parent or Purchaser would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain separate counsel (but not more than one law firm for all Indemnitees plus, if applicable, local counsel in respect of any particular Claim) at Parent's expense. Parent and Purchaser will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes an unconditional release of the Indemnitee from all liability on any claims that are the subject matter of or are related to such Claim. (iv) Purchaser and Parent will not be liable under this Section 3.5(b) to make any payment to an Indemnitee to the extent Indemnitee has otherwise actually received payment (net of expenses incurred in connection therewith) under any insurance policy, the certificate of incorporation or bylaws of the Company or otherwise of the amounts otherwise indemnifiable hereunder.

Sharing of Profits. (a) For the purposes of this Section 3.5 only, the ------------------ term "Stockholders" refers solely to Wine Partners, L.P., TPG Partners, L.P. TPG Parallel I, L.P. and TPG GenPar, L.P. (the "TPG Stockholders"). If (i) the Merger Agreement is terminated in circumstances in which Parent is entitled to a fee pursuant to Section 8.2(b) (ii) thereof and (ii) not later than one year from the date of termination of the Merger Agreement, (1) the Company consummates a merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar transaction involving, or any sale of all or substantially all of the assets or equity securities of, the Company and its Subsidiaries (a "Business -------- CombinationBUSINESS COMBINATION"), (2) the Company enters into an Acquisition Agreement providing ----------- for a Business Combination, which Business Combination is ultimately consummated, irrespective of when such consummation occurs, (3) a TPG Stockholder disposes of any or all of its Subject Shares to any person not an affiliate or an associate of Parent or Purchaser or to the Company or any affiliate thereof in connection with a Business Combination, or (4) a TPG Stockholder realizes proceeds in respect of its Subject Shares as a result of a distribution to such TPG Stockholder by the Company following the sale of substantially all of the Company's assets in connection with a Business Combination (each, a "Subsequent TransactionSUBSEQUENT TRANSACTION"), in each case at a per share ---------------------- price or with equivalent per share proceeds (including, in the case of clause (4), the market value of the Shares after giving effect to such transactions), as the case may be (the "Subsequent PriceSUBSEQUENT PRICE"), having a value in excess of the Per ---------------- Share Amount, then the TPG Stockholder will promptly pay to Parent an amount equal to one-half of the product of (x) the excess of the Subsequent Price over the Per Share Amount multiplied by (y) the number of Subject Shares beneficially owned (other than beneficially owned solely by reason of having a right to vote) by such TPG Stockholder at the time a Business Combination is consummated (in the case of clauses (1), (2) and (3)) or disposal by such TPG Stockholder (in the case of clause (4)). Any non-cash consideration received by the TPG Stockholder in a Subsequent Transaction will be valued at fair market value at the time of receipt thereof by the TPG Stockholder. In the event of any stock dividends, stock splits, recapitalizations, combinations, exchanges of shares or the like or any other action that would have the effect of changing the TPG Stockholder's ownership of the Company's capital stock or other securities, the Per Share Amount will be appropriately adjusted for the purpose of this Section 3.5(a). (b) Indemnification (i) If Shares are purchased in the Offer pursuant to --------------- the terms of the Merger Agreement, Parent and Purchaser hereby jointly and severally agree to indemnify fully, hold harmless and defend the TPG Stockholders and their respective successors and assigns solely in such party's capacity as a stockholder of the Company (collectively, the "Indemnitees") from and against any and all costs and expenses (including, but not limited to, reasonable attorneys' fees and the costs and expenses of investigating, defending and litigating any claims), judgments, fines, losses, claims, damages and liabilities to the extent sustained or incurred by any Indemnitee in connection with any action, suit or proceeding by or on behalf of any stockholder of the Company, other than any Indemnitee (a "Claim") arising out of, relating to or based upon this Agreement or the Merger Agreement or the transactions contemplated hereby or thereby; provided that the Indemnitee acted in good faith in connection with the matters that are the subject of such Claim. Notwithstanding anything contained in this Section 3.5(b), no claim for indemnity under this Section 3.5(b) may be asserted by any Indemnitee arising or resulting from (1) any breach by the Company of any representation, warranty or covenant of the Company in the Merger Agreement or (2) any breach by any party to this Agreement (other than by Parent or Purchaser) of any representation, warranty or covenant in this Agreement. (ii) Each Indemnitee shall give Parent notice in writing as soon as practicable after Indemnitee receives notice of a Claim made against Indemnitee for which indemnification will or could be sought under this Section 3.5(b). Written notice to Parent shall be given in accordance with Section 6.6. The failure to notify Parent as required pursuant to this paragraph (ii) will not relieve Parent or Purchaser from any liability hereunder unless and to the extent Parent or Purchaser did not otherwise learn of such action and such failure results in the forfeiture by Parent or Purchaser of any significant right or defense. In addition, Indemnitee shall give Parent such information and cooperation as Parent may reasonably request in connection with the defense of any Claim for which indemnification is sought under this Section 3.5(b). (iii) Parent and Purchaser will be entitled to participate in the defense of any Claim for which indemnification will or could be sought under this Section 3.5(b) or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee, provided that in the event that (1) the use of counsel chosen by Parent and Purchaser to represent Indemnitee would present such counsel with an actual or potential conflict, (2) the named parties in any such Claim (including any impleaded parties) include or is reasonably likely to include both Parent or Purchaser and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to it that are different from or in addition to those available to Parent or Purchaser, or (3) any such representation by Parent or Purchaser would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain separate counsel (but not more than one law firm for all Indemnitees plus, if applicable, local counsel in respect of any particular Claim) at Parent's expense. Parent and Purchaser will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes an unconditional release of the Indemnitee from all liability on any claims that are the subject matter of or are related to such Claim. (iv) Purchaser and Parent will not be liable under this Section 3.5(b) to make any payment to an Indemnitee to the extent Indemnitee has otherwise actually received payment (net of expenses incurred in connection therewith) under any insurance policy, the certificate of incorporation or bylaws of the Company or otherwise of the amounts otherwise indemnifiable hereunder.

Sharing of Profits. (a) For the purposes of this Section 3.5 only, the ------------------ term "Stockholders" refers solely to Wine Partners, L.P., TPG Partners, L.P. TPG Parallel I, L.P. and TPG GenPar, L.P. (the "TPG Stockholders"). If (i) the Merger Agreement is terminated in circumstances in which Parent is entitled to a fee pursuant to Section 8.2(b) (ii) thereof and (ii) not later than one year from the date of termination of the Merger Agreement, (1) the Company consummates a merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar transaction involving, or any sale of all or substantially all of the assets or equity securities of, the Company and its Subsidiaries (a "Business -------- Combination"), (2) the Company enters into an Acquisition Agreement providing ----------- for a Business Combination, which Business Combination is ultimately consummated, irrespective of when such consummation occurs, (3) a TPG Stockholder disposes of any or all of its Subject Shares to any person not an affiliate or an associate of Parent or Purchaser or to the Company or any affiliate thereof in connection with a Business Combination, or (4) a TPG Stockholder realizes proceeds in respect of its Subject Shares as a result of a distribution to such TPG Stockholder by the Company following the sale of substantially all of the Company's assets in connection with a Business Combination (each, a "Subsequent Transaction"), in each case at a per share ---------------------- price or with equivalent per share proceeds (including, in the case of clause (4), the market value of the Shares after giving effect to such transactions), as the case may be (the "Subsequent Price"), having a value in excess of the Per ---------------- Share Amount, then the TPG Stockholder will promptly pay to Parent an amount equal to one-half of the product of (x) the excess of the Subsequent Price over the Per Share Amount multiplied by (y) the number of Subject Shares beneficially owned (other than beneficially owned solely by reason of having a right to vote) by such TPG Stockholder at the time a Business Combination is consummated (in the case of clauses (1), (2) and (3)) or disposal by such TPG Stockholder (in the case of clause (4)). Any non-cash consideration received by the TPG Stockholder in a Subsequent Transaction will be valued at fair market value at the time of receipt thereof by the TPG Stockholder. In the event of any stock dividends, stock splits, recapitalizations, combinations, exchanges of shares or the like or any other action that would have the effect of changing the TPG Stockholder's ownership of the Company's capital stock or other securities, the Per Share Amount will be appropriately adjusted for the purpose of this Section 3.5(a). (b) Indemnification (i) If Shares are purchased in the Offer pursuant to --------------- the terms of the Merger Agreement, Parent and Purchaser hereby jointly and severally agree to indemnify fully, hold harmless and defend the TPG Stockholders and their respective successors and assigns solely in such party's capacity as a stockholder of the Company (collectively, the "Indemnitees") from and against any and all costs and expenses (including, but not limited to, reasonable attorneys' fees and the costs and expenses of investigating, defending and litigating any claims), judgments, fines, losses, claims, damages and liabilities to the extent sustained or incurred by any Indemnitee in connection with any action, suit or proceeding by or on behalf of any stockholder of the Company, other than any Indemnitee (a "Claim") arising out of, relating to or based upon this Agreement or the Merger Agreement or the transactions contemplated hereby or thereby; provided that the Indemnitee acted in good faith in connection with the matters that are the subject of such Claim. Notwithstanding anything contained in this Section 3.5(b), no claim for indemnity under this Section 3.5(b) may be asserted by any Indemnitee arising or resulting from (1) any breach by the Company of any representation, warranty or covenant of the Company in the Merger Agreement or (2) any breach by any party to this Agreement (other than by Parent or Purchaser) of any representation, warranty or covenant in this Agreement. (ii) Each Indemnitee shall give Parent notice in writing as soon as practicable after Indemnitee receives notice of a Claim made against Indemnitee for which indemnification will or could be sought under this Section 3.5(b). Written notice to Parent shall be given in accordance with Section 6.6. The failure to notify Parent as required pursuant to this paragraph (ii) will not relieve Parent or Purchaser from any liability hereunder unless and to the extent Parent or Purchaser did not otherwise learn of such action and such failure results in the forfeiture by Parent or Purchaser of any significant right or defense. In addition, Indemnitee shall give Parent such information and cooperation as Parent may reasonably request in connection with the defense of any Claim for which indemnification is sought under this Section 3.5(b). (iii) Parent and Purchaser will be entitled to participate in the defense of any Claim for which indemnification will or could be sought under this Section 3.5(b) or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee, provided that in the event that (1) the use of counsel chosen by Parent and Purchaser to represent Indemnitee would present such counsel with an actual or potential conflict, (2) the named parties in any such Claim (including any impleaded parties) include or is reasonably likely to include both Parent or Purchaser and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to it that are different from or in addition to those available to Parent or Purchaser, or (3) any such representation by Parent or Purchaser would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain separate counsel (but not more than one law firm for all Indemnitees plus, if applicable, local counsel in respect of any particular Claim) at Parent's expense. Parent and Purchaser will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes an unconditional release of the Indemnitee from all liability on any claims that are the subject matter of or are related to such Claim. (iv) Purchaser and Parent will not be liable under this Section 3.5(b) to make any payment to an Indemnitee to the extent Indemnitee has otherwise actually received payment (net of expenses incurred in connection therewith) under any insurance policy, the certificate of incorporation or bylaws of the Company or otherwise of the amounts otherwise indemnifiable hereunder.

Sharing of Profits. If (a) For the purposes of this Section 3.5 only, the ------------------ term "Stockholders" refers solely to Wine Partners, L.P., TPG Partners, L.P. TPG Parallel I, L.P. and TPG GenPar, L.P. (the "TPG Stockholders"). If (i) the Merger Agreement is terminated in circumstances in which Parent is entitled to a fee pursuant to Section 8.2(b8.01(b), 8.01(c) (iior 8.01(d) thereof and (iib) not later than one year from the date of termination of the Merger Agreement, (1i) the Company consummates a merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar transaction involving, or any sale of all or substantially all of the assets or equity securities of, the Company and its Subsidiaries subsidiaries (a "Business -------- CombinationBUSINESS COMBINATION"), (2ii) the Company enters into an Acquisition Agreement providing ----------- for a Business Combination, which Business Combination is ultimately consummated, irrespective of when such consummation occurs, (3iii) a TPG Stockholder disposes of any or all of its Subject Shares to any person not an affiliate or an associate of Parent or Purchaser Merger Sub or to the Company or any affiliate thereof in connection with a Business Combination, or (4iv) a TPG Stockholder realizes proceeds in respect of its Subject Shares as a result of a distribution to such TPG Stockholder by the Company following the sale of substantially all of the Company's assets in connection with a Business Combination (each, a "Subsequent TransactionSUBSEQUENT TRANSACTION"), in each case at a per share ---------------------- price or with equivalent per share proceeds (including, in the case of clause (4iv), the market value of the Shares after giving effect to such transactions), as the case may be (the "Subsequent PriceSUBSEQUENT PRICE"), having a value in excess of the Per ---------------- Share AmountOffer Price, then the TPG Stockholder will promptly pay to Parent an amount equal to one-half of the product of (x1) the excess of the Subsequent Price over the Per Share Amount Offer Price multiplied by (y2) the greatest number of Subject Shares beneficially owned (other than beneficially owned solely by reason of having a right to vote) by such TPG Stockholder at between the date hereof and the time a Business Combination is consummated (in the case of clauses (1i), (2ii) and (3iii)) or disposal by such TPG Stockholder (in the case of clause (4iv)). Any non-cash consideration received by the TPG Stockholder in a Subsequent Transaction will be valued at fair market value at the time of receipt thereof by the TPG Stockholder. In the event of any stock dividends, stock splits, recapitalizations, combinations, exchanges of shares or the like or any other action that would have the effect of changing the TPG Stockholder's ownership of the Company's capital stock or other securities, the Per Share Amount Offer Price will be appropriately adjusted for the purpose of this Section 3.5(a)3.5. (b) Indemnification (i) If Shares are purchased in the Offer pursuant to --------------- the terms of the Merger Agreement, Parent and Purchaser hereby jointly and severally agree to indemnify fully, hold harmless and defend the TPG Stockholders and their respective successors and assigns solely in such party's capacity as a stockholder of the Company (collectively, the "Indemnitees") from and against any and all costs and expenses (including, but not limited to, reasonable attorneys' fees and the costs and expenses of investigating, defending and litigating any claims), judgments, fines, losses, claims, damages and liabilities to the extent sustained or incurred by any Indemnitee in connection with any action, suit or proceeding by or on behalf of any stockholder of the Company, other than any Indemnitee (a "Claim") arising out of, relating to or based upon this Agreement or the Merger Agreement or the transactions contemplated hereby or thereby; provided that the Indemnitee acted in good faith in connection with the matters that are the subject of such Claim. Notwithstanding anything contained in this Section 3.5(b), no claim for indemnity under this Section 3.5(b) may be asserted by any Indemnitee arising or resulting from (1) any breach by the Company of any representation, warranty or covenant of the Company in the Merger Agreement or (2) any breach by any party to this Agreement (other than by Parent or Purchaser) of any representation, warranty or covenant in this Agreement. (ii) Each Indemnitee shall give Parent notice in writing as soon as practicable after Indemnitee receives notice of a Claim made against Indemnitee for which indemnification will or could be sought under this Section 3.5(b). Written notice to Parent shall be given in accordance with Section 6.6. The failure to notify Parent as required pursuant to this paragraph (ii) will not relieve Parent or Purchaser from any liability hereunder unless and to the extent Parent or Purchaser did not otherwise learn of such action and such failure results in the forfeiture by Parent or Purchaser of any significant right or defense. In addition, Indemnitee shall give Parent such information and cooperation as Parent may reasonably request in connection with the defense of any Claim for which indemnification is sought under this Section 3.5(b). (iii) Parent and Purchaser will be entitled to participate in the defense of any Claim for which indemnification will or could be sought under this Section 3.5(b) or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee, provided that in the event that (1) the use of counsel chosen by Parent and Purchaser to represent Indemnitee would present such counsel with an actual or potential conflict, (2) the named parties in any such Claim (including any impleaded parties) include or is reasonably likely to include both Parent or Purchaser and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to it that are different from or in addition to those available to Parent or Purchaser, or (3) any such representation by Parent or Purchaser would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain separate counsel (but not more than one law firm for all Indemnitees plus, if applicable, local counsel in respect of any particular Claim) at Parent's expense. Parent and Purchaser will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes an unconditional release of the Indemnitee from all liability on any claims that are the subject matter of or are related to such Claim. (iv) Purchaser and Parent will not be liable under this Section 3.5(b) to make any payment to an Indemnitee to the extent Indemnitee has otherwise actually received payment (net of expenses incurred in connection therewith) under any insurance policy, the certificate of incorporation or bylaws of the Company or otherwise of the amounts otherwise indemnifiable hereunder.