EXHIBIT 2.3
CONTRIBUTION AGREEMENT
AMONG
MALLINCKRODT INC.
ROCHE HOLDINGS, INC.
AND
GIVAUDAN-ROURE (UNITED STATES) INC.
DATED AS OF FEBRUARY 4, 1997
Table of Contents
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Page
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS AND INTERPRETATION. . . . . . . . . . . . . . 4
1.1 Capitalized Terms. . . . . . . . . . . . . . . . . . 4
1.1.1 Certificate of Designation . . . . . . . . 4
1.1.2 Competitive Business . . . . . . . . . . . 4
1.1.3 Consolidated Subsidiaries. . . . . . . . . 4
1.1.4 Contribution Agreement . . . . . . . . . . 4
1.1.5 Downward Adjustment. . . . . . . . . . . . 4
1.1.6 Estimated Mallinckrodt Consideration . . . 5
1.1.7 Exchange Act . . . . . . . . . . . . . . . 5
1.1.8 F&F Debt . . . . . . . . . . . . . . . . . 5
1.1.9 F&F Debt Payoff Amount . . . . . . . . . . 5
1.1.10 F&F Stock. . . . . . . . . . . . . . . . . 5
1.1.11 F&F Tastemaker B.V. Interest . . . . . . . 5
1.1.12 F&F Tastemaker Partnership Interest. . . . 5
1.1.13 Final Mallinckrodt Consideration . . . . . 5
1.1.14 G-R Stock. . . . . . . . . . . . . . . . . 6
1.1.15 GRC Financial Statements . . . . . . . . . 6
1.1.16 Investment Assets. . . . . . . . . . . . . 6
1.1.17 Investment Asset Adjustment. . . . . . . . 6
1.1.18 Investment Asset Value . . . . . . . . . . 6
1.1.19 Keepwell Agreement . . . . . . . . . . . . 6
1.1.20 Letter of Credit . . . . . . . . . . . . . 6
1.1.21 Newco Preferred Stock. . . . . . . . . . . 6
1.1.22 Newco Stock. . . . . . . . . . . . . . . . 6
1.1.23 Noncompetition Period. . . . . . . . . . . 6
1.1.24 Roche Financial Statements . . . . . . . . 7
1.1.25 Securities Act . . . . . . . . . . . . . . 7
1.1.26 Tax. . . . . . . . . . . . . . . . . . . . 7
1.1.27 Tax Return . . . . . . . . . . . . . . . . 7
1.1.28 Term Sheet . . . . . . . . . . . . . . . . 8
1.1.29 Transferee . . . . . . . . . . . . . . . . 8
1.1.30 Upward Adjustment. . . . . . . . . . . . . 8
1.1.31 Voting Agreement . . . . . . . . . . . . . 8
1.1.32 Wrap Agreement . . . . . . . . . . . . . . 8
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . 8
1.3 Construction . . . . . . . . . . . . . . . . . . . . 8
1.4 Captions and Headings. . . . . . . . . . . . . . . . 8
1.5 No Party Deemed Drafter. . . . . . . . . . . . . . . 9
1.6 Reformation. . . . . . . . . . . . . . . . . . . . . 9
1.7 Currency . . . . . . . . . . . . . . . . . . . . . . 9
1.8 Materiality. . . . . . . . . . . . . . . . . . . . . 9
2. CONTRIBUTION TRANSACTION. . . . . . . . . . . . . . . . . 11
2.1 Contribution of F&F Stock. . . . . . . . . . . . . . 11
2.2 Consideration. . . . . . . . . . . . . . . . . . . . 11
2.3 Contributions. . . . . . . . . . . . . . . . . . . . 13
2.4 Closing. . . . . . . . . . . . . . . . . . . . . . . 13
2.5 Certificates for Newco Preferred Stock; Transfer
Restrictions . . . . . . . . . . . . . . . . . . . . 13
3. REPRESENTATIONS AND WARRANTIES OF MALLINCKRODT. . . . . . 15
3.1 Organization, Standing and Power . . . . . . . . . . 15
3.2 F&F Capital Structure. . . . . . . . . . . . . . . . 16
3.3 F&F Interest in Tastemaker and Tastemaker B.V. . . . 16
3.4 Authority. . . . . . . . . . . . . . . . . . . . . . 17
3.5 Consents and Approvals; No Violation . . . . . . . . 18
3.6 Actions, Etc.. . . . . . . . . . . . . . . . . . . . 20
3.7 F&F Business, Assets and Liabilities . . . . . . . . 20
3.8 Transactions with Affiliates.. . . . . . . . . . . . 21
3.9 Agreements with Hercules . . . . . . . . . . . . . . 22
3.10 No Existing Violation, Default, Etc. . . . . . . . . 22
3.11 Orders, Litigation, Etc. . . . . . . . . . . . . . . 23
3.12 Brokers. . . . . . . . . . . . . . . . . . . . . . . 23
3.13 Contracts. . . . . . . . . . . . . . . . . . . . . . 23
3.14 No Distribution. . . . . . . . . . . . . . . . . . . 24
3.15 No Intention to Dispose of Newco Preferred Stock . . 24
3.16 Tax Matters. . . . . . . . . . . . . . . . . . . . . 24
4. REPRESENTATIONS AND WARRANTIES OF ROCHE AND NEWCO . . . . 25
4.1 Organization, Standing and Power of GRC and Newco. . 25
4.2 Standing of GRC and Newco. . . . . . . . . . . . . . 26
4.3 Capital Structure. . . . . . . . . . . . . . . . . . 26
4.4 Newco Preferred Stock. . . . . . . . . . . . . . . . 27
4.5 Rights to Acquire Equity of GRC and Newco. . . . . . 27
4.6 Authority to Enter Into Contribution Agreement . . . 28
4.7 Authority to Enter Into Keepwell Agreement . . . . . 28
4.8 Consents and Approvals; No Violation . . . . . . . . 28
4.9 Financial Statements . . . . . . . . . . . . . . . . 30
4.10 Orders, Actions, Etc . . . . . . . . . . . . . . . . 30
4.11 Financial Capabilities . . . . . . . . . . . . . . . 31
4.12 No Intention to Dispose of Newco Common Stock. . . . 31
5. COVENANTS OF MALLINCKRODT . . . . . . . . . . . . . . . . 31
5.1 Noncompetition . . . . . . . . . . . . . . . . . . . 31
5.2 Documents to be delivered by Mallinckrodt at
Closing. . . . . . . . . . . . . . . . . . . . . . . 33
5.3 Confidentiality. . . . . . . . . . . . . . . . . . . 34
5.4 Distributions. . . . . . . . . . . . . . . . . . . . 35
5.5 Responsibility for F&F Transaction . . . . . . . . . 35
5.6 Operations . . . . . . . . . . . . . . . . . . . . . 36
6. COVENANTS OF ROCHE. . . . . . . . . . . . . . . . . . . . 36
6.1 Deliveries . . . . . . . . . . . . . . . . . . . . . 36
6.2 Certificate of Designation . . . . . . . . . . . . . 37
6.3 Keepwell Agreement . . . . . . . . . . . . . . . . . 37
6.4 Contribution of G-R Stock. . . . . . . . . . . . . . 37
6.5 Documents to be Delivered by Newco and Roche at
Closing. . . . . . . . . . . . . . . . . . . . . . . 37
7. MUTUAL COVENANTS OF MALLINCKRODT, NEWCO AND ROCHE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.1 Satisfaction of Conditions . . . . . . . . . . . . . 38
7.2 Further Assurances . . . . . . . . . . . . . . . . . 39
7.3 Preservation of Tax Free Status of Contribution. . . 39
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS; INDEMNITY FOR DAMAGES . . . . . . . . . . 40
8.1 Survival . . . . . . . . . . . . . . . . . . . . . . 40
8.2 Limitations of Remedies. . . . . . . . . . . . . . . 41
8.3 Indemnification Procedures . . . . . . . . . . . . . 42
8.4 Claims Made in Written Notice. . . . . . . . . . . . 42
9. RESOLUTION OF DISPUTES. . . . . . . . . . . . . . . . . . 42
9.1 Conclusive and Exclusive . . . . . . . . . . . . . . 42
9.2 Forum and Waivers. . . . . . . . . . . . . . . . . . 42
10. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . 43
10.1 Conditions to Obligations of Newco and Roche . . . . 43
10.1.1 Accuracy of Representations and
Warranties. . . . . . . . . . . . . . . . . . . 43
10.1.2 Performance of Agreements. . . . . . . . . 43
10.1.3 Officer's Certificate. . . . . . . . . . . 43
10.1.4 Wrap Agreement Conditions. . . . . . . . . 44
10.1.5 Legal Opinion. . . . . . . . . . . . . . . 44
10.2 Conditions to Obligations of Mallinckrodt. . . . . . 44
10.2.1 Accuracy of Representations and
Warranties. . . . . . . . . . . . . . . . . . . 44
10.2.2 Performance of Agreements. . . . . . . . . 44
10.2.3 Officer's Certificates . . . . . . . . . . 45
10.2.4 Wrap Agreement Conditions. . . . . . . . . 45
10.2.5 Legal Opinions . . . . . . . . . . . . . . 45
10.2.6 Release of Guaranties. . . . . . . . . . . 45
10.2.7 Letter of Credit . . . . . . . . . . . . . 45
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 46
11.1 Termination and Cancellation . . . . . . . . . . . . 46
11.2 Effect of Termination. . . . . . . . . . . . . . . . 47
11.3 Notices. . . . . . . . . . . . . . . . . . . . . . . 47
11.3.1 Mallinckrodt Notice Address. . . . . . . . 48
11.3.2 Newco and Roche Notice Address . . . . . . 48
11.4 Assignment . . . . . . . . . . . . . . . . . . . . . 49
11.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . 49
11.6 Amendments . . . . . . . . . . . . . . . . . . . . . 49
11.7 Limitations on Rights of Third Parties . . . . . . . 50
11.8 Counterparts . . . . . . . . . . . . . . . . . . . . 50
11.9 Governing Law. . . . . . . . . . . . . . . . . . . . 50
11.10 Entire Agreement. . . . . . . . . . . . . . . . 50
Table of Appendices
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APPENDIX A -- Term Sheet for 5.5% Preferred Stock
APPENDIX B -- Form of Keepwell Agreement
APPENDIX C -- Mallinckrodt Legal Opinion
APPENDIX D -- Roche Legal Opinion
APPENDIX E -- Letter of Credit Commitment Letter
THE TABLE OF APPENDICES SET FORTH ABOVE BRIEFLY IDENTIFIES
THE CONTENTS OF ALL OMITTED APPENDICES TO THE CONTRIBUTION
AGREEMENT DATED AS OF FEBRUARY 4, 1997 AMONG MALLINCKRODT INC.,
ROCHE HOLDINGS, INC. AND GIVAUDAN-ROURE (UNITED STATES) INC. (THE
"AGREEMENT"). A LIST BRIEFLY IDENTIFYING THE CONTENTS OF ALL
OMITTED SCHEDULES TO THE AGREEMENT IS AS FOLLOWS:
SCHEDULE 3.5 - CONTRACTS THAT REQUIRE CONSENT TO
TRANSACTION
SCHEDULE 3.7 - OTHER ASSETS AND LIABILITIES OF F&F
SCHEDULE 3.8 - TRANSACTIONS BETWEEN MALLINCKRODT OR F&F
AND ANY OF THE COMPANIES
SCHEDULE 3.9 - AGREEMENTS WITH HERCULES OR ITS
AFFILIATES
SCHEDULE 3.13 - AGREEMENTS TO WHICH F&F IS A PARTY
SCHEDULE 3.16 - TAX DISCLOSURES
MALLINCKRODT INC. WILL FURNISH SUPPLEMENTALLY A COPY OF ANY
OMITTED APPENDIX OR SCHEDULE TO THE SECURITIES AND EXCHANGE
COMMISSION UPON REQUEST.
CONTRIBUTION AGREEMENT
----------------------
This Contribution Agreement (the "CONTRIBUTION AGREEMENT")
dated as of February 4, 1997, is made and entered into by and
among MALLINCKRODT INC., a New York corporation ("MALLINCKRODT"),
ROCHE HOLDINGS, INC., a Delaware corporation ("ROCHE"), and
GIVAUDAN-ROURE (UNITED STATES) INC., a Delaware corporation and a
wholly owned subsidiary of Roche ("NEWCO").
RECITALS
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A. Tastemaker, a general partnership organized and
existing under the laws of the State of Delaware ("TASTEMAKER"),
and Tastemaker B.V., a limited liability entity organized and
existing under the laws of The Netherlands ("TASTEMAKER B.V."),
together are engaged globally, both directly and indirectly
through their respective subsidiaries, in the development,
manufacture and sale of ingredients and compounds used primarily
to provide flavor or taste in food and beverage products (the
"BUSINESS").
B. Tastemaker is owned forty percent (40%) by Hercules
Flavor, Inc., a Delaware corporation ("HFI") and wholly owned
subsidiary of Hercules Incorporated, a Delaware corporation
("HERCULES"), ten percent (10%) by Hercules Credit, Inc., a
Delaware corporation ("HCI") and wholly owned subsidiary of
Hercules, and fifty percent (50%) by Fries & Fries, Inc., a
Delaware corporation ("F&F") and wholly owned subsidiary of
Mallinckrodt.
C. Tastemaker B.V. is owned one percent (1%) by
Tastemaker, forty-nine and one-half percent (49.5%) by F&F and
forty-nine and one-half percent (49.5%) by Hercules Nederland
B.V., a limited liability entity organized and existing under the
laws of The Netherlands ("HNBV") and wholly owned subsidiary of
Hercules.
D. Givaudan-Roure (International) SA, a Swiss corporation
("GRI," and together with "ROCHE," the "INTERESTED PERSONS"), or
certain Affiliates of Roche and GRI, as the case may be, ("GRI",
together with such Affiliates, the "DESIGNATED BUYERS") and
Tastemaker intend to enter into a series of Purchase and Sale
Agreements (the "DESIGNATED TRANSACTION AGREEMENTS"), subject and
pursuant to which and prior to the consummation of the
transactions contemplated by this Contribution Agreement, the F&F
Transaction Agreement (as hereinafter defined) and the Hercules
Transaction Agreement (as hereinafter defined), Tastemaker shall
transfer to the Designated Buyers, and the Designated Buyers
shall acquire, all of Tastemaker's foreign subsidiaries,
Tastemaker Finance, Inc., a Delaware corporation ("TFI"), and
Tastemaker's one percent (1%) interest in Tastemaker B.V. in
exchange for payment by the Designated Buyers of cash in the
amounts specified in the Wrap Agreement (as hereinafter defined).
E. Each of Hercules, Mallinckrodt and the Interested
Persons are parties to that certain Agreement of even date
herewith, which sets forth certain representations, warranties,
covenants and agreements relating to, among other issues, the
transfer by Hercules and HNBV to GRI of HNBV's interest in
Tastemaker B.V. and the contribution by Mallinckrodt to Newco of
Mallinckrodt's interest in F&F (the "WRAP AGREEMENT").
F. The transfer by Hercules and HNBV to GRI of HNBV's
interest in Tastemaker B.V. is covered by the Wrap Agreement and
that certain Purchase and Sale Agreement entered into among
Hercules, HNBV, Roche and GRI concurrently herewith (the
"HERCULES TRANSACTION AGREEMENT"), and neither Mallinckrodt nor
F&F shall have any liabilities, responsibilities or obligations
with respect to any representation, warranty, covenant or
agreement set forth in the Hercules Transaction Agreement.
G. The transfer by F&F to GRI of F&F's interest in
Tastemaker B.V. is covered by that certain Purchase and Sale
Agreement of even date herewith entered into between F&F and GRI
(the "F&F TRANSACTION AGREEMENT"), and (i) neither Hercules nor
HNBV shall have any liabilities, responsibilities or obligations
with respect to any representation, warranty, covenant or
agreement set forth in the F&F Transaction Agreement, and (ii)
except as expressly provided in Section 5.5 of this Contribution
Agreement, Mallinckrodt shall have no liabilities,
responsibilities or obligations with respect to any
representation, warranty, covenant or agreement set forth in the
F&F Transaction Agreement.
H. On or prior to Closing, Roche desires to transfer to
Newco, and Newco desires to acquire, all of the stock (the "G-R
STOCK") of Givaudan-Roure Corporation, Inc., a Delaware
corporation ("GRC") and a wholly owned subsidiary of Roche, in
exchange for shares of common stock of Newco, representing (in
conjunction with the common stock of Newco previously issued to
Roche) one hundred percent (100%) of the issued and outstanding
common stock of Newco in a transaction which Mallinckrodt and
Roche intend will qualify as a tax-free contribution under
Section 351 of the Code.
I. Mallinckrodt desires to contribute to Newco, and Newco
desires to acquire, one hundred percent (100%) of the issued and
outstanding capital stock of F&F in exchange for shares of
preferred stock of Newco in a transaction which Mallinckrodt and
Roche intend will qualify as a tax free contribution under
Section 351 of the Code, subject and pursuant to the terms and
conditions of this Contribution Agreement and the Wrap Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements, provisions and covenants contained herein, the
parties hereto agree as follows:
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 Capitalized Terms. Capitalized terms used in this
-----------------
Contribution Agreement and not otherwise defined shall have the
meanings ascribed to such terms in the Wrap Agreement. In
addition, the following capitalized terms, when used in this
Contribution Agreement and not otherwise defined, shall have the
following indicated meanings:
1.1.1 Certificate of Designation shall have the
--------------------------
meaning ascribed to such term in Section 6.2 of this Contribution
Agreement.
1.1.2 Competitive Business shall have the meaning
--------------------
ascribed to such term in Section 5.1 of this Contribution
Agreement.
1.1.3 Consolidated Subsidiaries shall mean those
-------------------------
persons and entities, the assets, liabilities or results of
operations of which are included, or required by GAAP to be
included, in the consolidated financial statements of Roche or
GRC, as the case may be.
1.1.4 Contribution Agreement shall mean this
----------------------
agreement and all schedules, annexes, exhibits and appendices
hereto, other than the Keepwell Agreement attached hereto as
APPENDIX B.
1.1.5 Downward Adjustment shall have the meaning
-------------------
ascribed to such term in Section 2.2 hereof.
1.1.6 Estimated Mallinckrodt Consideration shall
------------------------------------
mean an amount equal to (A) the sum of (i) 50% of the Estimated
Adjusted Aggregate Value on the Closing Date, and (ii) 50% of the
Investment Asset Adjustment, less (B) the F&F Debt Payoff Amount.
1.1.7 Exchange Act shall mean the United States
------------
Securities and Exchange Act of 1934, as amended, and all rules
and regulations promulgated thereunder.
1.1.8 F&F Debt shall mean the indebtedness of F&F
--------
under that certain $600,000,000 Credit Agreement dated May 22,
1996 among F&F, as Borrower, Mallinckrodt, as Guarantor, Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent,
Citibank, N.A., as Documentation Agent, and the various banks
from time to time a party thereto.
1.1.9 F&F Debt Payoff Amount shall mean the amount
----------------------
of principal, accrued but unpaid interest, fees and other costs
and premium or penalty (if any) required to be paid in order to
pay in full and discharge the F&F Debt on the Closing Date.
1.1.10 F&F Stock shall have the meaning ascribed to
---------
such term in Section 3.2 of this Contribution Agreement.
1.1.11 F&F Tastemaker B.V. Interest shall have the
----------------------------
meaning ascribed to such term in Section 3.3 of this Contribution
Agreement.
1.1.12 F&F Tastemaker Partnership Interest shall
-----------------------------------
have the meaning ascribed to such term in Section 3.3 of this
Contribution Agreement.
1.1.13 Final Mallinckrodt Consideration shall mean
--------------------------------
an amount equal to (A) the sum of (i) 50% of the Adjusted
Aggregate Value, and (ii) 50% of the Investment Asset Adjustment,
less (B) the F&F Debt Payoff Amount.
1.1.14 G-R Stock shall have the meaning ascribed to
---------
such term in Recital H of this Contribution Agreement.
1.1.15 GRC Financial Statements shall mean the
------------------------
audited consolidated financial statements of GRC as of, and for
the year ended, December 31, 1995.
1.1.16 Investment Assets shall have the meaning
-----------------
ascribed to the term "INVESTMENT ASSETS" in the Partnership
Agreement.
1.1.17 Investment Asset Adjustment shall mean the
---------------------------
positive or negative difference between (i) the aggregate
Investment Asset Value of all Investment Assets as of the
Adjustment Time, and (ii) the aggregate face amount of all
Investment Assets.
1.1.18 Investment Asset Value shall have the meaning
----------------------
ascribed to the term "INVESTMENT ASSET VALUE" in the Partnership
Agreement.
1.1.19 Keepwell Agreement shall mean the Keepwell
------------------
Agreement attached hereto as APPENDIX B.
1.1.20 Letter of Credit shall have the meaning
----------------
ascribed to such term in Section 10.2.7 of this Contribution
Agreement.
1.1.21 Newco Preferred Stock shall have the meaning
---------------------
ascribed to such term in Section 4.4 of this Contribution
Agreement.
1.1.22 Newco Stock shall have the meaning ascribed
-----------
to such term in Section 4.3 of this Contribution Agreement.
1.1.23 Noncompetition Period shall have the meaning
---------------------
ascribed to such term in Section 5.1 of this Contribution
Agreement.
1.1.24 Roche Financial Statements shall mean the
--------------------------
consolidated audited financial statements of Roche as of, and for
the year ended, December 31, 1995.
1.1.25 Securities Act shall have the meaning
--------------
ascribed to such term in Section 2.5 of this Contribution
Agreement.
1.1.26 Tax shall mean (i) any federal, state, local
---
or foreign income, profits, gross receipts, property, sales, use,
license, excise, franchise, employment, payroll, withholding,
alternative or add-on minimum, ad valorem, transfer, stamp,
capital stock or excise tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest, penalty or addition to
tax imposed by any Governmental Authority, (ii) liability of F&F
for the payment of any amounts of the type described in clause
(i) above as a result of being a member of an affiliated,
consolidated, combined or unitary group, or being a party to any
agreement or arrangement whereby liability of F&F for payments of
such amounts was determined or taken into account with reference
to the liability of any other person for any Pre-Closing Tax
Period (as defined in the Tax Annex) or Straddle Period (as
defined in the Tax Annex), and (iii) liability of F&F for the
payment of any amounts as a result of being party to any Tax
sharing, allocation, compensation or like agreement or
arrangement binding F&F or with respect to the payment of any
amounts of the type described in clauses (i) or (ii) above as a
result of any express or implied obligation to indemnify, any
other entity or individual.
1.1.27 Tax Return shall mean any return, report or
----------
similar statement (including any attached schedules) required to
be filed with any Governmental Authority and relating to Taxes,
including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Taxes.
1.1.28 Term Sheet shall mean the Term Sheet for 5.5%
----------
Preferred Stock attached to this Contribution Agreement as
APPENDIX A.
1.1.29 Transferee shall have the meaning ascribed to
----------
such term in Section 2.5 of this Contribution Agreement.
1.1.30 Upward Adjustment shall have the meaning
-----------------
ascribed to such term in Section 2.2 hereof.
1.1.31 Voting Agreement shall mean that certain
----------------
power of attorney dated August 31, 1994 given to Tastemaker by
HNBV and F&F, pursuant to which Tastemaker is given the power to
represent, and vote the interests of, HNBV and F&F in the general
meetings of shareholders of Tastemaker B.V.
1.1.32 Wrap Agreement shall have the meaning
--------------
ascribed to such term in Recital E of this Contribution
Agreement.
1.2 Accounting Terms. Accounting terms used in this
----------------
Contribution Agreement and not otherwise defined shall have the
meanings ascribed thereto under GAAP.
1.3 Construction. Unless the context clearly indicates to
------------
the contrary, words singular or plural in number shall be deemed
to include the other and pronouns having a neuter, masculine or
feminine gender shall be deemed to include and refer to any and
all genders. Whenever the terms "herein," "hereunder," or words
of like import are used in this Contribution Agreement, the
intended reference is to the entire Contribution Agreement and
not to the clause, sentence or section in which such word
appears.
1.4 Captions and Headings. The captions and headings in
---------------------
this Contribution Agreement are inserted for convenience of
reference only and shall not be considered a part of, or affect
the construction or interpretation of, any provision of this
Contribution Agreement.
1.5 No Party Deemed Drafter. This Contribution Agreement
-----------------------
represents the culmination of extensive and arms length
negotiations between the parties. No party shall be deemed the
drafter of this Contribution Agreement, and this Contribution
Agreement shall not be construed for or against either party by
reason of a particular party being deemed the drafter.
1.6 Reformation. Should any term or condition of this
-----------
Contribution Agreement be determined by a court of competent
jurisdiction to be unenforceable for any reason, including,
without limitation, violation of statute or public policy, such
provision shall, if possible, be reformed by the parties hereto
or, if the parties cannot agree, by the appropriate court of
competent jurisdiction to comply with applicable legal
requirements in a manner that is as close in its intent and
effect to the original provision as possible or, if such
reformation cannot be accomplished, shall be stricken without
affecting the validity of any other term or condition of this
Contribution Agreement.
1.7 Currency. All references in this Contribution Agreement
--------
to "dollars" or "$" shall be deemed to mean and refer to United
States dollars.
1.8 Materiality. Whenever the terms "material" or
-----------
"material adverse effect" are used in Section 3 and Section 10.1
of this Contribution Agreement in reference to F&F or
Mallinckrodt, such terms shall be interpreted and construed as
meaning "material" to the business, assets, condition (financial
or otherwise) or results of operations of F&F, taken as a whole,
or of Mallinckrodt, taken as a whole, as the case may be, or
referencing a "material adverse effect" on the business, assets,
condition (financial or otherwise) or results of operations of
F&F, taken as a whole, or of Mallinckrodt, taken as a whole, as
the case may be; provided, however, that any such effect caused
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by or resulting from (i) any change in generally accepted
accounting principles, (ii) the pendency or announcement of the
transactions contemplated by the Transaction Documents or the D&F
Transaction Agreements, (iii) fluctuations in the relative value
of domestic and/or foreign currencies, or (iv) any change in
economic conditions generally shall not be considered when
determining whether a material adverse effect has occurred.
Whenever the terms "material" or "material adverse effect" are
used in Section 4 and Section 10.2 of this Contribution
Agreement, such terms shall be interpreted and construed as
meaning "material" to the business, assets, condition (financial
or otherwise) or results of operations of Roche and its
Consolidated Subsidiaries, taken as a whole, of Newco, taken as a
whole, or of GRC, taken as a whole, as the case may be, or
referencing a "material adverse effect" on the business, assets,
condition (financial or otherwise) or results of operations of
Roche and its Consolidated Subsidiaries, taken as a whole, of
Newco, taken as a whole, or of GRC, taken as a whole, as the case
may be; provided, however, that any such effect caused by or
-------- -------
resulting from (i) any change in generally accepted accounting
principles, (ii) the pendency or announcement of the transactions
contemplated by the Transaction Documents or the D&F Transaction
Agreements, (iii) fluctuations in the relative value of domestic
and/or foreign currencies, or (iv) any change in economic
conditions generally shall not be considered when determining
whether a material adverse effect has occurred.
2. CONTRIBUTION TRANSACTION
------------------------
2.1 Contribution of F&F Stock. Subject and pursuant to the
-------------------------
terms and conditions of this Contribution Agreement and the Wrap
Agreement, Mallinckrodt shall contribute to Newco on the Closing
Date one hundred percent (100%) of the issued and outstanding
capital stock of F&F in exchange for the number of shares of
Newco Preferred Stock required to be issued and delivered to
Mallinckrodt by Newco, as provided in Section 2.2 below.
Mallinckrodt shall be solely responsible for all covenants,
representations, warranties, liabilities and obligations of
Mallinckrodt under this Contribution Agreement, and neither
Hercules nor HNBV shall have any responsibilities, liabilities or
obligations under this Contribution Agreement.
2.2 Consideration. Mallinckrodt shall obtain and deliver
-------------
to each of Roche and Newco five (5) business days in advance of
the Closing Date, written confirmation from F&F's lenders as to
the F&F Debt Payoff Amount. On the Closing Date, subject to the
last sentence of this Section 2.2, Newco shall issue and deliver
to Mallinckrodt shares of Newco Preferred Stock having an
aggregate stated value equal to the Estimated Mallinckrodt
Consideration. The Adjusted Aggregate Value shall be determined
in accordance with Section 2.6.1 of the Wrap Agreement. Within
ten (10) days after the date upon which the Working Capital
Adjustment and the Long-Term Liabilities Adjustment are finally
determined pursuant to Section 2.6.1 of the Wrap Agreement
(whether by agreement of the parties, dispute resolution or as a
result of the failure to timely provide a required notice), then
either (i) if the Working Capital Adjustment and the Long-Term
Liabilities Adjustment as finally determined result in a Final
Mallinckrodt Consideration that is higher than the Estimated
Mallinckrodt Consideration determined and paid on the Closing
Date (the amount by which the Final Mallinckrodt Consideration
exceeds such Estimated Mallinckrodt Consideration being
hereinafter referred to as the "UPWARD ADJUSTMENT"), Newco shall
deliver, and Roche shall cause Newco to deliver to Mallinckrodt
certificates representing shares of Newco Preferred Stock having
a stated value equal to the Upward Adjustment and cash in an
amount equal to any dividends which would have been paid on such
shares since the Closing Date, as well as interest on such unpaid
dividends, or (ii) if the Working Capital Adjustment and the
Long-Term Liabilities Adjustment as finally determined result in
a Final Mallinckrodt Consideration that is lower than the
Estimated Mallinckrodt Consideration determined and paid on the
Closing Date (the amount by which such Estimated Mallinckrodt
Consideration price exceeds the Final Mallinckrodt Consideration
being hereinafter referred to as the "DOWNWARD ADJUSTMENT"),
Mallinckrodt shall return to Newco certificates representing
shares of Newco Preferred Stock received on the Closing Date
having a stated value equal to the Downward Adjustment and shall
pay to Newco cash in an amount equal to the dividends paid on
such shares since the Closing Date, as well as interest on such
paid dividends. Interest shall be paid from and including the
Closing Date or, in the case of interest on declared but unpaid
dividends, from the date such dividend was payable to but
excluding the date of payment at a rate per annum equal to the
rate of interest announced by Xxxxxx Guaranty Trust Company of
New York from time to time as its Base Rate in New York City in
effect from time to time during the period from the Closing Date
to the date of payment. Such interest shall be payable at the
same time as the payment to which it relates and shall be
calculated daily on the basis of a year of 365 days and the
actual number of days elapsed. Notwithstanding the foregoing, if
at any time the aggregate stated value of the Newco Preferred
Stock required to be delivered to Mallinckrodt pursuant to this
Section 2.2 exceeds $200,000,000, at the option of Newco, Newco
shall not be obligated to deliver to Mallinckrodt Newco Preferred
Stock having an aggregate stated value in excess of $200,000,000
and Newco shall pay to Mallinckrodt in cash the amount in excess
of $200,000,000 otherwise required to be delivered to
Mallinckrodt in Newco Preferred Stock.
2.3 Contributions. At or prior to the contribution by
-------------
Mallinckrodt of the stock of F&F to Newco in exchange for Newco
Preferred Stock as provided in Section 2.1 above, Roche shall
contribute to Newco all of its right, title and interest in the
G-R Stock, in exchange for shares of common stock of Newco,
representing (in conjunction with the common stock of Newco
previously issued to Roche) one hundred percent (100%) of the
issued and outstanding common stock of Newco.
2.4 Closing. The closing of the transactions contemplated
-------
by this Contribution Agreement shall occur at the time and place,
and on the Closing Date established by the parties under and
pursuant to the Wrap Agreement.
2.5 Certificates for Newco Preferred Stock; Transfer
------------------------------------------------
Restrictions. (a) Each certificate for Newco Preferred Stock
------------
issued to Mallinckrodt as part of the Tastemaker Combined and
Consolidated Value shall bear the following legend:
"The securities represented hereby have
not been registered under the Securities Act
of 1933, as amended, and may not be sold,
transferred or otherwise disposed of except
in accordance with the terms thereof and
unless registered with the Securities and
Exchange Commission of the United States and
the securities regulatory authorities of
certain states or unless an exception from
such registration is available. In addition,
transfer or other disposition of the
Securities represented hereby is restricted
as provided in the Contribution Agreement
dated as of February 4, 1997 among
Mallinckrodt Inc., Roche Holdings, Inc.,
Givaudan-Roure (International) SA, and the
Issuer.
(b) The Newco Preferred Stock has not been and will
not be registered under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The Newco Preferred Stock may not be
offered or sold to, or for the account or benefit of, any person
other than in a transaction exempt from the registration
requirements of the Securities Act and in compliance with all
applicable securities laws.
(c) No Newco Preferred Stock may be sold, disposed of
or otherwise transferred to any person (a "TRANSFEREE"), without
the prior written approval of Roche (which approval shall not be
unreasonably withheld) and unless Roche: (i) shall have received
not less than twenty (20) days prior to any such transfer: (1) an
opinion of counsel reasonably satisfactory to Roche stating that
such transfer does not require the registration of such Newco
Preferred Stock with the Securities and Exchange Commission of
the United States or any other securities regulatory authority;
and (2) an agreement in writing, reasonably satisfactory to
Roche, executed by the Transferee in which such Transferee agrees
to be bound by the provisions of this Section 2.5; and (ii) are
reasonably satisfied that any such transfer will not result in
any reporting requirement under the 1934 Act.
(d) Any attempt by any person to transfer any of the
Newco Preferred Stock other than in accordance with the
provisions of this Section 2.5 shall be deemed to be null and
void and shall not be given effect on the books and records of
Newco.
(e) Notwithstanding anything in this Section 2.5 to
the contrary, Newco hereby agrees to the assignment by
Mallinckrodt to the Xxxxxx Guaranty Trust Company of New York of
the Newco Preferred Stock and Mallinckrodt's rights with respect
thereto, all as more particularly described in APPENDIX E
3. REPRESENTATIONS AND WARRANTIES OF MALLINCKRODT
----------------------------------------------
Mallinckrodt represents and warrants to Newco and Roche as
of the date hereof and as of the Closing Date as follows:
3.1 Organization, Standing and Power. Mallinckrodt is a
--------------------------------
corporation duly organized and validly existing under the laws of
the State of New York and has the requisite power and authority
to carry on its business as conducted on the date hereof. F&F is
a corporation duly organized and validly existing under the laws
of the State of Delaware and has the requisite power and
authority to carry on its business as conducted on the date
hereof. F&F is duly qualified as a foreign corporation and in
good standing in each jurisdiction where the nature of its
properties or the conduct of its business makes such
qualification necessary, except where the failure to so qualify
would not reasonably be expected to have a material adverse
effect on F&F.
3.2 F&F Capital Structure. The authorized capital of F&F
---------------------
consists of 10,000 common shares, $1.00 par value per share, (the
"F&F STOCK"), of which 100 shares are issued and outstanding, and
none of which shares are held in the treasury of F&F. All of the
issued and outstanding shares of F&F Stock were duly and validly
authorized and issued, are fully paid and nonassessable, and are
free of preemptive rights. Mallinckrodt owns all of the issued
and outstanding shares of F&F Stock, free and clear of all
security interests, liens, claims, pledges, voting rights,
charges and encumbrances of any nature whatsoever. There are no
options, warrants, calls, rights or agreements to which
Mallinckrodt (or its Affiliates) or F&F is a party obligating
Mallinckrodt (or its Affiliates) or F&F to issue, deliver, sell,
repurchase, redeem or otherwise acquire or cause to be issued,
delivered, sold, repurchased, redeemed or otherwise acquired
additional shares of capital stock of F&F, or obligating
Mallinckrodt (or its Affiliates) or F&F to grant, extend or enter
into any such option, warrant, call, right or agreement.
3.3 F&F Interest in Tastemaker and Tastemaker B.V. F&F
---------------------------------------------
owns a fifty percent (50%) partnership interest in Tastemaker
(the "F&F TASTEMAKER PARTNERSHIP INTEREST"), free and clear of
all security interests, liens, claims, pledges, voting rights,
charges and encumbrances of any nature whatsoever. Except as
provided in the Partnership Agreement, there are no options,
warrants, calls, rights or agreements to which F&F is a party
obligating F&F to issue, deliver, sell, repurchase, redeem or
otherwise acquire or cause to be issued, delivered, sold,
repurchased, redeemed or otherwise acquired any partnership
interests in Tastemaker or obligating F&F to grant, extend or
enter into any such option, call, right, warrant or agreement.
Prior to the consummation of the transactions contemplated by the
F&F Transaction Agreement, F&F owns a forty-nine and one-half
percent (49.5%) interest in Tastemaker B.V. (the "F&F TASTEMAKER
B.V. INTEREST"), free and clear of all security interests, liens,
claims, pledges, voting rights, charges and encumbrances of any
nature whatsoever except for the F&F Transaction Agreement and
the Voting Agreement. The F&F Tastemaker B.V. Interest has been
duly authorized and validly issued and is fully paid. Subject
and pursuant to the terms of the F&F Transaction Agreement, F&F
will transfer and deliver to GRI at the Closing valid title to
the F&F Tastemaker B.V. Interest, free and clear of all security
interests, liens, claims, pledges, voting rights, charges and
encumbrances of any nature, except for the Voting Agreement.
Except pursuant to the F&F Transaction Agreement, there are no
options, warrants, calls, rights or agreements to which F&F is a
party obligating F&F to issue, deliver or sell, or cause to be
issued, delivered or sold, or repurchased, redeemed or otherwise
acquired, any ownership interest in Tastemaker B.V. or obligating
F&F to grant, extend or enter into any such option, warrant,
call, right or agreement. A true and complete copy of the Voting
Agreement has been made available to the Interested Persons.
3.4 Authority. Mallinckrodt has all requisite power and
---------
authority to enter into this Contribution Agreement and the Wrap
Agreement and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Contribution
Agreement and the Wrap Agreement and the consummation by
Mallinckrodt of the transactions contemplated hereby and thereby
have been duly authorized by all necessary action on the part of
Mallinckrodt. This Contribution Agreement and the Wrap Agreement
have been duly executed and delivered by Mallinckrodt and
(assuming the due authorization, execution and delivery of this
Contribution Agreement by Roche and Newco and the due
authorization, execution and delivery of the Wrap Agreement by
the Interested Persons and Hercules) constitute the valid and
binding obligations of Mallinckrodt, enforceable against
Mallinckrodt in accordance with their respective terms. F&F has
all requisite power and authority to enter into the F&F
Transaction Agreement and to consummate the transactions
contemplated thereby. The execution and delivery of the F&F
Transaction Agreement by F&F and the consummation by F&F of the
transactions contemplated thereby have been duly authorized by
all necessary action on the part of F&F. The F&F Transaction
Agreement has been duly executed and delivered by F&F and
(assuming the due authorization, execution and delivery by GRI)
constitutes a valid and binding obligation of F&F, enforceable
against F&F in accordance with its terms.
3.5 Consents and Approvals; No Violation. Except as
------------------------------------
described on SCHEDULE 3.5 to this Contribution Agreement, the
execution and delivery by Mallinckrodt of this Contribution
Agreement and the Wrap Agreement, and the execution and delivery
by F&F of the F&F Transaction Agreement do not, and the
consummation of the transactions contemplated hereby and thereby
and compliance with the provisions hereof and thereof will not,
result in any violation of, or default (with or without notice or
lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or,
except as provided in the Partnership Agreement, to the loss of a
material right or benefit under, or result in the creation of any
lien, security interest, charge or encumbrance upon any of the
properties or assets of F&F under: (i) any provision of the
Certificate of Incorporation or By-Laws of Mallinckrodt or F&F,
(ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease, agreement, instrument, permit, concession,
franchise or license by which Mallinckrodt or F&F is bound, or
(iii) any judgment, order, decree, statute, law, ordinance, rule
or regulation by which Mallinckrodt or F&F is bound or to which
any of their respective properties or assets is subject, other
than, in the case of clauses (ii) and (iii), any such violations,
defaults, rights, liens, security interests, charges or
encumbrances that would not reasonably be expected to have a
material adverse effect on F&F and would not impair the ability
of Mallinckrodt to perform its obligations under this
Contribution Agreement and the Wrap Agreement, or the ability of
F&F to perform its obligations under the F&F Transaction
Agreement, prevent the consummation of any of the transactions
contemplated hereby or thereby or, other than by reason of any
act or omission of Roche, GRI or Newco, materially and adversely
affect the rights and benefits of Roche or Newco hereunder, of
the Interested Persons under the Wrap Agreement, or of GRI under
the F&F Transaction Agreement. No filing, declaration or
registration with, or authorization, consent, order or approval
of, any Governmental Authority is required by, or with respect
to, Mallinckrodt or F&F in connection with the execution and
delivery by Mallinckrodt of the Wrap Agreement or this
Contribution Agreement, or the execution and delivery by F&F of
the F&F Transaction Agreement, or the consummation by
Mallinckrodt of the transactions contemplated by the Wrap
Agreement and this Contribution Agreement, or the execution and
delivery by F&F of the F&F Transaction Agreement, except: (a) in
connection, or in compliance, with the provisions of the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as amended, (b)
for such filings, declarations, registrations, consents,
approvals, orders and authorizations of the countries disclosed
in APPENDIX F to the Wrap Agreement, and such filings,
declarations, registrations, consents, approvals, orders and
authorizations that may be required under the laws of any other
foreign country in which any of the Companies is organized,
conducts any business or owns any property or assets; and (c) for
such other filings, declarations, registrations, consents,
approvals, orders and authorizations the failure of which to
obtain or make would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on
Mallinckrodt or F&F and would not impair the ability of
Mallinckrodt or F&F to perform their obligations hereunder or
thereunder, prevent the consummation by Mallinckrodt or F&F, of
any of the transactions contemplated hereby or thereby or, other
than by reason of any acts or omissions of Roche, GRI or Newco,
materially and adversely affect the rights and benefits of Roche
hereunder, of the Interested Persons under the Wrap Agreement, or
of GRI under the F&F Transaction Agreement.
3.6 Actions, Etc. There are no actions, suits or claims or
-------------
legal, administrative or arbitration proceedings or
investigations pending against or, to the knowledge of
Mallinckrodt, threatened against or affecting Mallinckrodt or any
of its properties, assets or businesses, relating to the
transactions contemplated by this Contribution Agreement, the
Wrap Agreement or the F&F Transaction Agreement that would impair
the ability of Mallinckrodt or F&F to perform their obligations
hereunder or thereunder.
3.7 F&F Business, Assets and Liabilities. F&F's business
------------------------------------
consists solely of regular and ongoing management input regarding
the operation and management of the Companies and the provision
of administrative services in support of the Companies and the
Business. F&F has no employees, consultants, independent
contractors, assets (including shares or other investments) or
liabilities of any kind, whether accrued, contingent, absolute,
determined or otherwise, or, attributable to F&F as a result of
F&F being an Affiliate of Mallinckrodt or any other person prior
to Closing, including without limitation, liabilities relating to
ERISA and environmental matters, except for (i) the ownership of
the F&F Tastemaker Partnership Interest and the rights and
obligations of F&F with respect thereto, (ii) the ownership of
the F&F Tastemaker B.V. Interest and the rights and obligations
of F&F with respect thereto, (iii) the rights and obligations of
F&F under the F&F Transaction Agreement, (iv) those assets and
liabilities described on SCHEDULE 3.7 to this Contribution
Agreement, and (v) those liabilities and obligations of F&F
arising under that certain $600,000,000 Credit Agreement dated
May 22, 1996 among F&F, as Borrower, Mallinckrodt, as Guarantor,
Xxxxxx Guaranty Trust Company of New York, as Administrative
Agent, Citibank, N.A., as Documentation Agent, and the various
banks from time to time a party thereto (the "CREDIT AGREEMENT").
A true and complete copy of the Credit Agreement has been made
available to the Interested Persons. The Credit Agreement is in
full force and effect, and there exists no material default by
F&F or, to Mallinckrodt's knowledge, any other person or entity
under the Credit Agreement.
3.8 Transactions with Affiliates. Except as described on
----------------------------
SCHEDULE 3.8 to this Contribution Agreement, there are no
material transactions between Mallinckrodt, any of its Affiliates
(other than F&F), or F&F and any of the Companies other than any
such transactions which have been entered into on an arms length
basis in the ordinary course of the Companies' business. True
and complete copies of all agreements described on SCHEDULE 3.8
have been made available to the Interested Persons. All of the
agreements described on SCHEDULE 3.8 are in full force and
effect, and there exists no material default by Mallinckrodt or
F&F or, to Mallinckrodt's knowledge, any other person or entity
under such agreements.
3.9 Agreements with Hercules. Except as described on
------------------------
SCHEDULE 3.9 to this Contribution Agreement, none of
Mallinckrodt, any of its Affiliates (other than F&F), or F&F is a
party to any agreement with Hercules, HNBV, HFI or HCI that is
material to any of the Companies. True and complete copies of
all agreements described on SCHEDULE 3.9 have been made available
to the Interested Persons. All agreements described on SCHEDULE
3.9 are in full force and effect, and there exists no material
default by Mallinckrodt or F&F or, to Mallinckrodt's knowledge,
Hercules, HNBV, HFI or HCI under such agreements.
3.10 No Existing Violation, Default, Etc. F&F is not in
------------------------------------
violation of (i) its charter or other organizational documents,
(ii) any applicable law, ordinance or administrative or
governmental rule or regulation or (iii) any order, decree or
judgment of any Governmental Authority having jurisdiction over
it, except for any violation that would not reasonably be
expected to have or to cause a material adverse effect on it. No
event of default or event that, but for the giving of notice or
lapse of time, or both, would constitute an event of default
exists or, upon consummation of the transactions contemplated by
this Contribution Agreement, will exist under any loan or credit
agreement, note, bond, mortgage, indenture or guarantee of
indebtedness for borrowed money or any other material agreement
or instrument to which F&F is a party or by which F&F or its
properties, assets or business is bound, except for any such
default or event of default which would not reasonably be
expected to have a material adverse effect on F&F.
3.11 Orders, Litigation, Etc. There are no outstanding
------------------------
orders, judgments, injunctions, awards or decrees of any
Governmental Authority against F&F or any of its properties,
assets or businesses that would reasonably be expected to have a
material adverse effect on F&F. There are no actions, suits or
claims or legal, administrative or arbitration proceedings or
investigations pending against or, to Mallinckrodt's knowledge,
threatened against or affecting F&F or any of its properties,
assets or businesses that would reasonably be expected to have a
material adverse effect on F&F.
3.12 Brokers. No broker, investment banker or other person,
-------
other than Xxxxxxx, Sachs & Co., the fees and expenses of which
will be paid by Mallinckrodt, is entitled to any broker's,
finder's or other similar fee or commission in connection with
the execution and delivery of, or the consummation of the
transactions contemplated by, this Contribution Agreement, the
Wrap Agreement or the F&F Transaction Agreement based on
agreements or arrangements made by Mallinckrodt or F&F.
3.13 Contracts. SCHEDULE 3.13 attached hereto contains a
---------
list of all agreements, commitments, arrangements or plans to
which F&F is a party or by which F&F or its properties is bound.
Each agreement, commitment, arrangement or plan required to be
disclosed pursuant to this Section 3.13 is a valid and binding
agreement of F&F, and is in full force and effect, and neither
F&F nor, to Mallinckrodt's knowledge, after due inquiry, any
other party thereto is in default or breach under the terms of
any such agreement, commitment, arrangement or plan. True and
complete copies of all such documents have been delivered to
Newco and Roche by Mallinckrodt.
3.14 No Distribution. Except as described in Section 2.5
---------------
hereof, the transfer of the Newco Preferred Stock by Newco
hereunder, and the receipt of the Newco Preferred Stock by
Mallinckrodt, is solely for Mallinckrodt's own account and not
for Mallinckrodt as nominee or agent for any other person and is
not made with a view by Mallinckrodt to, or for offer or sale in
connection with, any distribution thereof (within the meaning of
the Securities Act) that would be in violation of the securities
laws of the United States of America or any state thereof or
Section 2.5 hereof.
3.15 No Intention to Dispose of Newco Preferred Stock.
------------------------------------------------
Mallinckrodt has no present plan or intention to sell, exchange,
transfer by gift or otherwise dispose of the Newco Preferred
Stock to be received by Mallinckrodt upon its contribution of the
capital stock of F&F to Newco pursuant to this Contribution
Agreement, except as described in Section 2.5 hereof.
3.16 Tax Matters. Except as set forth in SCHEDULE 3.16
-----------
attached hereto, with respect to Taxes and Tax Returns: (i) all
Tax Returns required to be filed by F&F on or prior to the date
hereof have been filed when due in accordance with all applicable
laws; (ii) as of the time of filing, or, if subsequently amended
as of the date of such amendment, and to the knowledge of
Mallinckrodt, such Tax Returns correctly reflected in all
material respects the facts regarding the income, business,
assets, operations, activities and status of F&F and any other
information required to be shown therein; (iii) all Taxes shown
to be due on such Tax Returns have been timely paid, withheld or
remitted to the appropriate Governmental Authority or extensions
for payment have been duly obtained; (iv) as of the date hereof,
neither F&F nor any member of any affiliated, consolidated,
combined or unitary group of which F&F is or has been a member
has waived or granted any extension of any statute of limitations
in respect of any such Tax Returns or Taxes; (v) as of the date
hereof, there is no audit, dispute, claim, action, proceeding or
investigation pending or, to the knowledge of Mallinckrodt
threatened against or with respect to F&F with respect to any
Tax, which audit, dispute, claim, action, proceeding or
investigation, if determined adversely, would reasonably be
expected in combination with any such audits, disputes, claims,
actions, proceedings or investigations, to have a material
adverse effect on F&F; (vi) as of the date hereof, F&F is not
delinquent in the payment of any Tax, requested any extension of
time within which to file any Tax Return and has not yet filed
such Return, and all deficiencies asserted or assessments made as
a result of any audit by a Governmental Authority of a Tax Return
of F&F have been paid in full; and (vii) as of the date hereof,
there are no requests for rulings or determinations in respect of
any Tax pending between any Governmental Authority and F&F.
4. REPRESENTATIONS AND WARRANTIES OF ROCHE AND NEWCO
-------------------------------------------------
Newco and Roche jointly and severally represent and warrant
to Mallinckrodt as of the date hereof and as of the Closing Date,
as follows:
4.1 Organization, Standing and Power of GRC and Newco.
-------------------------------------------------
Each of GRC and Newco is a corporation duly organized and validly
existing in good standing under the laws of Delaware and has the
requisite power and authority to carry on its businesses as
conducted on the date hereof. Newco has previously delivered to
Mallinckrodt true and complete copies of its Certificate of
Incorporation and Bylaws, both of which documents are in full
force and effect and have not been amended, modified, or
rescinded.
4.2 Standing of GRC and Newco. Each of GRC and Newco is
-------------------------
duly qualified to transact business, and is in good standing, in
each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so
qualified would not reasonably be expected to have a material
adverse effect on Newco or GRC.
4.3 Capital Structure. The authorized capital of Newco
-----------------
consists of 100 common shares, $1.00 par value per share, and, as
of the Closing Date, that certain amount of shares of 5.5%
preferred shares, with a stated value of $1,000 per share, which
will be issued by Newco in connection with the consummation of
the transactions contemplated under this Contribution Agreement
(collectively, the "NEWCO STOCK"). At all times prior to the
Closing of this Contribution Agreement, no preferred shares are
issued and outstanding, and no shares of capital stock are held
in the treasury of Newco. All of the issued and outstanding
shares of Newco Stock were duly and validly authorized and
issued, are fully paid and nonassessable, and are free of
preemptive rights. Roche owns all of the issued and outstanding
shares of Newco Stock, free and clear of all security interests,
liens, claims, pledges, voting rights, charges and encumbrances
of any nature whatsoever. The authorized capital of GRC consist
of 1,500 common shares, $1.00 par value per share, of which 1,500
shares are issued and outstanding, and none of which shares are
held in the treasury of GRC. All of the issued and outstanding
shares G-R Stock were duly and validly authorized and issued, are
fully paid and nonassessable, and are free of preemptive rights.
Roche owns all of the issued and outstanding shares of G-R Stock,
free and clear of all security interests, liens, claims, pledges,
voting rights, charges and other encumbrances of any nature
whatsoever. On the Closing Date, Newco will own all of the
issued and outstanding shares of G-R Stock, free and clear of all
security interests, liens, claims, pledges, voting rights,
charges and other encumbrances of any nature whatsoever.
4.4 Newco Preferred Stock. The preferred stock of Newco
---------------------
required to be issued to Mallinckrodt pursuant to Section 2.2
(the "NEWCO PREFERRED STOCK") shall, when so issued, be duly
authorized, validly issued and outstanding and fully paid and
nonassessable and shall not be subject to any liens,
restrictions, voting trusts or other claims or encumbrances of
any nature. The terms of the Newco Preferred Stock shall be as
set forth in the Term Sheet attached as APPENDIX A hereto, and
upon and after the filing of the Certificate of Designation with
the Secretary of State of the State of Delaware, the rights and
preferences of the Newco Preferred Stock set forth in such
Certificate of Designation shall be legal, valid and enforceable
by any holder of Newco Preferred Stock.
4.5 Rights to Acquire Equity of GRC and Newco. Except
-----------------------------------------
pursuant to this Contribution Agreement or the Certificate of
Designation, there are no options, warrants, calls, rights or
agreements to which Roche, GRC or Newco is a party obligating
Roche, GRC or Newco to issue, deliver, sell, repurchase, redeem,
or otherwise acquire or cause to be issued, delivered, sold,
repurchased or otherwise acquired additional shares of capital
stock of GRC or Newco, or obligating Roche, GRC or Newco to
grant, extend or enter into any such option, warrant, call, right
or agreement.
4.6 Authority to Enter Into Contribution Agreement. Each
----------------------------------------------
of Roche and Newco has all requisite power and authority to enter
into this Contribution Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of
this Contribution Agreement by each of Roche and Newco and the
consummation by Roche and Newco of the transactions contemplated
hereby have been duly authorized by all necessary action on the
part of Newco. This Contribution Agreement has been duly
executed and delivered by each of Roche and Newco and (assuming
the due authorization, execution and delivery thereof by
Mallinckrodt) constitutes a valid and binding obligation of each
of Roche and Newco, enforceable against each of Roche and Newco
in accordance with its terms.
4.7 Authority to Enter Into Keepwell Agreement. Roche has
------------------------------------------
all requisite power and authority to enter into the Keepwell
Agreement and to consummate the transactions contemplated
thereby. The execution and delivery of the Keepwell Agreement by
Roche and the consummation by Roche of the transactions
contemplated thereby have been duly authorized by all necessary
corporate action on the part of Roche. The Keepwell Agreement
shall, when duly executed and delivered by Roche (and assuming
the due authorization, execution and delivery thereof by
Mallinckrodt), constitute a valid and binding obligation of
Roche, enforceable against Roche in accordance with its terms.
4.8 Consents and Approvals; No Violation. The execution
------------------------------------
and delivery by Roche of the Keepwell Agreement and this
Contribution Agreement, and the execution and delivery by Newco
of this Contribution Agreement will not, and the consummation of
the transactions contemplated hereby and thereby and compliance
with the provisions hereof and thereof will not, result in any
violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to the loss of
a material benefit under, (i) any provision of the charter or
organizational documents of any of Roche, Newco or GRC, (ii) any
loan or credit agreement, note, bond, mortgage, indenture, lease,
agreement, instrument, permit, concession, franchise or license
by which any of Roche, Newco or GRC is bound or (iii) any
judgment, order, decree, statute, law, ordinance, rule or
regulation by which any of Roche, Newco or GRC is bound or to
which any of their respective properties or assets is subject,
other than, in the case of clauses (ii) and (iii), any such
violations, defaults, rights, liens, security interests, charges
or encumbrances that would not reasonably be expected to have a
material adverse effect on Roche, GRC or Newco, and would not
impair the ability of Roche to perform its obligations under the
Keepwell Agreement and this Contribution Agreement or the ability
of Newco to perform its obligations under this Contribution
Agreement, prevent the consummation by Roche, GRC or Newco of the
transactions contemplated by the Keepwell Agreement or this
Contribution Agreement or, other than by reason of any act or
omission of Mallinckrodt, materially and adversely affect the
rights and benefits of Mallinckrodt under the Keepwell Agreement
and this Contribution Agreement. No filing or registration with,
or authorization, consent or approval of, any Governmental
Authority is required by or with respect to Roche in connection
with the execution and delivery by Roche of the Keepwell
Agreement or the consummation by Roche of the transactions
contemplated by the Keepwell Agreement.
4.9 Financial Statements. The Roche Financial Statements
--------------------
fairly present the consolidated financial condition of Roche and
its Consolidated Subsidiaries as at the respective dates of the
Roche Financial Statements and the consolidated income and cash
flows of Roche and its Consolidated Subsidiaries for the periods
ending on the respective dates of the Roche Financial Statements.
The GRC Financial Statements fairly present the consolidated
financial condition of GRC and its Consolidated Subsidiaries as
of the respective dates of the GRC Financial Statements and the
consolidated income and cash flows of GRC and its Consolidated
Subsidiaries for the periods ending on the respective dates of
the GRC Financial Statements. Each of the Roche Financial
Statements and the GRC Financial Statements were prepared in
accordance with GAAP applied on a consistent basis (except as
otherwise indicated in such financial statements or the notes
thereto), subject, in the case of unaudited interim financial
statements, to normal recurring year-end adjustments. Since the
date of the most recent of the Roche Financial Statements, there
has been no material adverse change in Roche. Since the date of
the most recent GRC Financial Statements, there has been no
material adverse change in GRC. Newco is a newly formed
corporation and Newco has never conducted any business. Except
for Newco's right and obligations under this Contribution
Agreement, Newco does not have any assets or liabilities.
4.10 Orders, Actions, Etc. There are no outstanding orders,
---------------------
judgments, injunctions, awards or decrees of any Governmental
Authority against either of GRC or Newco or any of their
properties, assets or businesses that would reasonably be
expected to have a material adverse effect on either of GRC or
Newco. There are no actions, suits or claims or legal,
administrative or arbitration proceedings or investigations
pending against or, to Newco's or Roche's knowledge, threatened
against or affecting, either of GRC or Newco or any of their
properties, assets or businesses that would reasonably be
expected to have a material adverse effect on either of GRC or
Newco. There are no actions, suits or claims or legal,
administrative or arbitration proceedings or investigations
pending against or, to Newco's or Roche's knowledge, threatened
against or affecting, any of Newco, GRC or Roche or any of their
properties, assets or businesses relating to the transactions
contemplated by this Contribution Agreement.
4.11 Financial Capabilities. Roche and Newco have, and on
----------------------
the Closing Date will have, readily available credit, or access
thereto, in an amount sufficient to enable Roche to satisfy the
condition set forth in Section 10.2.6 of this Contribution
Agreement on or before the Closing Date.
4.12 No Intention to Dispose of Newco Common Stock. Roche
---------------------------------------------
has no present plan or intention to sell, exchange, transfer by
gift or otherwise dispose of the common stock of Newco to be
received by Roche upon its contribution of the G-R Stock to Newco
pursuant to this Contribution Agreement.
5. COVENANTS OF MALLINCKRODT
-------------------------
5.1 Noncompetition. During the period commencing on the
--------------
Closing Date and continuing until the third annual anniversary of
the Closing Date (the "NONCOMPETITION PERIOD"), Mallinckrodt
shall not, directly or indirectly, own, manage, operate or
control any business anywhere in the world which develops,
manufactures and sells ingredients and compounds used primarily
to provide flavor or taste in food and beverage products in
competition with the Business conducted by the Companies on the
date hereof (a "COMPETITIVE BUSINESS"); provided, however, that
the foregoing covenant shall not prohibit, or be interpreted as
prohibiting, Mallinckrodt from (i) continuing in any line of
business conducted by Mallinckrodt or any division or affiliate
of Mallinckrodt (other than the Companies and F&F) on the date
hereof, regardless of whether any such business is a Competitive
Business; (ii) conducting research and development for, or
manufacturing and selling raw materials to, a Competitive
Business; (iii) developing, manufacturing or selling ingredients
and compounds used in food and beverage products primarily for
purposes other than to provide flavor or taste; (iv) entering
into any relationship with a person or entity not owned, managed,
operated or controlled by Mallinckrodt for purposes unrelated to
the business of developing, manufacturing or selling ingredients
and compounds used primarily to provide flavor or taste in food
and beverage products, regardless of whether such person or
entity conducts a Competitive Business; (v) making equity
investments in publicly owned companies which conduct a
Competitive Business, provided such investments do not confer
upon Mallinckrodt more than 10% of the equity of such company;
(vi) retaining or acquiring additional equity in Newco; or (vii)
acquiring control of any person or entity which conducts a
Competitive Business if Mallinckrodt commences, within six (6)
months of such acquisition, transfer to a person or entity which
is not an Affiliate of Mallinckrodt of that portion of the
business of such person or entity as constitutes a Competitive
Business upon terms and conditions and at a price determined by
Mallinckrodt in its sole discretion, and thereafter diligently
pursues such transfer.
5.2 Documents to be delivered by Mallinckrodt at Closing.
----------------------------------------------------
On the Closing Date, and in addition to any other documents
required to be delivered pursuant to this Contribution Agreement
or the Wrap Agreement, Mallinckrodt shall deliver (or cause to be
delivered) to Roche the following, in form and substance
reasonably satisfactory to Roche:
(A) certificates representing all of the F&F Stock
registered on the books of F&F in the name of Newco;
(B) stock books, stock ledgers, minute books and corporate
seals of F&F;
(C) certificates of good standing for F&F from the
Secretary of State of the State of Delaware dated
within twenty (20) days of the Closing Date, together
with a bringdown telegram from the Secretary of State
of the State of Delaware dated the Closing Date,
relating to such certification of good standing;
(D) a copy of the Certificate of Incorporation of F&F
certified by the Secretary of State of the State of
Delaware to be a true and complete copy thereof, which
certification by said Secretary of State shall be dated
within twenty (20) days of the Closing Date;
(E) a copy of F&F's Certificate of Incorporation and
current Bylaws certified as of and at the Closing Date
by the Secretary of F&F to be true and complete copies
of such documents and further certified as of and at
the Closing Date to be in full force and effect without
amendment;
(F) receipts for the Newco Preferred Stock delivered on the
Closing Date by Newco pursuant to Section 2.2 hereof;
and
(G) duly executed assignments of all Intellectual Property
owned by the Companies, including, without limitation,
all Intellectual Property listed in Schedule 3.18 of
the Disclosure Schedule to the Wrap Agreement, and
registered in the name of Mallinckrodt or an Affiliate
of Mallinckrodt and which has not been previously
formally assigned to or registered in the name of any
of the Companies.
5.3 Confidentiality. After Closing, Mallinckrodt and its
---------------
Affiliates will hold, and will use their best efforts to cause
their respective officers, directors and employees to hold, in
confidence, unless compelled to disclose by judicial or
administrative process or by other requirements of law, all
confidential documents and information concerning the Companies
and the Business, except to the extent that such information was:
(a) previously known on a nonconfidential basis by Mallinckrodt;
(b) in the public domain through no fault of Mallinckrodt;
(c) later lawfully acquired by Mallinckrodt from any source other
than one related to Mallinckrodt's prior ownership of the
Companies, which source was not bound by any confidentiality
obligation; or (d) disclosed for purposes of litigation
prosecution or defense, Tax return preparation or payment,
reporting historical financial results and other proper business
purposes. Notwithstanding anything in this Section 5.3 to the
contrary, the obligation of Mallinckrodt and its Affiliates to
hold any such information in confidence shall be satisfied if
they exercise the same care with respect to such information as
they would take to preserve the confidentiality of their own
similar information.
5.4 Distributions. Mallinckrodt shall not permit F&F to
-------------
distribute to Mallinckrodt, any Affiliate of Mallinckrodt or any
other entity prior to the Closing any proceeds of the sale of the
F&F Tastemaker B.V. Interest received by F&F pursuant to the F&F
Transaction Agreement.
5.5 Responsibility for F&F Transaction. Mallinckrodt shall
----------------------------------
cause F&F to fully and timely fulfill and perform, and
Mallinckrodt hereby unconditionally guarantees the full and
timely performance and fulfillment by F&F of, all of F&F's
obligations under the F&F Transaction Agreement required to be
performed or fulfilled by F&F prior to the completion of the
closing of the transactions contemplated by the F&F Transaction
Agreement; provided, however, that upon and after completion of
the closing of the transactions contemplated by the F&F
Transaction Agreement (i) Mallinckrodt shall be fully and finally
released of all liabilities, responsibilities and obligations
with respect to all representations, warranties, covenants,
agreements and other obligations of F&F under the F&F Transaction
Agreement, and (ii) no claim may be asserted or maintained
against Mallinckrodt with respect to any representation,
warranty, covenant, agreement or other obligation under the F&F
Transaction Agreement and all such claims shall be, and hereby
are, forever released, waived and barred. Notwithstanding
anything in this Contribution Agreement and in the F&F
Transaction Agreement to the contrary, the parties to this
Contribution Agreement acknowledge and agree that pursuant to the
Wrap Agreement, each of Roche, GRI, Hercules and Mallinckrodt
have acknowledged and agreed that in entering into, and
consummating the transactions contemplated by, and after the
consummation of the transactions contemplated by, the F&F
Transaction Agreement, GRI and Mallinckrodt, on behalf of itself
and F&F, are relying upon, and are entitled to rely upon, the
representations, warranties and covenants of Roche, GRI, Hercules
and Mallinckrodt set forth in the Wrap Agreement. Each of Roche,
Newco and Mallinckrodt further acknowledges and agrees that in
entering into, and consummating the transactions contemplated by,
and after the consummation of the transactions contemplated by,
the F&F Transaction Agreement, GRI and Mallinckrodt, on behalf of
itself and F&F, are relying upon, and are entitled to rely upon,
the representations, warranties and covenants of Roche, Newco and
Mallinckrodt set forth in this Contribution Agreement.
5.6 Operations. From the date hereof to the Closing Date,
----------
Mallinckrodt shall cause F&F to: (i) conduct its operations in
compliance with applicable laws and only in the ordinary course
consistent with past practices; (ii) use best efforts to maintain
its properties, assets and facilities in their present condition,
reasonable use and ordinary wear and tear excepted; and (iii)
continue to maintain insurance with coverages, deductibles and
limits as exist on the date of this Contribution Agreement.
6. COVENANTS OF ROCHE
------------------
6.1 Deliveries. On or before the Closing Date, Roche shall
----------
deliver or cause to be delivered to Mallinckrodt unaudited
consolidated balance sheets and income statements of Roche and
its Consolidated Subsidiaries as at and for the interim period
ending on the last day of the most recent accounting month of
Roche prior to the Closing Date for which such statements are
available. The foregoing statements to be delivered by Roche to
Mallinckrodt shall be prepared in accordance with the customary
accounting practices, procedures and policies of Roche used in
connection with regularly prepared, internal financial
statements.
6.2 Certificate of Designation. On or prior to the
--------------------------
Closing, Newco shall file with the Secretary of State of the
State of Delaware a Certificate of Designation with respect to
the Newco Preferred Stock, which Certificate of Designation (the
"CERTIFICATE OF DESIGNATION") shall be consistent with the Term
Sheet and otherwise acceptable in form and substance to
Mallinckrodt and the issuer of the Letter of Credit.
6.3 Keepwell Agreement. On the Closing Date, Roche shall
------------------
duly execute and deliver to Mallinckrodt a Keepwell Agreement.
6.4 Contribution of G-R Stock. On or prior to the
-------------------------
contribution by Mallinckrodt of the stock of F&F to Newco in
exchange for Newco Preferred Stock as provided in Section 2.1
above, Roche shall cause appropriate share transfer instruments
relating to the G-R Stock to be delivered to Newco in exchange
for shares of common stock of Newco, representing (in conjunction
with the common stock of Newco previously issued to Roche) one
hundred percent (100%) of the issued and outstanding common stock
of Newco.
6.5 Documents to be Delivered by Newco and Roche at
-----------------------------------------------
Closing. On the Closing Date, in addition to any other documents
-------
required to be delivered pursuant to this Contribution Agreement
or the Wrap Agreement, Newco and Roche shall deliver (or cause to
be delivered) to Mallinckrodt the following, in form and
substance reasonably satisfactory to Mallinckrodt:
(A) certificates representing the number of shares of Newco
Preferred Stock to be delivered on the Closing Date
duly registered in Mallinckrodt's name;
(B) a certificate of good standing for each of Roche and
Newco from the Secretary of State of the State of
Delaware dated within twenty (20) days of the Closing
Date, together with a bringdown telegram from the
Secretary of State of the State of Delaware dated the
Closing Date, relating to such good standing
certificates;
(C) a copy of the Certificate of Incorporation, including
the Certificate of Designation, of Newco certified by
the Secretary of State of the State of Delaware to be a
true and complete copy thereof, which certification by
said Secretary of State shall be dated within twenty
(20) days of the Closing Date;
(D) a copy of Newco's Certificate of Incorporation,
including the Certificate of Designation and current
Bylaws certified by the Secretary of Newco to be true
and complete copies of such documents and further
certified to be in full force and effect without
amendment;
(E) evidence of the transfer to Newco of all of the G-R
Stock; and
(F) receipts for the F&F Stock and the other items
delivered pursuant to Section 5.2 hereof.
7. MUTUAL COVENANTS OF MALLINCKRODT, NEWCO AND ROCHE
-------------------------------------------------
7.1 Satisfaction of Conditions. From and after the date
--------------------------
hereof, each of Mallinckrodt, Newco and Roche shall use their
best efforts (individually or jointly, as the case may be) to
cause all conditions precedent set forth in Sections 10.1 and
10.2 of this Contribution Agreement (as appropriate to each of
them) to be satisfied and fulfilled at the earliest practicable
date, to the extent the satisfaction or fulfillment thereof is
its responsibility hereunder or within its reasonable control.
If any event should occur, either within or without the control
of any party hereto, which would prevent fulfillment of the
conditions precedent to the obligations of any party to
consummate the transactions contemplated by this Contribution
Agreement, each of the parties shall use its best efforts to cure
or remove the effect of the event as expeditiously as possible;
provided, however, that (without limitation) nothing set forth in
-------- -------
this Section 7.1 shall be construed as requiring any party to
institute litigation or expend any sums in the defense or
settlement of litigation in order to cure or remove the effect of
any such event.
7.2 Further Assurances. After the Closing Date, each of
------------------
Mallinckrodt, Newco and Roche shall, from time to time upon any
other party's request, execute, acknowledge and deliver, or cause
to be executed, acknowledged and delivered, all such further
assignments, documents, instruments, transfers, conveyances,
discharges, releases, assurances and consents, and shall take or
cause to be taken such further actions, as such other party may
reasonably request to further evidence or carry out the
transactions contemplated by, and the purposes of, this
Contribution Agreement.
7.3 Preservation of Tax Free Status of Contribution.
-----------------------------------------------
Following the Closing, none of Roche, Newco or Mallinckrodt shall
take any actions, or fail to take any action, that causes
Mallinckrodt's contribution of the capital stock of F&F to Newco,
or Roche's contribution of the G-R Stock to Newco, not to qualify
as tax free (except to the extent of the receipt pursuant to this
Contribution Agreement of "other property or money" within the
meaning of Section 351(b) of the Code) under Section 351 of the
Code.
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
-------------------------------------------
COVENANTS; INDEMNITY FOR DAMAGES
--------------------------------
8.1 Survival. All representations and warranties of the
--------
parties made in this Contribution Agreement, and all covenants
and agreements of the parties made in this Contribution Agreement
and required to be performed on or before the Closing Date, shall
survive until 5:00 p.m. Eastern Standard Time on the second
annual anniversary of the Closing Date, notwithstanding any
investigation heretofore made or omitted by the parties, and
shall expire and be of no further force and effect after such
time; provided, however, that the representations and warranties
in Sections 3.1, 3.2, 3.3, 3.4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 and
4.7 shall survive indefinitely and the representations and
warranties contained in Section 3.16 shall survive until the
expiration of the statute of limitations applicable to the
matters covered thereby (giving effect to any waiver, mitigation
or extension thereof by Mallinckrodt) or, if none is applicable,
the second annual anniversary of the Closing Date, and the
representations and warranties contained in Sections 3.15 and
4.12 and the covenants contained in Section 7.3 shall survive
until the expiration of the statute of limitations (giving effect
to any waiver, mitigation or extension thereof) applicable to the
United States federal income tax period of, in the case of
Sections 4.12 and 7.3 (insofar as either Section contains a
covenant of Roche), Mallinckrodt and, in the case of Sections
3.15 and 7.3 (insofar as either Section contains a covenant of
Mallinckrodt), Roche, in which the consummation of this
Contribution Agreement occurs. No party will have any liability
to any other party arising out of a breach of any representation
or warranty contained in this Contribution Agreement or of any
covenant or agreement made in this Contribution Agreement and
required to be performed on or before the Closing Date, unless
the party claiming that such breach occurred gives to the other
party hereto written notice and a detailed explanation of the
alleged breach at or before 5:00 p.m. Eastern Standard Time on
the last day of the applicable survival period; provided,
however, that if notice of a claim is timely given, the claim
specified in such notice, and the specific representation,
warranty, covenant or agreement upon which any such claim is
based, shall survive until such claim has been finally resolved.
8.2 Limitations of Remedies. The indemnification remedy
-----------------------
set forth in Article 8 of the Wrap Agreement and in the Tax Annex
and any injunctive or other equitable relief to which any party
may be entitled from a court of appropriate jurisdiction shall be
the sole remedies to which any party hereto is entitled for any
breach or non-compliance with the provisions of this Contribution
Agreement, or any agreement, instrument or document delivered in
connection herewith. Any recovery of Damages pursuant to the
indemnification remedy set forth in this Section 8 and Article 8
of the Wrap Agreement, shall be limited to a recovery of
compensatory damages and shall not include any special, punitive,
exemplary, incidental or consequential damages or damages of any
similar type; provided that any such non-compensatory damages
shall be recoverable if and to the extent awarded by a court or
other adjudicate body of appropriate jurisdiction and authority
at an outcome of any third party claim for which indemnification
is otherwise available hereunder.
8.3 Indemnification Procedures. The parties agree that the
--------------------------
procedures for asserting claims for indemnification and recovery
of Damages shall be as set forth in Article 8 of the Wrap
Agreement.
8.4 Claims Made in Written Notice. All claims for
-----------------------------
indemnification hereunder shall be made in a written notice
setting forth, with particularity, the nature of the claim for
which indemnification is sought. All parties agree that no claim
for indemnification shall be made hereunder unless the party
requesting indemnification shall have a good faith belief that it
is entitled to indemnification hereunder.
9. RESOLUTION OF DISPUTES
----------------------
9.1 Conclusive and Exclusive. Each and all disputes under
------------------------
this Contribution Agreement shall be conclusively and exclusively
resolved in accordance with the terms and conditions set forth in
Section 9 of the Wrap Agreement.
9.2 Forum and Waivers. EACH OF NEWCO, ROCHE AND
-----------------
MALLINCKRODT AGREES THAT, EXCEPT TO THE EXTENT OTHERWISE PROVIDED
IN THE TAX ANNEX TO THE WRAP AGREEMENT, ANY ACTION, SUIT OR
PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS CONTRIBUTION
AGREEMENT, ITS VALIDITY OR PERFORMANCE, SHALL BE INITIATED AND
PROSECUTED AS TO ALL PARTIES AND THEIR SUCCESSORS AND ASSIGNS AT
NEW YORK, NEW YORK, WHICH SHALL BE THE EXCLUSIVE FORUM FOR ALL
SUCH ACTIONS, SUITS OR PROCEEDINGS. EACH OF NEWCO, ROCHE AND
MALLINCKRODT CONSENTS TO AND SUBMITS TO THE EXERCISE OF
JURISDICTION OVER ITS PERSON BY ANY STATE OR FEDERAL COURT
SITUATED AT NEW YORK, NEW YORK HAVING JURISDICTION OVER THE
SUBJECT MATTER, WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
CERTIFIED MAIL DIRECTED TO THE PARTIES AT THEIR RESPECTIVE
ADDRESSES SET FORTH IN SECTION 11.3 OR AS OTHERWISE PROVIDED
UNDER THE LAWS OF THE STATE OF NEW YORK. EACH OF NEWCO, ROCHE
AND MALLINCKRODT WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER, AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. EACH OF
NEWCO, ROCHE AND MALLINCKRODT HEREBY RECIPROCALLY AND IRREVOCABLY
WAIVES TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE RELATING TO
THIS CONTRIBUTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
10. CONDITIONS PRECEDENT
--------------------
10.1 Conditions to Obligations of Newco and Roche. The
--------------------------------------------
obligations of each of Newco and Roche to consummate the
transactions contemplated by this Contribution Agreement are
subject to the satisfaction or waiver by Newco and Roche in
writing of each of the following conditions precedent:
10.1.1 Accuracy of Representations and Warranties.
------------------------------------------
The representations and warranties of Mallinckrodt made herein
shall be true and correct in all material respects on the Closing
Date.
10.1.2 Performance of Agreements. Mallinckrodt
-------------------------
shall have performed in all material respects all obligations and
agreements and complied in all material respects with all
covenants and conditions contained in this Contribution Agreement
to be performed and complied with by it on or prior to the
Closing Date.
10.1.3 Officer's Certificate. Newco and Roche shall
---------------------
have received from Mallinckrodt a certificate dated the Closing
Date signed by a duly authorized officer of Mallinckrodt
certifying to each of Newco and Roche that the representations
and warranties of Mallinckrodt made herein are true and correct
in all material respects on the Closing Date as if made at and as
of such date and that Mallinckrodt has performed in all material
respects all obligations and agreements and complied in all
material respects with all covenants and conditions contained in
this Contribution Agreement to be performed and complied with by
it at or prior to the Closing Date.
10.1.4 Wrap Agreement Conditions. All of the
-------------------------
conditions precedent to the obligations of the Interested Persons
set forth in the Wrap Agreement shall have been satisfied or
waived in writing by the Interested Persons.
10.1.5 Legal Opinions. Each of Newco and Roche
--------------
shall have received the legal opinion, dated as of the Closing
Date, of Mallinckrodt's Vice President and General Counsel with
respect to those matters set forth in APPENDIX C to this
Contribution Agreement.
10.2 Conditions to Obligations of Mallinckrodt. The
-----------------------------------------
obligations of Mallinckrodt to consummate the transactions
contemplated by this Contribution Agreement are subject to the
satisfaction or waiver by Mallinckrodt in writing of each of the
following conditions precedent:
10.2.1 Accuracy of Representations and Warranties.
------------------------------------------
The representations and warranties of Newco and Roche made herein
shall be true and correct in all material respects on the Closing
Date.
10.2.2 Performance of Agreements. Each of Newco and
-------------------------
Roche shall have performed in all material respects all
obligations and agreements and complied in all material respects
with all covenants and conditions contained in this Contribution
Agreement to be performed and complied with by it on or prior to
the Closing Date.
10.2.3 Officer's Certificates. Mallinckrodt shall
----------------------
have received from each of Newco and Roche a certificate dated
the Closing Date signed by a duly authorized officer of each of
Newco and Roche certifying that the representations and
warranties of Newco and Roche made herein are true and correct in
all material respects on the Closing Date as if made at and as of
such date and that Newco and Roche have performed in all material
respects all obligations and agreements and complied in all
material respects with all covenants and conditions contained in
this Contribution Agreement to be performed or complied with by
them at or prior to the Closing Date.
10.2.4 Wrap Agreement Conditions. All of the
-------------------------
conditions precedent to the obligations of Hercules and
Mallinckrodt set forth in the Wrap Agreement shall have been
satisfied or waived in writing by each of Hercules and
Mallinckrodt.
10.2.5 Legal Opinions. Mallinckrodt shall have
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received the legal opinion, dated as of the Closing Date, of the
General Counsel and Vice President of Xxxxxxxx-XxXxxxx Inc. with
respect to those matters set forth in APPENDIX D to this
Contribution Agreement.
10.2.6 Release of Guaranties. Mallinckrodt shall
---------------------
have been fully and finally released from all liabilities,
obligations and responsibilities with respect to any and all
indebtedness of F&F and the Companies, including, without
limitation, Mallinckrodt's liabilities, obligations and
responsibilities with respect to the F&F Debt and Mallinckrodt's
guarantee thereof and with respect to the Tastemaker Debt and
Mallinckrodt's guarantee thereof.
10.2.7 Letter of Credit. Mallinckrodt shall have
----------------
received an irrevocable stand-by letter issued by Xxxxxx Guaranty
Trust Company in an amount not less than the stated value of the
Newco Stock issued to Mallinckrodt at Closing consistent with the
Commitment Letter attached as APPENDIX E to this Contribution
Agreement (the "LETTER OF CREDIT").
11. MISCELLANEOUS
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11.1 Termination and Cancellation. This Contribution
----------------------------
Agreement may be terminated and the transactions contemplated
herein may be abandoned at any time prior to Closing:
11.1.1 By the mutual written consent of the parties
hereto;
11.1.2 By any party hereto if neither the
terminating party nor an Affiliate of the terminating party is
then in material breach of its obligations under any of the
Transaction Documents or the D&F Transaction Agreements if the
Closing Date has not occurred on or before the Closing Deadline;
11.1.3 By either of Mallinckrodt or Roche if any of
the Wrap Agreement, the Hercules Transaction Agreement or the D&F
Transaction Agreements is terminated in accordance with the terms
thereof prior to consummation of the transactions contemplated
thereby;
11.1.4 By Roche if any of the conditions precedent
set forth in Section 10.1 have not been satisfied on or before
the date established as the Closing Date (as the same may be
extended pursuant to Section 10.3 of the Wrap Agreement);
11.1.5 By Mallinckrodt if any of the conditions
precedent set forth in Section 10.2 have not been satisfied on or
before the date established as the Closing Date (as the same may
be extended pursuant to Section 10.3 of the Wrap Agreement); or
11.1.6 By any party hereto if neither the
terminating party nor an Affiliate of the terminating party is
then in material breach of its obligations hereunder if another
party hereto has materially breached any covenant herein, such
breach is within the reasonable control of the breaching party
and either (i) such breach is not capable of being cured or
corrected or (ii) the breaching party has not cured or corrected
such breach within ten (10) days after receipt of notice of such
breach.
11.1.7 By any party hereto if there shall be any law
or regulation adopted subsequent to the date hereof that makes
consummation of the transactions contemplated hereby illegal or
otherwise prohibited or if consummation of the transactions
contemplated hereby would violate any nonappealable final order,
decree or judgment of any court or governmental body having
competent jurisdiction.
11.2 Effect of Termination. Upon any termination of this
---------------------
Contribution Agreement, each party hereto shall bear all expenses
incurred by it in connection with the negotiation, preparation,
execution and performance of this Contribution Agreement. No
such termination shall relieve any party hereto of any liability
for a breach of or default under this Contribution Agreement,
which liability including all expenses of each party hereto
incurred in connection with the negotiation, preparation,
execution and performance of this Contribution Agreement, shall
continue notwithstanding such termination. The provisions of
Section 5.3 hereof shall survive any termination of this
Contribution Agreement.
11.3 Notices. All notices, requests, consents, approvals,
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waivers and other communications hereunder shall be in writing
and shall be deemed given or delivered on the earlier of (i) the
date actually received if properly addressed and delivered to the
addresses for notices set forth herein, regardless of how sent,
or (ii) five (5) business days after being mailed by United
States certified or registered mail, return receipt requested,
with postage prepaid, in each case addressed in accordance with
the following:
11.3.1 Mallinckrodt Notice Address. Notices and
---------------------------
other communications to Mallinckrodt shall be sent to the
following addresses:
Mallinckrodt Inc.
000 XxXxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, President and
Chief Operating Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a required copy to:
Mallinckrodt Inc.
000 XxXxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Vice President and General
Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or to such other addresses as Mallinckrodt may from time to time
designate in a notice pursuant to this Section 11.3.
11.3.2 Newco and Roche Notice Address. Notices and
------------------------------
other communications to Newco and/or Roche shall be sent to the
following addresses:
Roche Holdings, Inc.
00 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a required copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or to such other addresses as Newco may from time to time
designate in a notice pursuant to Section 11.3.
11.4 Assignment. None of Mallinckrodt, Newco or Roche shall
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assign this Contribution Agreement, or any rights hereunder, by
operation of law or otherwise, without the prior written consent
of the other parties hereto.
11.5 Waiver. No waiver of any provision hereof shall be
------
effective unless such waiver is set forth in a writing signed by
the party to be charged thereby, and then such written waiver
shall be effective only in the instance and for the purpose
specified therein. No failure or delay on the part of any party
in exercising any right, power or privilege under this
Contribution Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
11.6 Amendments. This Contribution Agreement may be amended
----------
or modified in whole or in part only by a duly authorized written
agreement that refers to this Contribution Agreement and is
signed by all of the parties hereto.
11.7 Limitations on Rights of Third Parties. Nothing
--------------------------------------
express or implied in this Contribution Agreement is intended or
shall be construed to confer upon or give any person or entity
other than Mallinckrodt, Newco and Roche any rights under this
Contribution Agreement; provided, however, that GRI shall be
deemed a third-party beneficiary of this Agreement with respect
to the representations and warranties of Mallinckrodt set forth
in ARTICLE 3 hereof. Any claim brought by GRI against
Mallinckrodt with respect to such representations and warranties
shall be subject to any defense which Mallinckrodt would have if
it were Roche, rather than GRI, bringing such claim.
11.8 Counterparts. This Contribution Agreement may be
------------
executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
11.9 Governing Law. This Contribution Agreement shall be
-------------
governed by and construed and enforced in accordance with the
laws of the State of New York of the United States of America,
without giving effect to its conflict of law principles.
11.10 Entire Agreement. This Contribution Agreement and
----------------
the Wrap Agreement constitute and contain the entire agreements
between Mallinckrodt, Newco and the Interested Persons with
respect to the subject matter hereof and thereof and supersede
all other agreements, written or oral, made prior to the date
hereof or contemporaneously herewith and relating to the
transactions contemplated by the Transaction Documents. No
representation, warranty, covenant or agreement relating to the
transactions contemplated by this Contribution Agreement and the
Wrap Agreement shall be binding upon any party hereto unless
expressly set forth in this Contribution Agreement or the Wrap
Agreement, and then only to the extent so provided in such
agreements.
IN WITNESS WHEREOF, the parties have executed this
Contribution Agreement as of the day and year first above
written.
MALLINCKRODT INC.
By: ______________________
Name: ______________________
Title: ______________________
ROCHE HOLDINGS, INC.
By: ______________________
Name: ______________________
Title: ______________________
GIVAUDAN-ROURE (UNITED STATES) INC.
By: ______________________
Name: ______________________
Title: ______________________
