FORM OF SEPARATION AND DISTRIBUTION AGREEMENT AMONG CADBURY PLC, CADBURY SCHWEPPES PLC AND DR PEPPER SNAPPLE GROUP, INC. Dated as of [_______], 2008
Exhibit 2.1
FORM
OF
AMONG
CADBURY PLC,
CADBURY SCHWEPPES PLC
AND
XX XXXXXX SNAPPLE GROUP, INC.
Dated as of [_______], 2008
Table of Contents
Page | ||||||||
ARTICLE I DEFINITIONS AND INTERPRETATION | 1 | |||||||
Section 1.01 | Certain Defined Terms | 1 | ||||||
Section 1.02 | Interpretation and Rules of Construction | 16 | ||||||
ARTICLE II THE SEPARATION | 16 | |||||||
Section 2.01 | Transfer of Assets | 16 | ||||||
Section 2.02 | Assumption and Satisfaction of Liabilities | 18 | ||||||
Section 2.03 | Intercompany Balances | 18 | ||||||
Section 2.04 | Transfers Not Effected on or Prior to the Demerger Effective Time; Transfers Deemed Effective as of the Demerger Effective Time | 19 | ||||||
Section 2.05 | Transfer Documents | 20 | ||||||
Section 2.06 | Further Assurances | 20 | ||||||
Section 2.07 | Replacement of Guarantors and Obligors | 21 | ||||||
Section 2.08 | Disclaimer of Representations and Warranties | 22 | ||||||
ARTICLE III CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTION | 23 | |||||||
Section 3.01 | Certificate of Incorporation; Bylaws | 23 | ||||||
Section 3.02 | Directors | 23 | ||||||
Section 3.03 | Resignations | 23 | ||||||
Section 3.04 | Ancillary Agreements | 23 | ||||||
ARTICLE IV THE DISTRIBUTION | 23 | |||||||
Section 4.01 | The Distribution | 23 | ||||||
Section 4.02 | Fractional Shares | 24 | ||||||
Section 4.03 | Actions in Connection with the Distribution. | 24 | ||||||
Section 4.04 | Distribution Date | 25 | ||||||
Section 4.05 | Conditions to Distribution | 25 | ||||||
Section 4.06 | Consent to the Reduction | 26 | ||||||
ARTICLE V CERTAIN COVENANTS | 26 | |||||||
Section 5.01 | Non-Solicitation of Employees | 26 | ||||||
Section 5.02 | Auditors and Audits; Annual and Quarterly Financial Statements and Accounting | 27 | ||||||
Section 5.03 | CS Obligations | 29 | ||||||
ARTICLE VI INTELLECTUAL PROPERTY MATTERS | 29 | |||||||
Section 6.01 | Cadbury Names and Marks | 29 | ||||||
Section 6.02 | Beverages Names and Marks | 30 | ||||||
Section 6.03 | Memorabilia | 32 | ||||||
Section 6.04 | Additional Licenses | 32 | ||||||
Section 6.05 | Know-How Agreement | 33 | ||||||
Section 6.06 | Domain Names Agreement | 33 |
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Page | ||||||||
ARTICLE VII INDEMNIFICATION | 33 | |||||||
Section 7.01 | Release of Pre-Distribution Claims | 33 | ||||||
Section 7.02 | Indemnification by CS | 35 | ||||||
Section 7.03 | Indemnification by DPS | 36 | ||||||
Section 7.04 | Procedures for Indemnification | 36 | ||||||
Section 7.05 | Cooperation in Defense and Settlement | 38 | ||||||
Section 7.06 | Indemnification Obligations Net of Insurance Proceeds and Other Amounts | 38 | ||||||
Section 7.07 | Additional Matters; Survival of Indemnities | 39 | ||||||
ARTICLE VIII ACCESS TO RECORDS; ACCESS TO INFORMATION; LEGAL AND OTHER MATTERS | 39 | |||||||
Section 8.01 | Provision of Corporate Records | 39 | ||||||
Section 8.02 | Access to Information | 40 | ||||||
Section 8.03 | Disposition of Information | 40 | ||||||
Section 8.04 | Witness Services | 41 | ||||||
Section 8.05 | Reimbursement; Other Matters | 41 | ||||||
Section 8.06 | Confidentiality | 41 | ||||||
Section 8.07 | Privileged Matters | 42 | ||||||
Section 8.08 | Ownership of Information | 43 | ||||||
Section 8.09 | Other Agreements | 44 | ||||||
Section 8.10 | Control of Legal Matters | 44 | ||||||
ARTICLE IX INSURANCE | 46 | |||||||
Section 9.01 | Policies and Rights Included Within Assets | 46 | ||||||
Section 9.02 | Administration; Other Matters | 47 | ||||||
Section 9.03 | Agreement for Waiver of Conflict and Shared Defense | 48 | ||||||
ARTICLE X DISPUTE RESOLUTION | 48 | |||||||
Section 10.01 | Disputes | 48 | ||||||
Section 10.02 | Dispute Resolution | 48 | ||||||
Section 10.03 | Continuity of Service and Performance | 50 | ||||||
ARTICLE XX XXXXXXXXXXX | 00 | |||||||
Section 11.01 | Termination | 50 | ||||||
Section 11.02 | Effect of Termination | 50 | ||||||
Section 11.03 | Amendment | 50 | ||||||
Section 11.04 | Waiver | 50 | ||||||
ARTICLE XII MISCELLANEOUS | 50 | |||||||
Section 12.01 | Limitation of Liability | 50 | ||||||
Section 12.02 | Expenses | 51 | ||||||
Section 12.03 | Notices | 51 | ||||||
Section 12.04 | Public Announcements | 52 | ||||||
Section 12.05 | Severability | 52 | ||||||
Section 12.06 | Entire Agreement | 52 | ||||||
Section 12.07 | Assignment | 52 |
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Page | ||||||||
Section 12.08 | Parties in Interest | 52 | ||||||
Section 12.09 | Currency | 52 | ||||||
Section 12.10 | Tax Matters | 52 | ||||||
Section 12.11 | Employee Matters | 53 | ||||||
Section 12.12 | Governing Law | 53 | ||||||
Section 12.13 | Waiver of Jury Trial | 53 | ||||||
Section 12.14 | Survival of Covenants | 53 | ||||||
Section 12.15 | Counterparts | 53 | ||||||
SCHEDULES | ||||||||
Schedule 1.01(a) | AsiaPac Territory | |||||||
Schedule 1.01(b) | Beverages Assets | |||||||
Schedule 1.01(c) | Beverages Balance Sheet | |||||||
Schedule 1.01(d) | Beverages Liabilities | |||||||
Schedule 1.01(e) | Beverages Litigation Matters | |||||||
Schedule 1.01(f) | Beverages Policies | |||||||
Schedule 1.01(g) | Beverages Shared Policies | |||||||
Schedule 1.01(h) | Cadbury plc Assets | |||||||
Schedule 1.01(i) | Cadbury plc Balance Sheet | |||||||
Schedule 1.01(j) | Cadbury plc Entities | |||||||
Schedule 1.01(k) | Cadbury plc Liabilities | |||||||
Schedule 1.01(l) | Cadbury plc Litigation Matters | |||||||
Schedule 1.01(m) | Continuing Arrangements | |||||||
Schedule 1.01(n) | DPS Entities | |||||||
Schedule 1.01(o) | DPS Transaction Costs | |||||||
Schedule 1.01(p) | Intercompany Balances | |||||||
Schedule 1.01(q) | Territory | |||||||
Schedule 2.01(a) | Transfer of Assets | |||||||
Schedule 2.01(c) | Shared Contracts | |||||||
Schedule 2.07(a) | DPS Guarantees and Obligations | |||||||
Schedule 2.07(d) | Cadbury plc Guarantees and Obligations | |||||||
Schedule 8.10(c)(i) | Cadbury plc Claims | |||||||
Schedule 8.10(c)(ii) | Beverages Claims | |||||||
Schedule 8.10(c)(iii) | Joint Cadbury plc and Beverages Claims | |||||||
EXHIBITS | ||||||||
Exhibit 1.01(a) | Form of Employee Matters Agreement | |||||||
Exhibit 1.01(b) | Form of Tax Sharing Agreement | |||||||
Exhibit 1.01(c) | Form of Transition Services Agreement | |||||||
Exhibit 4.06 | Form of Letter of Consent to Reduction | |||||||
Exhibit 6.06(a) | Form of Know-How Agreement | |||||||
Exhibit 6.07 | Form of Domain Names Agreement |
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SEPARATION
AND DISTRIBUTION AGREEMENT (this “Agreement”), dated as of [___], 2008,
among Cadbury Schweppes plc, a United Kingdom public limited company incorporated in England and Wales with
registered number 0052457 and whose registered office is at 00 Xxxxxxxx
Xxxxxx, Xxxxxx X0X 0XX (“CS”), Xx Xxxxxx
Snapple Group, Inc., a Delaware corporation (“DPS”) and, solely for the purposes of
Sections 4.01(a) and (b) and Xxxxxxx 0.00, Xxxxxxx xxx, x Xxxxxx Xxxxxxx
public limited company incorporated in England and Wales with
registered number 06497379 and whose registered office is at 00 Xxxxxxxx
Xxxxxx, Xxxxxx X0X 0XX. Each of CS and DPS is sometimes referred to herein as a “Party”
and together, as the “Parties”.
WHEREAS, CS, directly and through its various Subsidiaries, is engaged in the Cadbury plc
Business and the Beverages Business;
WHEREAS, the board of directors of CS has determined that it is in the best interests of CS
and its shareholders to separate CS into two separate, publicly traded companies, which shall
operate the Cadbury plc Business and the Beverages Business, respectively;
WHEREAS, for U.S. federal income tax purposes, the separation and certain related transactions
are intended to qualify as a tax-free transaction under Sections 355 and 368 of the Internal
Revenue Code of 1986, as amended;
WHEREAS, in order to effect such separation, the board of directors of CS has determined,
among other things, that it is in the best interests of CS and its shareholders to enter into
transactions pursuant to which (i) CS will become a wholly-owned subsidiary of Cadbury plc; (ii) CS
and/or one or more members of the Cadbury plc Group will, collectively, retain or acquire
beneficial ownership of all of the Cadbury plc Assets and Assume all of the Cadbury plc Liabilities
and DPS and/or one or more members of the DPS Group will, collectively, retain or acquire
beneficial ownership of all of the Beverages Assets and Assume all of the Beverages Liabilities;
and (iii) DPS will distribute to the holders of Cadbury plc Beverages Shares on a pro rata basis
(in each case without consideration being paid by such shareholders) all of the outstanding shares
of common stock, par value $0.01 per share, of DPS (the “DPS Common Stock”) (such
transactions as they may be amended or modified from time to time, collectively, the “Plan of
Separation”); and
WHEREAS, CS and DPS have determined that it is necessary and desirable to set forth the
agreements that will effect the Plan of Separation and to set forth certain other agreements that
will govern certain other matters following the Demerger Effective Time;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, CS and DPS hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Certain Defined Terms. For purposes of this Agreement:
“Action” shall mean any demand, action, claim, suit, countersuit, arbitration,
inquiry, subpoena, proceeding or investigation by or before any Governmental Entity or any
arbitration or mediation tribunal.
“Affiliate” shall mean, with respect to any specified Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under
common control with, such specified Person. For the purposes of this definition, “control”, when
used with respect to any specified Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or other interests, by Contract or otherwise.
“Ancillary Agreements” shall mean the Transfer Documents, the Transition Services
Agreement, the Tax Sharing Agreement, the Employee Matters Agreement, the Domain Names Agreement
and the Know-How Agreement.
“AsiaPac Territory” shall mean the countries as set forth in Schedule 1.01(a).
“Assets” shall mean all assets, properties, claims and rights (including goodwill),
wherever located (including in the possession of vendors or other third parties or elsewhere), of
every kind, character and description, whether real, personal or mixed, tangible, intangible or
contingent, in each case, whether or not recorded or reflected or required to be recorded or
reflected on the Records or financial statements of any Person, including the following:
(i) all accounting and other legal and business books, records, ledgers and files,
whether printed, electronic or written;
(ii) all apparatuses, computers and other electronic data processing and communications
equipment, fixtures, machinery, equipment, furniture, office equipment, automobiles, trucks,
aircraft and other transportation equipment, special and general tools, test devices,
prototypes and models and other tangible personal property;
(iii) all inventories of products, goods, materials, parts, raw materials, packaging,
ingredients and supplies, in each case, whether finished or in process;
(iv) all interests in real property of whatever nature, including easements, whether as
owner, mortgagee or holder of a Security Interest in real property, lessor, sublessor,
lessee, sublessee or otherwise;
(v) (A) all interests in any capital stock or other equity interests of any Subsidiary
or any other Person, (B) all bonds, notes, debentures or other securities issued by any
Subsidiary or any other Person, and (C) all loans, advances or other extensions of credit or
capital contributions to any Subsidiary or any other Person;
(vi) all Contracts, including license Contracts, leases of personal property, open
purchase orders for raw materials, packaging, ingredients, supplies, parts or services,
unfilled orders for the manufacture and sale of products and other Contracts or commitments;
(vii) all deposits, letters of credit and performance and surety bonds;
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(viii) all written (including in electronic form) technical information, data,
specifications, research and development information, engineering drawings and
specifications, operating and maintenance manuals, and materials and analyses prepared by
consultants and other third parties;
(ix) all Intellectual Property;
(x) all Software;
(xi) all cost information, sales and pricing data, customer prospect lists, supplier
records, customer and supplier lists, customer and vendor data, correspondence and lists,
product data and literature, artwork, design, development and business process files and
data, vendor and customer drawings, specifications, quality records and reports and other
books, records, studies, surveys, reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other accounts and notes receivables;
(xiii) all claims, rights or benefits against any Person or pursuant to any Action,
choses in action or similar rights, whether accrued or contingent;
(xiv) all rights under insurance policies and all rights in the nature of insurance,
indemnification or contribution;
(xv) all licenses, permits, approvals and authorizations which have been issued by any
Governmental Entity;
(xvi) all cash or cash equivalents, bank accounts, lock boxes and other deposit
arrangements; and
(xvii) all interest rate, currency, commodity or other swap, collar, cap or other
hedging or similar Contracts or arrangements.
“Beverages Assets” shall mean:
(i) the ownership interests in those Business Entities that are included in the
definition of the DPS Group and all of the Assets owned or held by
such Business Entities (other than any Assets that constitute Cadbury
plc Assets);
(ii) all Beverages Contracts and any rights or claims arising thereunder;
(iii) any rights or claims or contingent rights or claims primarily relating to or
arising from the Beverages Business;
(iv) any and all Assets reflected on the Beverages Balance Sheet or the accounting
records supporting such balance sheet and any Assets acquired by or for DPS or any member of
the DPS Group subsequent to the date of such balance sheet which,
had they been so acquired on or before such date and owned as of such date, would have
been reflected on such balance sheet if prepared on a consistent basis, subject to any
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dispositions of any of such Assets subsequent to the date of such balance sheet;
(v) subject to ARTICLE IX, any rights of any member of the DPS Group under
any Policies, including any rights thereunder arising after the Distribution Date in respect
of any Policies that are occurrence policies;
(vi) all Beverages Claims and, to the extent relating to the Beverages Business,
Joint Cadbury plc and Beverages Claims; and
(vii) the Assets set forth in Schedule 1.01(b) and any and all Assets that are
expressly contemplated by this Agreement or any Ancillary Agreement as Assets which have
been or are to be Transferred to DPS or any other member of the DPS Group.
Notwithstanding the foregoing, the Beverages Assets shall not include any Assets that are
expressly contemplated by this Agreement or any Ancillary Agreement (or the Schedules hereto or
thereto) as Assets to be retained by or Transferred to any member of the Cadbury plc Group.
“Beverages Balance Sheet” shall mean the combined balance sheet of the DPS Group,
including the notes thereto, as of December 31, 2007, prepared to give effect to the Transactions
contemplated hereby, as set forth in Schedule 1.01(c); provided that to the extent
any Assets or Liabilities are Transferred by CS or any member of the Cadbury plc Group to DPS or
any member of the DPS Group or vice versa in connection with the Plan of Separation and on or prior
to the Distribution Date, such Assets and/or Liabilities shall be deemed to be included or excluded
from the Beverages Balance Sheet, as the case may be.
“Beverages Business” shall mean the business of (i) manufacturing, distributing,
selling, marketing and promoting carbonated and non-carbonated beverages and other food products
throughout the Territory bearing brands owned by or licensed to a member of the DPS Group and (ii)
licensing brands owned by or licensed to a member of the DPS Group, including for use with
confectionery and other products, to the extent permitted, in the Territory.
“Beverages Contracts” shall mean the following Contracts to which any member of the
Cadbury plc Group or any member of the DPS Group is a party or by which any member of the Cadbury
plc Group or any member of the DPS Group or any of their respective Assets is bound, whether or not
in writing:
(i) any Contract that relates primarily to the Beverages Business;
(ii) any Contract or part thereof that is otherwise expressly contemplated pursuant to
this Agreement (including pursuant to Section 2.01(c)) or any of the Ancillary
Agreements to be assigned to any member of the DPS Group; and
(iii) any Beverages IP Agreement.
“Beverages Indemnitees” shall mean each member of the DPS Group and each of
their directors, officers, employees and agents and each of the heirs, executors, successors
and assigns of any of the foregoing, other than the Cadbury plc Indemnitees.
4
“Beverages Intellectual Property” shall mean the Beverages Owned Intellectual Property
and the Beverages Licensed Intellectual Property.
“Beverages IP Agreements” shall mean all licenses of Intellectual Property (i) from
any member of the DPS Group to any other Person and (ii) to any member of the DPS Group from any
other Person.
“Beverages Liabilities” shall mean:
(i) any Liabilities that are expressly contemplated by this Agreement or any Ancillary
Agreement (or the Schedules hereto or thereto, including Schedule 1.01(d) hereto) as
Liabilities to be Assumed by any member of the DPS Group, and all obligations and
Liabilities expressly Assumed by any member of the DPS Group under this Agreement or any of
the Ancillary Agreements;
(ii) any Liabilities to the extent relating to, arising out of or resulting from:
(A) the operation or conduct of the Beverages Business prior to, on or after
the Demerger Effective Time (including any such Liability to the extent relating to,
arising out of or resulting from any act or failure to act by any director, officer,
employee, agent or representative (whether or not such act or failure to act is or
was within such Person’s authority) with respect to the Beverages Business);
(B) the operation or conduct of any business conducted by any member of the DPS
Group at any time after the Demerger Effective Time (including any such Liability to
the extent relating to, arising out of or resulting from any act or failure to act
by any director, officer, employee, agent or representative (whether or not such act
or failure to act is or was within such Person’s authority) with respect to the
Beverages Business);
(C) any Beverages Assets, whether arising before, on or after the Demerger
Effective Time;
(D) any terminated or divested Business Entity, business or operation formerly
and primarily owned or managed by or associated with DPS or any Beverages Business;
(E) any indebtedness (including debt securities and asset-backed debt) of any
member of the DPS Group or indebtedness (regardless of the issuer of such
indebtedness) exclusively relating to the Beverages Business or any indebtedness
(regardless of the issuer of such indebtedness) secured exclusively by any of the
Beverages Assets (including any Liabilities relating to, arising out of or resulting
from a claim by a holder of any such indebtedness, in its capacity as such); and
(F) any Beverages Litigation Matter, Future Beverages Litigation
Matter and, to the extent relating to the Beverages Business, any Future Joint
Litigation Matter; and
5
(iii) all Liabilities reflected as liabilities or obligations on the Beverages Balance
Sheet or the accounting records supporting such balance sheet, and all Liabilities arising
or Assumed after the date of such balance sheet which, had they arisen or been Assumed on or
before such date and been retained as of such date, would have been reflected on such
balance sheet or such records if prepared on a consistent basis, subject to any discharge of
such Liabilities subsequent to the date of the Beverages Balance Sheet.
Notwithstanding anything to the contrary herein, the Beverages Liabilities shall not include
any Cadbury plc Liabilities.
“Beverages Licensed Intellectual Property” shall mean all Intellectual Property that a
member of the DPS Group is licensed to use pursuant to the Beverages IP Agreements.
“Beverages Litigation Matters” means the Actions set forth in Schedule 1.01(e)
hereto and any other Actions related to the Beverages Assets or Beverages Liabilities commenced on
or before the Distribution Date.
“Beverages Owned Intellectual Property” shall mean all Intellectual Property owned by
a member of the DPS Group.
“Beverages Policies” shall mean the Policies, current or past, that are owned or
maintained by or on behalf of any member of the Cadbury plc Group or any member of the DPS Group,
which relate exclusively to the Beverages Business and are either maintained by DPS or a member of
the DPS Group or assignable to DPS or a member of the DPS Group, as set forth in Schedule
1.01(f).
“Beverages Shared Policies” shall mean the Policies, current or past, that are owned
or maintained by or on behalf of any member of the Cadbury plc Group or any member of the DPS Group
which relate to the Beverages Business, other than Beverages Policies, as set forth in Schedule
1.01(g).
“Beverages Shared Policy Insured Claims” shall mean those Liabilities that, individually or in
the aggregate, are covered within the terms and conditions of any of the Beverages Shared Policies, whether
or not subject to deductibles, co-insurance, uncollectibility or retrospectively-rated premium
adjustments.
“Business Day” shall mean any day that is not a Saturday, a Sunday or any other day on
which banks are required or authorized by Law to be closed in The City of New York, United States
or London, England.
“Business Entity” shall mean any Person (other than a natural person) which may
legally hold title to Assets.
“Cadbury plc Assets” shall mean:
(i) the ownership interests in those Business Entities that are included in the
definition of the Cadbury plc Group and all of the Assets owned or held by such Business Entities (other than any Assets that constitute Beverages Assets);
(ii) all Cadbury plc Contracts and any rights or claims arising thereunder;
(iii) any rights or claims or contingent rights or claims primarily relating to or
arising from the Cadbury plc Business;
6
(iv) any and all Assets reflected on the Cadbury plc Balance Sheet or the accounting
records supporting such balance sheet and any Assets acquired by or for CS or any
member of the Cadbury plc Group subsequent to the date of such balance sheet which, had they
been so acquired on or before such date and owned as of such date, would have been reflected
on such balance sheet if prepared on a consistent basis, subject to any dispositions of any
of such Assets subsequent to the date of such balance sheet;
(v) subject to ARTICLE IX, any rights of any member of the Cadbury plc Group
under any Policies, including any rights thereunder arising after the Distribution Date in
respect of any Policies that are occurrence policies;
(vi) all Cadbury plc Claims and, to the extent relating to the Cadbury plc Business,
Joint Cadbury plc and Beverages Claims; and
(vii) the Assets set forth in Schedule 1.01(h) and any and all Assets that are
expressly contemplated by this Agreement or any Ancillary Agreement as Assets which have
been or are to be Transferred to CS or any other member of the Cadbury plc Group.
Notwithstanding the foregoing, the Cadbury plc Assets shall not include any Assets that are
expressly contemplated by this Agreement or any Ancillary Agreement (or the Schedules hereto or
thereto) as Assets to be retained by or Transferred to any member of the DPS Group.
“Cadbury plc Balance Sheet” shall mean the unaudited pro forma statement of net assets
of the Cadbury plc Group, as of December 31, 2007, prepared to give effect to the transactions
contemplated hereby, including the notes thereto, as set forth in Schedule 1.01(i);
provided that to the extent any Assets or Liabilities are Transferred by DPS or any member
of the DPS Group to CS or any member of the Cadbury plc Group or vice versa in connection with the
Plan of Separation and on or prior to the Distribution Date, such assets and/or liabilities shall
be deemed to be included or excluded from the Cadbury plc Balance Sheet, as the case may be.
“Cadbury plc Beverages Shares” shall mean the issued and outstanding shares of 500 xxxxx each of Cadbury plc.
“Cadbury plc Business” shall mean the business of manufacturing, distributing,
selling, marketing and promoting (i) confectionery and other food products throughout the world and
(ii) carbonated and non-carbonated beverages outside of the Territory.
“Cadbury plc Contracts” shall mean the following Contracts to which CS or any of its
Affiliates is a party as of the date hereof or by which it or any of its Affiliates as of the date
hereof or any of their respective Assets is bound, whether or not in writing:
(i) any Contract that relates primarily to the Cadbury plc Business; and
(ii) any Contract or part thereof that is otherwise expressly contemplated pursuant to
this Agreement (including pursuant to Section 2.01(c)) or any of the Ancillary
Agreements to be assigned to any member of the Cadbury plc Group.
7
“Cadbury plc Group” shall mean Cadbury plc and each Business Entity that is a
Subsidiary of Cadbury plc immediately after the Demerger Effective Time, and each Business Entity
that becomes a Subsidiary of Cadbury plc after the Demerger Effective Time, which shall include
those entities identified as such in Schedule 1.01(j).
“Cadbury plc Indemnitees” shall mean each member of the Cadbury plc Group and each of
their respective directors, officers, employees and agents and each of the heirs, executors,
successors and assigns of any of the foregoing, other than the Beverages Indemnitees.
“Cadbury plc Liabilities” shall mean:
(i) any and all Liabilities that are expressly contemplated by this Agreement or any
Ancillary Agreement (or the Schedules hereto or thereto, including Schedule 1.01(k)
hereto) as Liabilities to be Assumed by any member of the Cadbury plc Group, and all
obligations and Liabilities expressly Assumed by any member of the Cadbury plc Group under
this Agreement or any of the Ancillary Agreements;
(ii) any and all Liabilities to the extent relating to, arising out of or resulting
from:
(A) the operation or conduct of the Cadbury plc Business prior to, on or after
the Demerger Effective Time (including any such Liability to the extent relating to,
arising out of or resulting from any act or failure to act by any director, officer,
employee, agent or representative (whether or not such act or failure to act is or
was within such Person’s authority) with respect to the Cadbury plc Business);
(B) the operation or conduct of any business conducted by any member of the
Cadbury plc Group at any time after the Demerger Effective Time (including any such
Liability to the extent relating to, arising out of or resulting from any act or
failure to act by any director, officer, employee, agent or representative (whether
or not such act or failure to act is or was within such Person’s authority) with
respect to the Cadbury plc Business);
(C) any Cadbury plc Assets, whether arising before, on or after the Demerger
Effective Time;
(D) any terminated or divested Business Entity, business or operation formerly
and primarily owned or managed by or associated with CS or any Cadbury plc Business;
(E) any indebtedness (including debt securities and asset-backed debt) of any
member of the Cadbury plc Group or indebtedness (regardless of the issuer of such
indebtedness) exclusively relating to the Cadbury plc Business or any
indebtedness (regardless of the issuer of such indebtedness) secured
exclusively by any of the Cadbury plc Assets (including any Liabilities relating to,
arising out of or resulting from a claim by a holder of any such indebtedness, in
its capacity as such); and
8
(F) any Cadbury plc Litigation Matter, any Future Cadbury plc Litigation Matter
and, to the extent relating to the Cadbury plc Business, any Future Joint Litigation
Matter; and
(iii) all Liabilities reflected as liabilities or obligations on the Cadbury plc
Balance Sheet or the accounting records supporting such balance sheet, and all Liabilities
arising or Assumed after the date of such balance sheet which, had they arisen or been
Assumed on or before such date and been retained as of such date, would have been reflected
on such balance sheet or such records if prepared on a consistent basis, subject to any
discharge of such Liabilities subsequent to the date of the Cadbury plc Balance Sheet.
Notwithstanding anything to the contrary herein, the Cadbury plc Liabilities shall not include
any Beverages Liabilities.
“Cadbury plc Litigation Matters” means the Actions set forth in Schedule
1.01(l) hereto and any other Actions related to the Cadbury plc Assets or Cadbury plc
Liabilities commenced on or before the Distribution Date.
“Cadbury plc Ordinary Shares” shall mean the issued and outstanding ordinary shares of
500 xxxxx each of Cadbury plc.
“Circular” shall mean the circular sent to holders of CS Ordinary Shares containing
details of the Plan of Separation.
“Claims Administration” shall mean the processing of claims made under the Beverages Shared
Policies, including the reporting of claims to the insurance carriers, management and defense of
claims and providing for appropriate releases upon settlement of claims.
“Confidential Information” shall mean confidential or proprietary Information
concerning a Party and/or its Subsidiaries which, prior to or following the Demerger Effective
Time, has been disclosed by a Party or its Subsidiaries to another Party or its Subsidiaries, in
written, oral (including by recording), electronic, or visual form to, or otherwise has come into
the possession of, the other Party or its Subsidiaries, including pursuant to the provisions of
Section 8.01, 8.02 or 8.03 or any other provision of this Agreement (except
to the extent that such Information can be shown to have been (i) in the public domain through no
fault of such Party or its Subsidiaries or (ii) lawfully acquired from other sources by such Party
or its Subsidiaries to which it was furnished; provided, however, in the case of
clause (ii) that, to the furnished Party’s knowledge, such sources did not provide such Information
in breach of any confidentiality obligations).
“Consents” shall mean any consents, waivers or approvals from, or notification
requirements to, any Person other than a Governmental Entity, in each case, in connection with
the Plan of Separation.
“Continuing Arrangements” shall mean those arrangements set forth in Schedule
1.01(m) and such other commercial arrangements among the Parties that are intended to survive
and continue following the Demerger Effective Time.
9
“Contract” shall mean any agreement, contract, obligation, indenture, instrument,
lease, arrangement, commitment or undertaking (whether written or oral and whether express or
implied).
“CS ADRs” shall mean the American Depositary Receipts evidencing the American
depository shares representing CS Ordinary Shares.
“CS Ordinary Shares” shall mean the issued and outstanding ordinary shares of 12.5
xxxxx each of CS.
“Demerger Effective Time” shall mean the time at which the Plan of Separation becomes
effective, expected to be at or around 2:30 p.m. British Summer Time on May 7, 2008 or such other time as
the Court Order is registered.
“Disclosure Documents” shall mean any registration statement or other document
(including the Form 10 and the Prospectus) filed with the SEC or the FSA by or on behalf of any
Party or any of its controlled Affiliates in connection with the Plan of Separation, and also
includes any information statement, prospectus, offering memorandum, offering circular (including
the Circular and any franchise offering circular or any similar disclosure statement), or similar
disclosure document, whether or not filed with the SEC or the FSA or any other Governmental Entity
related to the Plan of Separation, which offers for sale or registers the Transfer or distribution
of any security of such Party or any of its controlled Affiliates.
“Distribution” shall mean the distribution by DPS on the Distribution Date to holders
of record of shares of Cadbury plc Beverages Shares as of the Distribution Record Date of the
issued and outstanding DPS Common Stock on the basis of 12 shares of DPS Common Stock for every
36 outstanding Cadbury plc Beverages Shares.
“Distribution Date” shall mean the date which DPS distributes all of the issued and
outstanding shares of DPS Common Stock to the holders of Cadbury plc Beverages Shares.
“Distribution Record Date” shall mean 6:00 p.m. Greenwich Mean Time or British Summer
Time, as applicable to the time of year, on the Business Day immediately preceding the date on
which the Court Order is registered by the UK Registrar of Companies at Companies House.
“DPS Group” shall mean DPS and each Business Entity that is a Subsidiary of DPS
immediately after the Demerger Effective Time, and each Business Entity that becomes a Subsidiary
of DPS after the Demerger Effective Time, which shall include those entities identified as such in
Schedule 1.01(n).
“DPS Transaction Costs” shall mean the categories of out-of-pocket transaction costs and expenses incurred by CS, DPS or any member of their respective Groups in connection
with the Plan of Separation set forth in Schedule 1.01(o).
“Employee
Matters Agreement” shall mean the Employee Matters Agreement
among CS and DPS and, solely for certain limited sections therein,
Cadbury plc, substantially in the form of attached hereto as Exhibit 1.01(a).
10
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, all as the same shall be in effect at the time that
reference is made thereto.
“Form 10” shall mean the registration statement on Form 10 filed by DPS with the SEC
in connection with the Distribution, and all amendments and supplements thereto.
“FSA” shall mean the UK Financial Services Authority.
“Governmental Approvals” shall mean any notice or report to be submitted to, or other
filing to be made with, or any consent, registration, approval, permit or authorization to be
obtained from, any Governmental Entity, in each case in connection with the Plan of Separation.
“Governmental Entity” shall mean any nation or government, any state, municipality or
other political subdivision thereof and any entity, body, agency, department, board, bureau or
court, whether domestic, foreign or multinational, exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any executive official
thereof.
“Group” shall mean the Cadbury plc Group or the DPS Group, as the context may require.
“Indemnifiable Loss” shall mean any and all damages, losses, Liabilities, penalties,
judgments, settlements, claims, payments, fines, interest, costs and expenses (including the costs
and expenses of any and all Actions and demands, assessments, judgments, settlements and
compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’,
consultants’ and other professionals’ fees and expenses incurred in the investigation or defense
thereof or the enforcement of rights hereunder), excluding special, consequential, indirect,
punitive damages (other than special, consequential, indirect and/or punitive damages awarded to
any third party against an indemnified party) and excluding Taxes. In addition, an
“Indemnifiable Loss” shall not include any non-cash costs or charges, except to the extent
such non-cash costs or charges result in a cash payment by the applicable Indemnitee.
“Information” shall mean all information, whether or not patentable or copyrightable,
in written, oral, electronic, visual or other tangible or intangible form, stored in any medium,
including studies, reports, Records, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts, data, computer data, disks, diskettes, tapes, computer programs or other Software,
marketing plans, customer names, communications by or to attorneys (including attorney-client
privileged communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), communications and materials otherwise related to or
made or prepared in connection with or in preparation for any legal proceeding, and other technical, financial, employee or business
information or data.
“Information Statement” shall mean the Information Statement attached as an exhibit to
the Form 10 sent to the holders of CS Ordinary Shares in connection with the Distribution,
including any amendment or supplement thereto.
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“Insurance Administration” shall mean, with respect to each Beverages Shared Policy, the
accounting for premiums, retrospectively-rated premiums, defense costs, indemnity payments,
deductibles and retentions, as appropriate, under the terms and conditions of each of the Beverages Shared
Policies; and the reporting to excess insurance carriers of any losses or claims which may cause
the per-occurrence, per claim or aggregate limits of any Beverages Shared Policy to be exceeded, and the
distribution of Insurance Proceeds as contemplated by this Agreement.
“Insurance Proceeds” shall mean those monies (i) received by an insured from an
insurance carrier or (ii) paid by an insurance carrier on behalf of an insured, in either case net
of any applicable premium adjustment, retrospectively-rated premium, deductible, retention, or cost
of reserve paid or held by or for the benefit of such insured.
“Intellectual Property” shall mean (i) patents and patent applications; (ii)
Trademarks; (iii) copyrights and design rights, including registrations and applications for
registration thereof; (iv) database rights; and (v) confidential and proprietary information,
including trade secrets and know-how.
“Intercompany Balances” shall mean the intercompany accounts receivable, accounts
payable, loans and corporate cross-charges (other than current intercompany accounts receivables
and accounts payable arising out of the ordinary course of business or any balances outstanding
under any Continuing Arrangement), including the interest accrued thereon as of the date hereof,
between any member of the DPS Group, on the one hand, and any member of the Cadbury plc Group, on
the other hand, set forth in Schedule 1.01(p).
“Law” shall mean any applicable U.S., English or other federal, national,
supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code,
order, requirement or rule of law (including common law).
“Liabilities” shall mean any and all debts, liabilities, costs, expenses and
obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, reserved or
unreserved, or determined or determinable, including those arising under any Law, Action, whether
asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or
award entered by or with any Governmental Entity and those arising under any Contract or any fines,
damages or equitable relief which may be imposed and including all costs and expenses related
thereto.
“Listing Rules” shall mean the Listing Rules of the UKLA.
“London Stock Exchange” shall mean the London Stock Exchange plc.
“NYSE” shall mean the New York Stock Exchange.
“Person” shall mean any natural person, firm, individual, corporation, business trust,
joint venture, association, company, limited liability company, partnership or other organization
or entity, whether incorporated or unincorporated, or any Governmental Entity.
“Policies” shall mean insurance policies and insurance Contracts of any kind (other
than life and benefits policies or Contracts), including primary, excess and umbrella
12
policies,
comprehensive general liability policies, director and officer liability, fiduciary liability,
automobile, aircraft, property and casualty, workers’ compensation and employee dishonesty
insurance policies, bonds and self-insurance and captive insurance company arrangements, together
with the rights, benefits and privileges thereunder.
“Prospectus” shall mean the prospectus issued by Cadbury plc in relation to the
admission by the UKLA of the Cadbury plc Ordinary Shares and the admission of the Cadbury plc
Ordinary Shares to trading on the main market for listed securities of the London Stock Exchange,
prepared, published and approved by, and filed with, the FSA in accordance with the Prospectus
Rules.
“Prospectus Rules” shall mean the Prospectus Rules of the FSA made under section 73A
of the Financial Services and Markets Xxx 0000, as amended.
“Records” shall mean any Contracts, documents, books, records or files.
“Scheme” shall mean the scheme of arrangement under Section 425 of the Companies Xxx
0000 between CS and the CS shareholders, with or subject to any modification, addition or condition
approved or imposed by the Court pursuant to which the CS Ordinary Shares will be cancelled, CS
will become a wholly-owned subsidiary of Cadbury plc and each holder of CS Ordinary Shares will be
entitled to receive 00 Xxxxxxx xxx Xxxxxxxx Shares and 36 Cadbury plc Beverages Shares for
every 100 CS Ordinary Shares that such holder holds as of the Scheme Record Date.
“Scheme Record Date” shall mean 6:00 p.m. Greenwich Mean Time or British Summer Time,
as applicable to the time of year, on the date of the Court hearing to confirm the reduction of
capital of CS provided under the Scheme.
“SEC” shall mean the United States Securities and Exchange Commission or any successor
agency.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect at the time that reference is
made thereto.
“Security Interest” shall mean any mortgage, security interest, pledge, lien, charge,
claim, option, right to acquire, voting or other restriction, right-of-way, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever, excluding (i) restrictions
on transfer under securities Laws and (ii) licenses of Intellectual Property.
13
“Software” shall mean all computer programs, applications and code (including source
code and object code), and all media and documentation (including user manuals and training
materials) relating to or embodying any of the foregoing or on which any of the foregoing are
recorded.
“Subsidiary” shall mean, with respect to any Person, (i) a corporation, 50% or more of
the voting or capital stock of which is, as of the time in question, directly or indirectly owned
by such Person and (ii) any other partnership, joint venture, association, joint stock company,
trust, unincorporated organization or other entity in which such Person, directly or indirectly,
owns 50% or more of the equity economic interest thereof or has the power to elect or direct the
election of 50% or more of the members of the governing body of such entity or otherwise has
control over such entity (e.g., as the managing partner of a partnership).
“Tax” shall have the meaning set forth in the Tax Sharing Agreement.
“Tax Return” shall have the meaning set forth in the Tax Sharing Agreement.
“Tax
Sharing Agreement” shall mean the Tax Sharing and
Indemnification Agreement among CS and DPS and, solely for certain
limited sections therein, Cadbury plc, substantially in the form attached hereto as Exhibit 1.01(b).
“Territory” shall mean the countries listed across from the brands owned by or
licensed to a member of the DPS Group as of the Distribution Date or otherwise Transferred to a
member of the DPS Group after the Distribution Date pursuant to Section 2.04, as set forth
in Schedule 1.01(q). For the avoidance of doubt, the
Territory is specific as to each brand identified in Schedule 1.01(q).
“Trademarks” means trademarks, service marks, trade names, trade dress and Internet
domain names, and registrations and applications for registration thereof, together with the
goodwill associated therewith.
“Transaction Costs” shall mean all out-of-pocket costs and expenses incurred by CS,
DPS or any member of their respective Groups in connection with the Plan of Separation other than
the DPS Transaction Costs.
“Transfer Agent” shall mean Computershare Trust Company, N.A.
“Transfer Documents” shall mean, collectively, the various Contracts and other
documents heretofore entered into and to be entered into to effect the Transfer of Assets and the Assumption of Liabilities in the manner contemplated by this Agreement and the Plan of
Separation, or otherwise relating to, arising out of or resulting from the transactions
contemplated by this Agreement, which shall be, as applicable, in such form or forms as the
applicable Parties thereto agree.
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“Transition Services Agreement” shall mean the Transition Services Agreement between
CS and DPS, substantially in the form attached hereto as Exhibit 1.01(c).
“UK” shall mean the United Kingdom of Great Britain and Northern Ireland.
“UKLA” shall mean the FSA acting in its capacity as the competent authority for the
purposes of Part VI of the Financial Services and Markets Xxx 0000, as amended.
The following terms have the meanings set forth in the Sections set forth below:
Definition | Location | |||
“Agreement” |
Preamble | |||
“Agreement Disputes” |
10.01 | |||
“American Samoa Business” |
6.02 | (d) | ||
“AsiaPac Licensed Intellectual Property |
6.04 | (c) | ||
“Assume” or “Assumed” |
2.02 | |||
“Audited Party” |
5.02 | (d) | ||
“Beverages Claims” |
8.10 | (c) | ||
“Beverages Names and Marks” |
6.02 | (a) | ||
“Cadbury Names and Marks” |
6.01 | (a) | ||
“Cadbury plc Claims” |
8.10 | (c) | ||
“Corporate Name” |
6.01 | (b) | ||
“Court” |
4.01 | (a) | ||
“Court Order” |
4.01 | (b) | ||
“CS” |
Recitals | |||
“Domain Names Agreement” |
6.06 | |||
“DPS” |
Preamble | |||
“DPS Common Stock” |
Recitals | |||
“DPS Licensed Intellectual Property |
6.04 | (b) | ||
“Escalation Notice” |
10.02 | (a) | ||
“Existing Stock” |
6.01 | (c) | ||
“Future Beverages Litigation Matter” |
8.10(b)(ii) | |||
“Future Cadbury plc Litigation Matter” |
8.10 | (b)(i) | ||
“Future Joint Litigation Matters” |
8.10(b)(iii) | |||
“Improvements” |
6.04 | (b) | ||
“Indemnifying Party” |
7.04 | (b) | ||
“Indemnitee” |
7.04 | (b) | ||
“Indemnity Payment” |
7.06 | (a) | ||
“Interim Financial Statements” |
5.02 | (c) | ||
“Internal Control Audit and Management Assessments” |
5.02 | (b) | ||
“Know-How Agreement” |
6.05 | (a) | ||
“Joint Cadbury plc and Beverages Claims” |
8.10 | (c) | ||
“Memorabilia” |
6.03 | |||
“Other Party’s Auditors” |
5.02 | (b) | ||
“Party” |
Preamble | |||
“Plan of Separation” |
Recitals |
15
Definition | Location | |||
“Reduction” |
4.01 | (a) | ||
“Shared Contract” |
2.01 | (c)(i) | ||
“Third Party Claim” |
7.04 | (b) | ||
“Third Party Proceeds” |
7.06 | (a) | ||
“Transfer” |
2.01 | (a)(i) |
Section 1.02 Interpretation and Rules of Construction. In this Agreement, except to the extent otherwise provided or that the context otherwise
requires:
(a) when a reference is made in this Agreement to an Article, Section, Exhibit or
Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this
Agreement unless otherwise indicated;
(b) the table of contents and headings for this Agreement are for reference purposes
only and do not affect in any way the meaning or interpretation of this Agreement;
(c) whenever the words “include,” “includes” or “including” are used in this Agreement,
they are deemed to be followed by the words “without limitation”;
(d) the words “hereof,” “herein” and “hereunder” and words of similar import, when used
in this Agreement, refer to this Agreement as a whole and not to any particular provision of
this Agreement;
(e) all terms defined in this Agreement have the defined meanings when used in any
Ancillary Agreement, or any certificate or other document made or delivered pursuant hereto,
unless otherwise defined therein;
(f) the definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms; and
(g) references to a Person are also to its successors and permitted assigns.
ARTICLE II
THE SEPARATION
Section 2.01 Transfer of Assets.
(a) On or prior to the Demerger Effective Time and to the extent not already completed:
(i) CS shall, on behalf of itself and the members of the Cadbury plc Group, as
applicable, transfer, contribute, assign and convey or cause to be transferred, contributed,
assigned and conveyed (“Transfer”) to DPS or another member of the DPS Group all of
its and its Subsidiaries’ right, title and interest, if any and to the extent of such right,
title and interest, in and to the Beverages Assets owned or held by a
member of the Cadbury
16
plc Group as of the Distribution Date, including taking the actions necessary to consummate
the transactions set forth in Schedule 2.01(a); and
(ii) DPS shall, on behalf of itself and the members of the DPS Group, as applicable,
Transfer to CS or another member of the Cadbury plc Group all of its and its Subsidiaries’
right, title and interest, if any and to the extent of such right, title and interest, in
and to the Cadbury plc Assets owned or held by a member of the DPS Group as of the
Distribution Date, including taking the actions necessary to consummate the transactions set
forth in Schedule 2.01(a).
(b) Unless otherwise agreed to by the Parties, each of CS and DPS shall be entitled to
designate the Business Entity within such Party’s respective Group to which any Assets are to be
Transferred pursuant to this Section 2.01 or Section 2.04.
(c) Without limiting the generality of the obligations set forth in Section 2.01(a)
and 2.01(b):
(i) Unless the Parties otherwise agree or the benefits of any Contract described in
this Section are expressly conveyed to the applicable Party pursuant to an Ancillary
Agreement, to the extent any Contract is (1) a Cadbury plc Asset but inures in part to the
benefit or burden of any member of the DPS Group or (2) a Beverages Asset but inures in part
to the benefit or burden of any member of the Cadbury plc Group, including those contracts
listed in Schedule 2.01(c) (each, a “Shared Contract”), such Shared Contract
shall be assigned in part to the applicable member(s) of the applicable Group, if so
assignable, or appropriately amended prior to, on or after the Demerger Effective Time, so
that each Party or the members of their respective Groups shall be entitled to the rights
and benefits, and shall Assume the related portion of any Liabilities, inuring to their
respective businesses; provided, however, that (x) in no event shall any
member of any Group be required to assign (or amend) any Shared Contract in its entirety or
to assign a portion of any Shared Contract (including any Policy) which is not assignable
(or cannot be amended) by its terms (including any terms imposing consents or conditions on
an assignment where such consents or conditions have not been obtained or fulfilled) and (y)
if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot
be amended or if such assignment or amendment would impair the benefit the Parties thereto
derive from such Shared Contract, the Parties shall, and shall cause each of their
respective Subsidiaries to, take such other reasonable and permissible actions to cause a
member of the DPS Group or the Cadbury plc Group, as the case may be, to receive the benefit
of that portion of each Shared Contract that relates to the Beverages Business or the
Cadbury plc Business (to the extent so related) as if such Shared Contract had been assigned
to (or amended to allow) a member of the applicable Group pursuant to this Section 2.01 and to bear the burden of the corresponding
Liabilities (including any Liabilities that may arise by reason of such arrangement) as if
such Liabilities had been Assumed by a member of the applicable Group pursuant to this
Section 2.01.
(ii)
Each of CS and DPS shall, and shall cause the respective members of its
Group to, (A) treat for all Tax purposes the portion of each Shared
17
Contract inuring to its
respective businesses as Assets owned by, and/or Liabilities of, as applicable, such Party
not later than the Demerger Effective Time and (B) neither report nor take any Tax position
(on a Tax Return or otherwise) inconsistent with such treatment (in the case of clauses (A)
and (B), unless required by Tax Law or any other Law or the good faith resolution of a
contest or other proceeding relating to Taxes).
(iii) Nothing in this Section 2.01(c) shall require any member of any Group to
make any payment (except to the extent advanced, Assumed or agreed in advance to be
reimbursed by any member of the other Group), incur any obligation or grant any concession
for the benefit of any member of any other Group in order to effect any transaction
contemplated by this Section 2.01(c), in each case, other than an incidental
payment, obligation or concession.
Section 2.02 Assumption and Satisfaction of Liabilities. Except as otherwise specifically set forth in any Ancillary Agreement, from and after the
Demerger Effective Time, (a) CS shall, or shall cause a member of the Cadbury plc Group to, accept,
assume (or, as applicable, retain), perform, discharge and fulfill, in accordance with their
respective terms (“Assume”), all of the Cadbury plc Liabilities and (b) DPS shall, or shall
cause a member of the DPS Group to, Assume all the Beverages Liabilities, in each case, regardless
of (i) when or where such Liabilities arose or arise, (ii) whether the facts upon which they are
based occurred prior to, on or subsequent to the Demerger Effective Time, (iii) where or against
whom such Liabilities are asserted or determined and (iv) whether arising from or alleged to arise
from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the
Cadbury plc Group or the DPS Group, as the case may be, or any of their past or present respective
directors, officers, employees, agents, Subsidiaries or Affiliates.
Section 2.03 Intercompany Balances.
(a) All of the Intercompany Balances set forth on Schedule 1.01(p) shall, prior to or
at the Demerger Effective Time, be repaid, settled or otherwise eliminated, by means of cash
payments, a dividend, capital contribution, a combination of the foregoing or otherwise, as
determined by CS.
(b) Except as may be contemplated by this Agreement or any Ancillary Agreement and the
transactions contemplated hereby and thereby, from [______], 2008 until the Distribution Date,
DPS shall, and shall cause each member of the DPS Group to, manage its working capital in the
ordinary course of business consistent with past practice.
(c) As between the Parties (and the members of their respective Groups), all payments and
reimbursements received after the Demerger Effective Time by any Party (or member of its Group)
that relate to a Business, Asset or Liability of the other Party (or member of its Group) shall be
held by such Party in trust for the use and benefit of the Party entitled thereto (at the expense
of the Party entitled thereto) and, promptly upon receipt by such Party of any such payment or
reimbursement, such Party shall pay or shall cause the applicable member
18
of its Group to pay over
to the applicable Party the amount of such payment or reimbursement without right of set-off, net
of any costs, including Tax costs, to the Party making the payment.
Section 2.04 Transfers Not Effected on or Prior to the Demerger Effective Time; Transfers
Deemed Effective as of the Demerger Effective Time.
(a) To the extent that any Transfers contemplated by this Agreement (other than any Transfer
contemplated by Section 2.01(c)) shall not have been consummated on or prior to the
Demerger Effective Time, the Parties shall cooperate to effect such Transfers as promptly as
practicable following the Demerger Effective Time. Nothing herein shall be deemed to require the
Transfer of any Assets or the Assumption of any Liabilities which by their terms or operation of
Law cannot be Transferred; provided, however, that the Parties and their respective
Subsidiaries shall cooperate and use commercially reasonable efforts
following the Distribution Date to seek to obtain any
necessary Consents or Governmental Approvals for the Transfer of all Assets and the Assumption of
all Liabilities contemplated to be Transferred and Assumed pursuant to this Agreement.
(b) In the event that any such Transfer of Assets or Assumption of Liabilities has not been
consummated, from and after the Demerger Effective Time (i) the Party whose Group retains such
Asset shall thereafter hold, or cause the applicable member of its Group to hold, such Asset (at no
net Tax cost to such Party or such member) for the use and benefit of the member of the other Group
entitled thereto (at the expense of the member entitled thereto) to the extent related to such
other Party’s business and (ii) the Party intended to Assume such Liability shall, or shall cause
the applicable member of its Group to, pay or reimburse the member of the other Group retaining
such Liability (at no net Tax cost to such retaining member) for all amounts paid or incurred in
connection with the retention of such Liability to the extent related to such other Party’s
business. In addition, the Party whose Group retains such Asset or Liability shall, insofar as
reasonably possible and to the extent permitted by applicable Law, treat such Asset or Liability in
the ordinary course of business in accordance with past practice and take such other actions as may
be reasonably requested by the Party to whose Group such Asset is to be Transferred or by the Party
whose Group will Assume such Liability in order to place such Party, insofar as reasonably
possible, in the same position as if such Asset or Liability had been Transferred or Assumed as
contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability,
including possession, use, risk of loss, potential for gain, and dominion, control and command over
such Asset or Liability, are to inure from and after the Demerger Effective Time to the member or
members of the Cadbury plc Group or the DPS Group entitled to the receipt of such Asset or required
to Assume such Liability. In furtherance of the foregoing, the Parties agree that, as of the
Demerger Effective Time, each Party shall be deemed to have acquired complete and sole beneficial
ownership over all of the Assets, together with all rights, powers and privileges incident thereto,
and shall be deemed to have Assumed in accordance with the terms of this Agreement all of the
Liabilities, and all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to
Assume pursuant to the terms of this Agreement.
(c) If and when the Consents, Governmental Approvals and/or conditions, the absence or
non-satisfaction of which caused the deferral of Transfer of any Asset or deferral of the
Assumption of any Liability pursuant to Section 2.04(a), are obtained or satisfied, the
19
Transfer, assignment, Assumption or novation of the applicable Asset or Liability shall be effected
in accordance with and subject to the terms of this Agreement and/or the applicable Ancillary
Agreement.
(d) The Person retaining any Asset or Liability due to the deferral of the Transfer of such
Asset or the deferral of the Assumption of such Liability pursuant to Section 2.04(a) or
otherwise shall not be obligated, in connection with the foregoing, to expend any money unless the
necessary funds are advanced, assumed, or agreed in advance to be reimbursed by the Person entitled
to such Asset or the Person intended to be subject to such Liability and at no net Tax cost to such
retaining Person, other than reasonable attorneys’ fees and recording or similar fees, all of which
shall be promptly reimbursed by the Person entitled to such Asset or the Person intended to be
subject to such Liability.
(e) Each of CS and DPS shall, and shall cause the members of its respective Group to, (i)
treat for all Tax purposes (A) the deferred Assets as Assets having been Transferred to and owned
by the Party entitled to such Assets not later than the Demerger Effective Time and (B) the
deferred Liabilities as Liabilities having been Assumed and owed by the Person intended to be
subject to such Liabilities not later than the Demerger Effective Time and (ii) neither report nor
take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (in the case
of clauses (i) and (ii), unless required by a Tax Law or any other Law or good faith resolution of
a contest or proceeding relating to Taxes).
(f) Nothing in this Section 2.04 shall be deemed to modify the terms of any Beverages
IP Agreement entered into between any member of the DPS Group, on the one hand, and any member of
the Cadbury plc Group on the other.
Section 2.05 Transfer Documents. In connection with, and in furtherance of, the Transfer of Assets and the acceptance and
Assumption of Liabilities contemplated by this Agreement, to the extent necessary, the Parties
shall execute or cause to be executed, on or prior to the Demerger Effective Time, the Transfer
Documents reasonably necessary to evidence the valid and effective Assumption by the applicable
Party or the members of its Group of the Cadbury plc Liabilities or Beverages Liabilities, as
applicable, and the valid Transfer to the applicable Party or member of such Party’s Group of all
right, title and interest in and to the Cadbury plc Assets or the Beverages Asset, as applicable,
to be Transferred hereunder.
Section 2.06 Further Assurances.
(a) In addition to and without limiting the actions specifically provided for elsewhere in
this Agreement, including Section 2.04, each of the Parties shall cooperate with each other
and use (and will cause their respective Subsidiaries and Affiliates to use) commercially
reasonable efforts, on and after the Demerger Effective Time, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary
on its part under applicable Law or contractual obligations to consummate and make effective the
transactions contemplated by this Agreement and the Ancillary Agreements.
(b) Without limiting the foregoing, on and after the Demerger Effective Time, each Party shall
cooperate with the other Parties, and without any further consideration, but at
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the expense of the
requesting Party from and after the Demerger Effective Time, to execute and deliver, or use
commercially reasonable efforts to cause to be executed and delivered, all instruments, including
instruments of Transfer, and to make all filings with, and to obtain all Consents and/or
Governmental Approvals, any permit, license, Contract, indenture or other instrument (including any
Consents or Governmental Approvals), and to take all such other actions as such Party may
reasonably be requested to take by the other Party from time to time, consistent with the terms of
this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of
this Agreement and the Ancillary Agreements and the Transfers of the applicable Assets and the
assignment and Assumption of the applicable Liabilities and the other transactions contemplated
hereby and thereby.
Section 2.07 Replacement of Guarantors and Obligors.
(a) DPS shall (with the reasonable cooperation of CS) use its commercially reasonable efforts
to have any member of the Cadbury plc Group removed as guarantor of or obligor for any Beverages
Liability, including in respect of those guarantees and obligations set forth in Schedule
2.07(a), to the extent that they relate to Beverages Liabilities.
(b) On or prior to the Demerger Effective Time, to the extent required to obtain a release
from a guaranty or obligation for any Beverages Liability of any member of the Cadbury plc Group, a
member of the DPS Group, as applicable, shall either (i) execute a guaranty agreement in the form
of the existing guaranty or such other form as is agreed to by the relevant Parties to such
guaranty agreement or (ii) execute an amendment to the agreement giving rise to such obligation in
such form as is necessary to obtain such release, except to the extent that such existing guaranty
or amendment contains representations, covenants or other terms or provisions either (1) with which
DPS would be reasonably unable to comply or (2) which would be reasonably expected to be breached.
(c) If DPS is unable to obtain, or to cause to be obtained, any such required removal as set
forth in clause (a) and (b) of this Section 2.07, (i) the relevant DPS Group beneficiary
and DPS shall, and shall cause the members of the DPS Group to, indemnify and hold harmless the
Cadbury plc Group guarantor or obligor for any Indemnifiable Loss arising from or relating thereto
(in accordance with the provisions of ARTICLE VII) and shall or shall cause one of its
Affiliates, as agent or subcontractor for such guarantor or obligor to pay, perform and discharge
fully all the obligations or other Liabilities of such guarantor or obligor thereunder.
(d) CS shall (with the reasonable cooperation of DPS) use its commercially reasonable efforts
to have any member of the DPS Group removed as guarantor of or obligor for any Cadbury plc
Liability, including in respect of the guarantees or obligations set forth in Schedule
2.07(d), to the extent that they relate to Cadbury plc Liabilities.
(e) On or prior to the Demerger Effective Time, to the extent required to obtain a release
from a guaranty or obligation for any Cadbury plc Liability of any member of the DPS Group, a
member of the Cadbury plc Group, as applicable, shall either (i) execute a guaranty agreement in
the form of the existing guaranty or such other form as is agreed to by the relevant Parties to
such guaranty agreement or (ii) execute an amendment to the agreement
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giving rise to such
obligation in such form as is necessary to obtain such release, except to the extent that such
guaranty or amendment contains representations, covenants or other terms or provisions either (1)
with which CS would be reasonably unable to comply or (2) which would be reasonably expected to be
breached.
(f) If CS is unable to obtain, or to cause to be obtained, any such required removal as set
forth in clause (d) and (e) of this Section 2.07, (i) the relevant Cadbury plc Group
beneficiary and CS shall, and shall cause the other members of the Cadbury plc Group to, indemnify
and hold harmless the DPS Group guarantor or obligor for any Indemnifiable Loss arising from or
relating thereto (in accordance with the provisions of ARTICLE VII) and shall or shall
cause one of its Affiliates, as agent or subcontractor for such guarantor or obligor to pay,
perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor
thereunder.
Section 2.08 Disclaimer of Representations and Warranties. EACH OF CS (ON BEHALF OF ITSELF AND EACH MEMBER OF THE CADBURY PLC GROUP) AND DPS (ON
BEHALF OF ITSELF AND EACH MEMBER OF THE DPS GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY
SET FORTH HEREIN, IN ANY ANCILLARY AGREEMENT OR IN ANY CONTINUING ARRANGEMENT, NO PARTY TO THIS
AGREEMENT, ANY ANCILLARY AGREEMENT, ANY CONTINUING ARRANGEMENT OR ANY OTHER AGREEMENT OR DOCUMENT
CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENTS, ANY CONTINUING ARRANGEMENTS OR OTHERWISE,
IS REPRESENTING OR WARRANTING IN ANY WAY AS TO THE ASSETS, BUSINESSES, INFORMATION OR LIABILITIES
CONTRIBUTED, TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR
GOVERNMENTAL APPROVALS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM
FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY, OR AS TO
THE ABSENCE OF ANY DEFENSES OR RIGHT OF SET-OFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY
ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY
OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY
TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF.
EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT OR CONTINUING
ARRANGEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE
CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE
RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE
TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST
AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE
NOT COMPLIED WITH.
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ARTICLE III
CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTION
Section 3.01 Certificate of Incorporation; Bylaws. On or prior to the Distribution Date, all necessary actions shall be taken to adopt the
form of Certificate of Incorporation and Bylaws filed by DPS with the SEC as exhibits to the Form
10.
Section 3.02 Directors. On or prior to the Distribution Date, CS shall take all necessary actions to cause the
board of directors of DPS to consist of the individuals identified in the Information Statement as
directors of DPS.
Section 3.03 Resignations. On or prior to the Distribution Date, (i) CS shall cause all its employees and any
employees of any member of the Cadbury plc Group (excluding any employees of any member of the DPS
Group) to resign, effective as of the Distribution Date, from all positions as officers or
directors of any member of the DPS Group in which they serve and (ii) DPS shall cause all its
employees and any employees of any member of the DPS Group to resign, effective as of the
Distribution Date, from all positions as officers or directors of any members of the Cadbury plc
Group.
Section 3.04 Ancillary Agreements. On or prior to the Distribution Date, each of CS and DPS shall enter into, and/or (where
applicable) shall cause a member or members of their respective Group to enter into, the Ancillary
Agreements and any other Contracts in respect of the Distribution reasonably necessary or
appropriate in connection with the transactions contemplated hereby and thereby.
ARTICLE IV
THE DISTRIBUTION
Section 4.01 The Distribution. Subject to Sections 4.04 and 4.05:
(a) Promptly following the sanction by the High Court of Justice of England and Wales (the
“Court”) of the Scheme, Cadbury plc shall apply to the Court to approve a reduction in
capital pursuant to Section 135 of the Companies Xxx 0000 (the “Reduction”) under which the
share capital of Cadbury plc shall be reduced by decreasing the nominal value of each Cadbury plc
Ordinary Share from 500 to 10 xxxxx and the Cadbury plc Beverages Shares will be cancelled in
their entirety.
(b) Promptly after receipt of the order (the “Court Order”) from the Court approving
the Reduction, Cadbury plc shall file the Court Order at Companies House.
(c) On the Distribution Date, DPS shall issue to each holder of a Cadbury plc Beverages Share
12 shares of DPS Common Stock for every 36 Cadbury plc Beverages
Shares held by such shareholder and the shares of DPS Common Stock
held by CS shall be
cancelled. No action by any such shareholder shall be necessary for such shareholder (or such
shareholder’s designated transferee or transferees) to receive the applicable number of shares of
(and, if applicable, cash in lieu of any fractional shares) DPS Common Stock such shareholder is
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entitled to in the Distribution. The Transfer Agent shall credit the appropriate class and number
of such shares of DPS Common Stock to book entry accounts for each such holder or designated
transferee or transferees of such holder of DPS Common Stock.
Section 4.02 Fractional Shares. Shareholders holding a number of shares of Cadbury plc Beverages Shares, on the
Distribution Record Date, which would entitle such shareholders to receive less than one whole share
of DPS Common Stock in the applicable Distribution will receive cash in lieu of fractional shares.
Fractional shares of DPS Common Stock will not be distributed in the Distribution nor credited to
book-entry accounts. The Transfer Agent shall, as soon as practicable after the applicable
Distribution Date, (a) determine the number of whole shares and fractional shares of DPS Common
Stock allocable to each holder of record or beneficial owner of Cadbury plc Beverages Shares as of
close of business on the Distribution Record Date, (b) aggregate all such fractional shares into
whole shares and sell the whole shares obtained thereby in open market transactions, in each case,
at then prevailing trading prices on behalf of holders who would otherwise be entitled to
fractional share interests and (c) distribute to each such holder, or for the benefit of each such
beneficial owner, such holder or owner’s ratable share of the net proceeds of such sale, based upon
the average gross selling price per share of DPS Common Stock after making appropriate deductions
for any amount required to be withheld for United States federal income tax purposes. DPS shall
bear the cost of brokerage fees incurred in connection with these sales of fractional shares, which
sales shall occur as soon after the applicable Distribution Date as practicable and as determined
by the Transfer Agent. Neither CS nor DPS or the Transfer Agent will guarantee any minimum sale
price for the fractional shares of DPS Common Stock. Neither CS nor DPS will pay any interest on
the proceeds from the sale of fractional shares. The Transfer Agent will have the sole discretion
to select the broker-dealers through which to sell the aggregated fractional shares and to
determine when, how and at what price to sell such shares. Neither the Transfer Agent nor the
broker-dealers through which the aggregated fractional shares are sold will be Affiliates of CS or
DPS.
Section 4.03 Actions in Connection with the Distribution.
(a) DPS shall file such amendments and supplements to the Form 10 as CS may reasonably request
and such amendments as may be necessary in order to cause the same to become and remain effective
as required by Law, including filing such amendments and supplements to the Form 10 as may be
required by the SEC or federal, state or foreign securities Laws. A member of the Cadbury plc
Group, on behalf of DPS, shall mail to the holders of CS Ordinary Shares and CS ADRs, at such time
on or prior to the applicable Distribution Date as CS shall determine, the Information Statement
included in the Form 10, as well as any other information concerning DPS, its business, operations
and management, the Plan of Separation and such other matters as CS shall reasonably determine are
necessary and as may be required by Law.
(b) DPS shall cooperate with CS in preparing, filing with the SEC and causing to become effective a registration statement or amendments thereof which are required to
reflect the establishment of, or amendments to, any employee benefit and other plans necessary or
appropriate in connection with the Plan of Separation or other transactions contemplated by this
Agreement and the Ancillary Agreements. Promptly after receiving a request from CS, to the
24
extent
requested, DPS shall prepare and, in accordance with applicable Law, file with the SEC any such
documentation that CS determines is necessary or desirable to effectuate the Distribution, and CS
and DPS shall each use commercially reasonable efforts to obtain all necessary approvals from the
SEC with respect thereto as soon as practicable.
(c) DPS shall prepare and file, and shall use commercially reasonable efforts to have approved
and made effective, an application for the original listing of the DPS Common Stock to be
distributed in the Distribution on the NYSE, subject to official notice of distribution.
Section 4.04 Distribution Date. CS shall, in its sole discretion, determine the Distribution Date and all terms of the
Distribution, including the form, structure and terms of any transactions and/or offerings to
effect the Distribution and the timing of and conditions to the consummation thereof. In addition,
regardless of whether the conditions to the consummation of the Distribution set forth in
Section 4.05 have been satisfied or waived, CS may, in accordance with Section
11.01, at any time and from time to time until the completion of the Distribution, decide to
modify or change the terms of the Distribution, including by accelerating or delaying the timing of
the consummation of all or part of the Distribution.
Section 4.05 Conditions to Distribution. Subject to Section 4.04, the consummation of the Distribution shall be subject to
the satisfaction or waiver of the following conditions which satisfaction or waiver shall be
determined by CS in its sole discretion and which conditions are for the sole benefit of the
Cadbury plc Group and shall not give rise to or create any duty on the part of CS or the board of
directors of CS to waive or not waive any such condition:
(a) The Form 10 shall have been declared effective by the SEC, with no stop order in effect
with respect thereto, and the Information Statement shall have been mailed to the holders of CS
Ordinary Shares;
(b) The DPS Common Stock to be delivered in the Distribution shall have been approved for
listing on the NYSE, subject to official notice of issuance;
(c) Any Governmental Approvals shall have been obtained and be in
full force and effect;
(d) The Scheme shall have been sanctioned by the Court and office copies of the Scheme Court
Orders shall have been registered by the UK Registrar of Companies at Companies House;
(e) The Cadbury plc Ordinary Shares shall have been (i) admitted to the official list of the
UKLA and (ii) admitted to trading on the London Stock Exchange’s main market for listed Securities;
(f) Cadbury plc shall have received the Court Order approving the Reduction and such Court Order shall have been delivered to the UK Registrar of Companies and been
registered by him;
(g) No order, injunction or decree issued by any Governmental Entity of
25
competent jurisdiction
or other legal restraint or prohibition preventing the consummation of the Distribution or any of
the transactions related thereto, including the transfers of Assets and Assumption of Liabilities
contemplated by this Agreement, shall be in effect;
(h) CS shall have completed the contribution/transfer of the Beverages Business to DPS;
(i) The financing transactions described in the Information Statement as having occurred prior
to the Distribution shall have been consummated on or prior to the Distribution;
(j) There shall not have occurred an event or development that, in the opinion of the board of
directors of CS, in its sole and absolute discretion, would result in the Distribution having a
material adverse effect on CS or any of its Subsidiaries or CS’ shareholders; and
(k) The Ancillary Agreements shall have been entered into by the applicable Parties.
Section 4.06 Consent to the Reduction. DPS acknowledges that Cadbury plc is proposing to undertake the Reduction and DPS, on
behalf of itself and each member of the DPS Group, (i) shall as soon as reasonably practicable
after the date of this Agreement provide Cadbury plc with an executed letter of consent to the
Reduction in the form attached as Exhibit 4.06 and agrees that a copy of this letter may be
presented to the Court as part of Cadbury plc’s application for confirmation by the Court of the
Reduction; and (ii) undertakes that to the extent further consent is requested by Cadbury plc in
order to effect the Reduction, DPS shall (and shall procure that any member of the DPS Group shall)
give consent promptly on terms reasonably acceptable to Cadbury plc and, for the avoidance of
doubt, such consents shall not be conditional on the provision of any third party guarantee or the
deposit of any funds in any bank or escrow account or any other security, fact, event or thing.
This consent is (and any consent given after the date of this letter shall be) irrevocable.
ARTICLE V
CERTAIN COVENANTS
Section 5.01 Non-Solicitation of Employees. During the period ending on the 18-month anniversary of the Distribution Date, none of the
Parties or any member of their respective Groups shall solicit for employment or interfere with or
attempt to interfere with any officers, employees, representatives or agents of any member of the
other Group, or induce or attempt to induce any of them to leave the employ of the other Group or
violate the terms of their contracts, or any employment arrangements, with the other Group;
provided, however, that the foregoing will not prohibit (x) any advertising in publication or media of general circulation
including trade journals or similar media or hiring any officer, employee, representative or agent
who responds to such advertisement or (y) the soliciting or hiring of any officers, employees,
representatives or agents of any member of the other Group who are offered a position following
26
the
termination of employment by the other Group.
Section 5.02 Auditors and Audits; Annual and Quarterly Financial Statements and
Accounting.
(a) DPS shall use its commercially reasonable efforts to cause its auditors to complete its
audit for the year ending December 31, 2008 such that the auditor will date its opinion of the
audited 2008 annual financial statements on the same date that Cadbury plc’s auditors date their
opinion on Cadbury plc’s audited annual financial statements, such that Cadbury plc is able to meet
its timetable for the printing, filing and public dissemination of Cadbury plc’s 2008 annual
financial statements. In addition, DPS shall use its commercially reasonable efforts to cause its
auditors to comply with the processes and procedures required by Cadbury plc Group’s auditors to
permit Cadbury plc Group’s auditors to opine on the 2008 audited financial statements of Cadbury
plc.
(b) Each Party shall provide, or provide access to the other Party on a timely basis, all
information reasonably required to meet its schedule for the preparation, printing, filing, and
public dissemination of its 2008 annual financial statements and for management’s assessment of the
effectiveness of its disclosure controls and procedures and its internal control over financial
reporting in accordance with Items 307 and 308, respectively, of Regulation S-K and, to the extent
applicable to such Party, its auditor’s audit of its internal control over financial reporting and
management’s assessment thereof in accordance with Section 404 of the Xxxxxxxx-Xxxxx Act of 2002
and the SEC’s and Public Company Accounting Oversight Board’s rules and auditing standards
thereunder, if required (such assessments and audit being referred to as the “Internal Control
Audit and Management Assessments”). Such information shall be provided in the form, time and
manner reasonably requested by CS, which shall not be materially different than the form, time and
manner required by CS prior to the Distribution Date pursuant to the CS Group Reporting Manual in
effect as of the Distribution Date. Without limiting the generality of the foregoing, each Party
will provide all required financial and other information with respect to itself and its
Subsidiaries to its auditors in a sufficient and reasonable time and in sufficient detail to permit
its auditors to take all steps and perform all reviews necessary to provide sufficient assistance
to the other Party’s auditors (each such other Party’s auditors, collectively, the “Other
Party’s Auditors”) with respect to information to be included or contained in such other
Party’s annual financial statements and to permit the Other Party’s Auditors and management to
complete the Internal Control Audit and Management Assessments, if required.
(c) Each Party shall provide, or provide access to the other Party on a timely basis, all
information reasonably required to meet its schedule for the preparation, printing, filing, and
public dissemination of its financial results for the period ending June 30, 2008 (the “Interim
Financial Statements”) and for its Internal Control Audit and Management Assessments, if
required. Such information shall be provided in the form, time and manner reasonably requested by
CS, which shall not be materially different than the form, time and manner required by CS prior to
the Distribution Date pursuant to the CS Group Reporting Manual in effect as of the Distribution Date. Without limiting the generality of the foregoing, each Party will provide
all required financial and other information with respect to itself and its Subsidiaries to its
auditors in a sufficient and reasonable time and in sufficient detail to permit its auditors to
take all steps and perform all reviews necessary to provide sufficient assistance to the Other
Party’s Auditors
27
with respect to information to be included or contained in the Interim Financial
Statements and to permit the Other Party’s Auditors and management to complete the Internal Control
Audit and Management Assessments, if required.
(d) Each Party shall authorize its respective auditors to make reasonably available to the
Other Party’s Auditors both the personnel who performed or are performing the annual audits of such
audited Party (each such Party with respect to its own audit, the “Audited Party”) and work
papers related to the annual audits of such Audited Party, in all cases within a reasonable time
prior to such Audited Party’s auditors’ opinion date, so that the Other Party’s Auditors are able
to perform the procedures they reasonably consider necessary to take responsibility for the work of
the Audited Party’s auditors as it relates to their auditors’ report on such other Party’s
financial statements, all within sufficient time to enable such other Party to meet its timetable
for the printing, filing and public dissemination of its annual financial statements. Each Party
shall make reasonably available to the Other Party’s Auditors and management its personnel and
Records in a reasonable time prior to the Other Party’s Auditors’ opinion date and other Party’s
management’s assessment date so that the Other Party’s Auditors and other Party’s management are
able to perform the procedures they reasonably consider necessary to conduct the Internal Control
Audit and Management Assessments.
(e) To the extent it relates to a pre-Distribution Date period, (i) each of the Parties hereto
shall give the other Party hereto as much prior notice as is reasonably practicable of any changes
in, or proposed determination of, its accounting estimates from those in effect as of immediately
prior to the Distribution Date or of any other action with regard to its accounting estimates or
previously reported financial results which may affect the other Party’s financial results, (ii)
each of the Parties hereto will consult with the other and, if requested by the Party contemplating
such changes, with the Other Party’s Auditors and (iii) unless required by generally accepted
accounting principles or a reasonable interpretation thereof by either Party’s auditors, Law or a
Governmental Entity, neither party shall make such determination or changes which would affect the
other Party’s previously reported financial results without prior consent, which shall not be
unreasonably withheld. Further, each Party will give the other Party prompt notice of any
amendments or restatements of accounting statements with respect to pre-Distribution Date periods,
and will provide the other Party with access as provided in Section 5.02(c) hereof as
promptly as possible such that the other Party will be able to satisfy its financial reporting
requirements.
(f) In the event either Cadbury plc or DPS is the subject of any SEC, FSA or other
Governmental Entity’s comment, review or investigation (formal or informal) relating to a period
prior to the Distribution Date and which in any way relates to the other Party or the other Party’s
public filings, such Party shall provide the other Party with a copy of any comment or notice of
such review or investigation and shall give the other Party a reasonable opportunity to be involved
in responding to such comment, review or investigation, and such other Party shall cooperate with
such Party in connection with responding to such comment, review or investigation.
(g) Any Information exchanged pursuant to this Section 5.02 is subject to Section
8.06.
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Section 5.03 CS Obligations. DPS and Cadbury plc agree that Cadbury plc shall not, and shall cause CS not to, take any
actions that would materially and adversely impact the ability of CS to fulfill its obligations
under this Agreement; provided that Cadbury plc may at any time following the Distribution Date
require CS to assign to Cadbury plc all of CS’ rights and obligations under this Agreement in
substitution for compliance by Cadbury plc and CS with the aforementioned obligation in this
Section 5.03, and upon such assignment, Cadbury plc shall assume all of CS’ obligations under this
Agreement.
ARTICLE VI
INTELLECTUAL PROPERTY MATTERS
Section 6.01 Cadbury Names and Marks.
(a) DPS hereby acknowledges that all right, title and interest in and to the “Cadbury” name,
together with all variations and acronyms thereof and all Trademarks and other identifiers of
source or goodwill containing or incorporating any of the foregoing (the “Cadbury Names and
Marks”), are owned exclusively by the Cadbury plc Group, and that, except as expressly provided
below, any and all right of the DPS Group to use the Cadbury Names and Marks shall terminate as of
the Demerger Effective Time and shall immediately revert to the Cadbury plc Group, along with any
and all goodwill associated therewith. DPS acknowledges that (i) the Beverages Assets shall not
include any Cadbury Names and Marks, and (ii) it has no rights, and is not acquiring any rights, to
use the Cadbury Names and Marks, except as expressly provided herein.
(b) DPS shall, as soon as practicable after the Distribution Date, but in no event later than
10 Business Days thereafter, cause each member of the DPS Group to file amended certificates of
incorporation with the appropriate Governmental Entities changing its corporate name, “doing
business as” name, trade name and any other similar corporate identifier (each, a “Corporate
Name”) to a Corporate Name that does not contain any Cadbury Names and Marks and to supply
promptly any additional information, documents and materials that may be requested by CS with
respect to such filings.
(c) The DPS Group shall, for a period of 15 months after the Distribution Date, be entitled to
use, solely in connection with the operation of the Beverages Business as operated immediately
prior to the Demerger Effective Time, all of their existing stocks of product packaging, signs,
letterheads, business cards, invoice stock, advertisements and promotional materials (other than
Internet or intranet websites and web pages), inventory and other documents and materials
(“Existing Stock”) containing the Cadbury Names and Marks, after which 15-month period DPS
shall cause each member of the DPS Group to remove or obliterate all Cadbury Names and Marks from
such Existing Stock or cease using such Existing Stock; provided that the Cadbury Names and Marks shall be removed from (i) all of the
DPS Group’s Internet websites and web pages within three months following the Distribution Date and
(ii) all of the DPS Group’s intranet websites and web pages within three months following the
Distribution Date.
29
(d) Following the Distribution Date, except as expressly provided in this Agreement, (i) no
other right to use the Cadbury Names and Marks is granted by the Cadbury plc Group to DPS or the
DPS Group, whether by implication or otherwise, and (ii) nothing hereunder permits DPS or any
member of the DPS Group to use the Cadbury Names and Marks on or in connection with any documents,
materials, products or services. DPS shall ensure that all use of the Cadbury Names and Marks by
the DPS Group as provided in this Section 6.01 shall be only with respect to goods and
services of a level of quality equal to or greater than the quality of goods and services with
respect to which the Cadbury Names and Marks were used in the Beverages Business prior to the
Distribution Date. Any and all goodwill generated by the use of the Cadbury Names and Marks under
this Section 6.01 shall inure solely to the benefit of the Cadbury plc Group. In no event
shall DPS or any member of the DPS Group use the Cadbury Names and Marks in any manner that may
damage or tarnish the reputation of the Cadbury plc Group, or the goodwill associated with the
Cadbury Names and Marks.
(e) DPS agrees that the Cadbury plc Group shall not have any responsibility for claims by
third parties arising out of, or relating to, the use by the DPS Group of any Cadbury Names and
Marks after the Distribution Date. DPS shall indemnify and hold
harmless CS and its
Affiliates, and their respective officers, directors, employees, agents, successors and assigns
from any and all such claims that may arise out of the use of any Cadbury Names and Marks by DPS or
any member of the DPS Group (i) in accordance with the terms and conditions of this Section
6.01, other than such claims that the Cadbury Names and Marks infringe the Intellectual
Property rights of any third party, or (ii) in violation of or outside the scope permitted by this
Section 6.01. Notwithstanding anything in this Agreement to the contrary, including
Section 10.02(f), DPS hereby acknowledges that CS, in addition to any other remedies
available to it for any breach or threatened breach of this Section 6.01, shall be entitled
to seek a preliminary injunction, temporary restraining order or other equivalent relief
restraining DPS and any member of the DPS Group from any such breach or threatened breach.
(f) Notwithstanding anything in this Agreement to the contrary, and without limiting the
rights otherwise granted in this Section 6.01, DPS and the DPS Group shall have the right,
at all times after the Distribution Date, to (i) keep records and other historical or archived
documents containing or referencing the Cadbury Names and Marks, (ii) use the Cadbury Names and
Marks to the extent required by or permitted as a fair use under applicable Law, and (iii) refer to
the historical fact that the DPS Group previously conducted the Beverages Business under the
Cadbury Names and Marks.
Section 6.02 Beverages Names and Marks.
(a) For a period of 15 months after the Distribution Date, the Cadbury plc Group shall be
entitled to use, solely in connection with the continued operation of the Cadbury plc Business, all
of their Existing Stock containing any Trademark included in the Beverages Intellectual Property
and/or Beverages Assets, any variation or acronym thereof, or any
Trademark or other identifier of source or goodwill containing, incorporating or associated
with any such Trademark (collectively, the “Beverages Names and Marks”); provided
that the Beverages Names and Marks shall be removed from (i) all of the Cadbury plc Group’s
Internet websites and web pages within three months following the Distribution Date and (ii) all of
the Cadbury plc Group’s intranet websites and web pages within three months following
the
30
Distribution Date. For the avoidance of doubt, (i) “Beverages Names and Marks” does not include
any Trademark owned by or licensed to the Cadbury plc Group as of or following the Distribution
Date and (ii) nothing in this Section 6.02 shall be deemed to limit or modify in any way
any rights of the Cadbury plc Group in or to any Intellectual Property (other than the Beverages
Names and Marks) or under any agreement relating to Intellectual Property to which any member of
the Cadbury plc Group is or becomes a party or beneficiary.
(b) Following the Distribution Date, except as expressly provided in this Agreement, (i) no
other right to use the Beverages Names and Marks is granted by DPS or the DPS Group to the Cadbury
plc Group, whether by implication or otherwise, and (ii) nothing hereunder permits the Cadbury plc
Group to use the Beverages Names and Marks on or in connection with any documents, materials,
products or services. CS shall ensure that all use of the Beverages Names and Marks as
provided in this Section 6.02 shall be only with respect to goods and services of a level
of quality equal to or greater than the quality of goods and services with respect to which the
Beverages Names and Marks were used in the businesses of the Cadbury plc Group prior to the
Distribution Date. Any and all goodwill generated by the use of the Beverages Names and Marks
under this Section 6.02 shall inure solely to the benefit of the DPS Group following the
Distribution Date. In no event shall the Cadbury plc Group use the Beverages Names and Marks in
any manner that may damage or tarnish the reputation of DPS or the DPS Group or the goodwill
associated with the Beverages Names and Marks.
(c) CS agrees that DPS and the DPS Group shall not have any responsibility for claims
by third parties arising out of, or relating to, the use by the Cadbury plc Group of any Beverages
Names and Marks after the Distribution Date. CS shall, and shall cause each of the members of the Cadbury plc Group to, shall indemnify and hold harmless DPS and
the DPS Group, and their respective Affiliates, officers, directors, employees, agents, successors
and assigns, from any and all such claims that may arise out of the Cadbury plc Group’s use of any
Beverages Names and Marks after the Distribution Date (i) in accordance with the terms and
conditions of this Section 6.02, other than such claims that the Beverages Names and Marks
infringe the Intellectual Property rights of any third party or (ii) in violation of or outside the
scope permitted by this Section 6.02. Notwithstanding anything in this Agreement to the
contrary, including Section 10.02(f), CS hereby acknowledges that DPS, in addition
to any other remedies available to it for any breach or threatened breach of this Section
6.02, shall be entitled to seek a preliminary injunction, temporary restraining order or other
equivalent relief restraining the Cadbury plc Group from any such breach or threatened breach.
(d) Notwithstanding anything in this Agreement to the contrary, and without limiting the
rights otherwise granted in this Section 6.02, the Cadbury plc Group shall have the right,
at all times after the Distribution Date, to (i) keep records and other historical or archived
documents containing or referencing the Beverages Names and Marks, (ii) use the Beverages Names and
Marks to the extent required by or permitted as a fair use under applicable Law, (iii) refer to the
historical fact that the members of the Cadbury plc Group previously conducted their
respective businesses under the Beverages Names and Marks, (iv) use and sublicense the
Beverages Names and Marks in connection with the Cadbury plc Group’s business of manufacturing,
distributing, selling, marketing and promoting carbonated and non-carbonated beverages and other
food products throughout American Samoa (the “American Samoa Business”), (v) use their
Existing Stock, web pages and Internet and intranet websites containing
31
any Beverages Names and
Marks in connection with the Cadbury plc Group’s business of manufacturing, distributing, selling,
marketing and promoting carbonated and non-carbonated beverages and other food products throughout
the AsiaPac Territory and (vi) use the “Schweppes” name in any and all jurisdictions outside of the
United States, Canada and Mexico as or as part of any Corporate Name; provided that, no
later than 10 Business Days after the Distribution Date, CS shall use commercially reasonable
efforts to file amended organizational documents with the appropriate Governmental Entities
changing the Corporate Name of any Affiliate organized in any jurisdiction in the United States,
Canada and Mexico to a Corporate Name that does not contain the “Schweppes” name and to supply
promptly any additional information, documents and materials that may be requested by DPS with
respect to such filings.
Section 6.03 Memorabilia.
As of the Distribution Date, any and all photographs, artwork and similar objects and other
physical assets owned by the DPS Group or the Cadbury plc Group that relate to the history or
historical activities of the Beverages Business (“Memorabilia”) shall be deemed to be
owned, as between CS and DPS, by (i) CS to the extent located on the premises of
any member of the Cadbury plc Group and (ii) DPS to the extent located on the premises of any
member of the DPS Group. DPS hereby grants the Cadbury plc Group from the Distribution Date a
worldwide, transferable, perpetual, royalty-free, irrevocable (with right to sub-license) license
to use any Memorabilia: (a) in documenting, memorializing and (if desired) use in marketing its
history; and (b) to the extent necessary to comply with the obligations of the Cadbury plc Group
under Section 18.14 of that certain Amended and Restated Sale and Purchase Agreement by and between
CS and Sapphire European Beverages Limited (among others), dated as of January 30, 2006.
Section 6.04 Additional Licenses.
(a) Effective as of the Distribution Date, CS hereby grants to DPS, solely for the
benefit of each member of the DPS Group, an exclusive, perpetual, irrevocable, royalty-free license
(with the right to grant sub-licenses) of the design known as the “modern egg” bottle design for
use solely in the Territory; provided that DPS shall, and shall procure that each member of
the DPS Group shall, only use such design in relation to beverages sold under the “Schweppes” brand
and for no other purpose. DPS shall indemnify and hold harmless CS and its Affiliates,
officers, directors, employees, agents, successors and assigns from any and all claims that may
arise out of the DPS’ or the DPS Group’s exercise of any rights granted under, or breach of, this
Section 6.04(a).
(b) Effective as of the Distribution Date, DPS hereby grants, and shall cause the DPS Group to
grant, to the Cadbury plc Group a perpetual, non-exclusive, transferable,
royalty-free right and license (with the right to grant sublicenses) in, to and under any and
all copyrights and design rights owned by or licensed to, to the extent permitted, the DPS Group as
of the Distribution Date in product packaging (including bottles), signs, business cards,
letterheads, invoice stock, advertisements and promotional materials and inventory (the “DPS
Licensed Intellectual Property”), to use the DPS Licensed Intellectual Property in connection
with the operation following the Distribution Date of the Cadbury plc Group’s business of
manufacturing, distributing, selling, marketing and promoting carbonated and non-carbonated
beverages and other food products throughout the AsiaPac Territory and American Samoa, to the
extent of any existing use or good faith plans to use as of February 1, 2008 in the AsiaPac
32
Territory or American Samoa. The foregoing license includes the right for the Cadbury plc Group to
make, and have made on their behalf, modifications, enhancements, derivative works and improvements
(“Improvements”) to the DPS Licensed Intellectual Property, and as between the Parties to
this Agreement, any and all such Improvements shall be owned by a
member of the Cadbury plc Group without a duty of
accounting or disclosure to DPS or the DPS Group.
(c) Effective
as of the Distribution Date, CS hereby grants, and shall cause the
Cadbury plc Group to grant, to the DPS Group a perpetual, non-exclusive, transferable, royalty-free
right and license (with the right to grant sublicenses) in, to and under any and all copyrights and
design rights owned by or licensed to, to the extent permitted, the Cadbury plc Group conducting
its beverages business in the AsiaPac Territory and American Samoa as of the Distribution Date in
product packaging (including bottles), signs, business cards, letterheads, invoice stock,
advertisements and promotional materials and inventory (the “AsiaPac Licensed Intellectual
Property”), to use the AsiaPac Licensed Intellectual Property in connection with the operation
of the Beverages Business by the DPS Group following the Distribution Date, to the extent of any
existing use or good faith plans to use as of February 1, 2008 in the Territory. The foregoing
license includes the right for the DPS Group to make, and have made on their behalf, Improvements
to the AsiaPac Licensed Intellectual Property, and as between the Parties to this Agreement, any
and all such Improvements shall be owned by DPS without a duty of accounting or disclosure to
a member of the Cadbury plc Group.
Section 6.05 Know-How Agreement.
(a) Effective
as of the Distribution Date, CS, DPS and the DPS Group shall enter into a know-how agreement substantially in the form attached hereto as
Exhibit 6.06(a) (the “Know-How Agreement”).
(b) At
CS’ request, following the Distribution Date, DPS shall reasonably cooperate
with CS and negotiate in good faith to obtain an assignment and novation in favor of DPS
of CS’ rights and obligations under (i) that certain know-how agreement entered into by and among
CS, The Coca-Cola Company and Atlantic Industries, dated as of July 29, 1999, as amended, and (ii)
that certain know-how agreement entered into by and among CS and Sapphire European Beverages
Limited (among others), dated as of February 2, 2006.
Section 6.06 Domain Names Agreement.
Effective
as of the Distribution Date, CS and DPS shall enter into a domain names agreement substantially in the form attached hereto as
Exhibit 6.07 (the “Domain Names Agreement”).
ARTICLE VII
INDEMNIFICATION
Section 7.01 Release of Pre-Distribution Claims.
(a) Except (i) as provided in Section 7.01(b), (ii) as may be otherwise expressly
provided in this Agreement or any Ancillary Agreement and (iii) for any matter with
33
respect to
which any Party is entitled to indemnification or contribution pursuant to this ARTICLE
VII, each Party, on behalf of itself and each member of its respective Group, its and their
respective Affiliates and all Persons who at any time prior to the Demerger Effective Time were
shareholders (other than the public shareholders of CS), directors, officers, agents or employees
of it or any member of its Group (in their respective capacities as such), in each case do hereby
remise, release and forever discharge the other Party and the other members of such other Party’s
Group, their respective Affiliates and all Persons who at any time prior to the Demerger Effective
Time were shareholders, directors, officers, agents or employees of any member of such other Party
(in their respective capacities as such), in each case from any and all Liabilities whatsoever,
whether at Law or in equity (including any right of contribution), whether arising under any
Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring
or failing to occur or alleged to have occurred or alleged to have failed to occur or any
conditions, in each case, existing on or before the Demerger Effective Time, including in
connection with the Plan of Separation and all other activities to implement the Distribution and
any of the other transactions contemplated hereunder and under the Ancillary Agreements.
(b) Nothing contained in Section 7.01(a) shall release any Person from:
(i) any Liability Assumed, Transferred or allocated to a Party or a member of such
Party’s Group pursuant to or contemplated by, or any other Liability of any member of such
Group arising under, this Agreement or any Ancillary Agreement;
(ii) any Liability for the sale or receipt of goods or property or services purchased,
obtained or used in the ordinary course of business by a member of one Group from a member
of the other Group prior to the Demerger Effective Time;
(iii) any Liability (other than the Intercompany Balances settled pursuant to
Section 2.03) for unpaid amounts for products or services or refunds owing on
products or services due for work done by a member of one Group at the request or on behalf
of a member of the other Group;
(iv) any Liability provided in or resulting from any other Contract or understanding
that is entered into after the Demerger Effective Time between a Party (and/or a member of
such Party’s Group), on the one hand, and the other Party (and/or a member of such Party’s
Group), on the other hand;
(v) any Liability with respect to the Continuing Arrangements;
(vi) any Liability that the Parties have with respect to indemnification or
contribution pursuant to this Agreement or otherwise for claims brought against the Parties
by third Persons, which Liability shall be governed by the provisions of this ARTICLE
VII and, if applicable, the appropriate provisions of the Ancillary Agreements;
(vii) any Liability relating to any agreements, arrangements, commitments or
understandings to which any Person other than the Parties and their respective Affiliates is
a Party (it being understood that to the extent that the rights and obligations of the
Parties and the members of their respective Groups under any such Contracts constitute
Beverages Assets or Beverages Liabilities or Cadbury plc Assets or Cadbury plc
34
Liabilities,
such Contracts shall be assigned or retained pursuant to ARTICLE II); or
(viii) any Liability relating to agreements, arrangements, commitments or
understandings to which any non-wholly-owned Subsidiary of CS or DPS, as the case
may be, is a Party.
(c) Neither Party shall permit any member of its Group to make any claim or demand, or
commence any Action asserting any claim or demand, including any claim of contribution or any
indemnification, against the other Party or any member of the other Party’s Group, or any other
Person released pursuant to Section 7.01(a), with respect to any Liabilities released
pursuant to Section 7.01(a).
(d) It is the intent of each Party, pursuant to the provisions of this Section 7.01,
to provide for a full and complete release and discharge of all Liabilities existing or arising
from all acts and events occurring and all conditions existing on or before the Demerger Effective
Time, whether known or unknown, between or among any Party (and/or a member of such Party’s Group),
on the one hand, and the other Party (and/or a member of such Party’s Group), on the other hand
(including any contractual agreements or arrangements existing or alleged to exist between or among
any such members on or before the Demerger Effective Time), except as specifically set forth in
Section 7.01(a) and Section 7.01(b). At any time, at the reasonable request of the
other Party, each Party shall cause each member of its respective Group to execute and deliver
releases reflecting the provisions hereof.
(e) For the avoidance of doubt, neither Party shall have any Liability to the other Party in
the event that any information exchanged or provided to the other Party pursuant to this Agreement
(but excluding any such information included in a Disclosure Document) which is an estimate or
forecast, or which is based on an estimate or forecast, is found to be inaccurate.
Section 7.02
Indemnification by CS. Except as otherwise set forth in any provision of this Agreement or any Ancillary Agreement
or Continuing Arrangement, following the Demerger Effective Time, CS shall and shall cause the
other members of the Cadbury plc Group to indemnify, defend and hold harmless the Beverages
Indemnitees from and against any and all Indemnifiable Losses of the Beverages Indemnitees to the
extent arising out of, by reason of or otherwise in connection with (i) the Cadbury plc Liabilities
or alleged
Cadbury plc Liabilities, (ii) any breach by any member of the Cadbury plc Group of any of the
Shared Contracts, (iii) with respect to statements or omissions made or occurring after the
Demerger Effective Time, any misstatement or alleged misstatement of a material fact contained in
any document filed with the SEC or the FSA by any member of the DPS Group pursuant to the
Securities Act, the Exchange Act, the Prospectus Rules or the Listing Rules, or any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only (A) to the extent that those Liabilities are caused by
any misstatement or omission or alleged misstatement or omission in any information that is
furnished in writing to any member of the DPS Group by any member of the Cadbury plc Group after
the Demerger Effective Time, (B) if such member of the Cadbury plc Group has been informed in
writing in advance that such information will be used in such filing
and (C) if the information used by a member of the DPS Group in any
such filing is not materially different to the information furnished by
a member of the Cadbury plc Group, or (iv) any
35
breach by CS or
any member of the Cadbury plc Group of any provision of this Agreement or any Ancillary Agreement
or Continuing Arrangement unless such Ancillary Agreement or Continuing Arrangement expressly
provides for separate indemnification therein, in which case any such indemnification claims shall
be made thereunder.
Section 7.03 Indemnification by DPS. Except as otherwise specifically set forth in any provision of this Agreement or any
Ancillary Agreement, following the Demerger Effective Time, DPS shall and shall cause the other
members of the DPS Group to indemnify, defend and hold harmless the Cadbury plc Indemnitees from
and against any and all Indemnifiable Losses of the Cadbury plc Indemnitees to the extent arising
out of, by reason of or otherwise in connection with (i) the Beverages Liabilities or any alleged
Beverages Liabilities, (ii) any breach by any member of the DPS Group of any of the Shared
Contracts, (iii) with respect to statements or omissions made or occurring after the Demerger
Effective Time, any misstatement or alleged misstatement of a material fact contained in any
document filed with the SEC or the FSA by any member of the Cadbury plc Group pursuant to the
Securities Act, the Exchange Act, the Prospectus Rules or the Listing Rules, or any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only (A) to the extent that those Liabilities are caused by
any misstatement or omission or alleged misstatement or omission in any information that is
furnished in writing to any member of the Cadbury plc Group by any member of the DPS Group after
the Demerger Effective Time, (B) if such member of the DPS Group has been informed in writing
in advance that such information will be used in such filing and (C)
if the information used by a member of the Cadbury plc Group in any
such filing is not materially different to the information furnished by
a member of the DPS Group, or (iv) any breach by DPS or any
member of the DPS Group of any provision of this Agreement or any Ancillary Agreement or Continuing
Arrangement unless such Ancillary Agreement or Continuing Arrangement expressly provides for
separate indemnification therein, in which case any such indemnification claims shall be made
thereunder.
Section 7.04 Procedures for Indemnification.
(a) An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee
has determined has given, or reasonably anticipates could give rise to, a right of indemnification
under this Agreement (other than a Third Party Claim which shall be governed by Section
7.04(b)), within 30 days of such determination, stating the amount of the Indemnifiable Loss
claimed, if known, and method of computation thereof, and containing a
reference to the provisions of this Agreement in respect of which such right of
indemnification is claimed by such Indemnitee or arises; provided, however, that
the failure to provide such notice shall not release the Indemnifying Party from any of its
obligations except to the extent the Indemnifying Party shall have been actually materially
prejudiced as a result of such failure.
(b) If an Action is made against a Cadbury plc Indemnitee or a Beverages Indemnitee (each, an
“Indemnitee”) by any Person who is not a Party or a member of a Group of a Party (a
“Third Party Claim”) as to which such Indemnitee is or may be entitled to indemnification
pursuant to this Agreement, such Indemnitee shall notify the other Party which is or may be
required pursuant to this ARTICLE VII or pursuant to any Ancillary Agreement or Continuing
Arrangement to make such indemnification (the “Indemnifying Party”) in writing, and in
reasonable detail, of the Third Party Claim promptly (and in any event within 30 days)
36
after
receipt by such Indemnitee of written notice of the Third Party Claim; provided,
however, that the failure to provide notice of any such Third Party Claim pursuant to this
sentence shall not release the Indemnifying Party from any of its obligations except to the extent
the Indemnifying Party shall have been actually materially prejudiced as a result of such failure.
Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly after the Indemnitee’s
receipt thereof (and in any event within 10 Business Days), copies of all notices and documents
(including court papers) received by the Indemnitee relating to the Third Party Claim.
(c) An Indemnifying Party shall be entitled (but shall not be required) to assume and control
the defense of any Third Party Claim, at such Indemnifying Party’s own cost and expense and by such
Indemnifying Party’s own counsel that is reasonably acceptable to the applicable Indemnitees, if it
gives notice of its intention to do so to the applicable Indemnitees within 30 days of the receipt
of notice of the Third Party Claim from such Indemnitees. After notice from an Indemnifying Party
to an Indemnitee of its election to assume the defense of a Third Party Claim, such Indemnitee
shall have the right to employ separate counsel and to participate in (but not control) the
defense, compromise, or settlement thereof, at its own expense and, in any event, shall cooperate
with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the
Indemnifying Party’s expense, all witnesses, pertinent Information and materials in such
Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably
required by the Indemnifying Party.
(d) If an Indemnifying Party elects not to assume responsibility for defending a Third Party
Claim, or fails to notify an Indemnitee of its election as provided in Section 7.04(c),
such Indemnitee may defend such Third Party Claim at the cost and expense of the Indemnifying
Party. If the Indemnitee is conducting the defense against any such Third Party Claim, the
Indemnifying Party shall cooperate with the Indemnitee in such defense and make available to the
Indemnitee, at the Indemnifying Party’s expense, all witnesses, pertinent Information, material in
such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as
are reasonably required by the Indemnitee.
(e) If the Indemnifying Party has assumed the defense of the Third Party Claim in accordance
with the terms of this Agreement, no Indemnitee may settle or compromise any Third Party Claim
without the consent of the Indemnifying Party.
(f) In the case of a Third Party Claim, no Indemnifying Party shall consent to entry of any
judgment or enter into any settlement of the Third Party Claim without the consent of the
Indemnitee; provided that consent from the Indemnitee shall not be required if such
settlement contains a full and unconditional release of the Indemnitee and does not permit any
injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly
or indirectly, against any Indemnitee.
(g) Except as may otherwise be specifically provided for in the Ancillary Agreements and
except as set forth in Sections 10.02 (d) and
(f) hereof, the indemnification provisions
of this ARTICLE VII shall be the sole and exclusive remedy of the Parties for any failure
by the other Party to perform and comply with any covenants and agreements in this Agreement and
any other dispute, controversy or claim (whether arising in contract, tort or
37
otherwise) that may
arise out of or relate to, or arise under or in connection with, this Agreement or any Ancillary
Agreement or Continuing Arrangement, or the transactions contemplated hereby or thereby (including
all actions taken in furtherance of the transactions contemplated hereby or thereby on or prior to
the Demerger Effective Time), between or among any member of the Cadbury plc Group, on the one
hand, and any member of the DPS Group, on the other hand.
Section 7.05 Cooperation in Defense and Settlement. CS and DPS agree that, from and after the Demerger Effective Time, if an Action is
commenced by a third party (or any member of either Party’s respective Group) with respect to which
one or both Parties (or any member of either Party’s respective Group) is a nominal defendant
and/or such Action is otherwise not a Liability allocated to such named Party under this Agreement
or any Ancillary Agreement or Continuing Arrangement, then the other Party shall use commercially
reasonable efforts to cause such nominal defendant to be removed from such Action.
Section 7.06 Indemnification Obligations Net of Insurance Proceeds and Other Amounts.
(a) Any Indemnifiable Loss subject to indemnification or contribution pursuant to this
ARTICLE VII will be calculated (i) net of Insurance Proceeds received by the Indemnitee
that actually reduce the amount of the Indemnifiable Loss, and (ii) net of any proceeds received by
the Indemnitee from any third party for indemnification for such Liability that actually reduce the
amount of the Indemnifiable Loss (“Third Party Proceeds”). If an Indemnitee receives a
payment required by this Agreement from an Indemnifying Party in respect of any Indemnifiable Loss
(an “Indemnity Payment”) and subsequently receives Insurance Proceeds or Third Party
Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of
the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if
the Insurance Proceeds or Third Party Proceeds had been received, realized or recovered before the
Indemnity Payment was made.
(b) Any insurer that would otherwise be obligated to pay any claim shall not be relieved of
the responsibility with respect thereto or, solely by virtue of the indemnification and
contributions provisions hereof, have any subrogation rights with respect thereto. The Indemnitee
shall use reasonable best efforts to seek to collect or recover any third party Insurance Proceeds
and any Third Party Proceeds (other than Insurance Proceeds under an
arrangement where future premiums are adjusted to reflect prior claims in excess of prior
premiums) to which the Indemnitee is entitled in connection with any Indemnifiable Loss for which
the Indemnitee seeks contribution or indemnification pursuant to this ARTICLE VII (it being
understood that the obligation to use reasonable best efforts to collect or recover any third party
Insurance Proceeds or Third Party Proceeds shall not require the Indemnitee to commence any
litigation proceedings against any such third party); provided that the Indemnitee’s
inability to collect or recover any such Insurance Proceeds or Third Party Proceeds shall not limit
the Indemnifying Party’s obligations hereunder.
(c) CS and DPS agree that any indemnification payment made pursuant to this ARTICLE
VII shall be paid free and clear of any Tax deduction or withholding. If any deduction or
withholding is required by applicable Law to be made from any indemnification
38
payment made pursuant
to this ARTICLE VII, the amount of the payment will be increased by such additional amount
as is necessary to ensure that the net amount received by the Indemnitee (after taking
account of all such deductions and withholdings) is equal to the amount which it would have received had the payment in
question not been subject to any deductions or withholdings. Notwithstanding the foregoing, the
Parties agree to use commercially reasonable efforts (to the extent such efforts will not result in
materially adverse consequences to a Party) to mitigate or avoid such
deductions and withholdings.
(d) Any indemnification payment made under this ARTICLE VII will be subject to
adjustment for certain net Tax benefits and net Tax costs
attributable to such indemnification payment (including gross-up) and
to amounts indemnified
against as provided in the Tax Sharing Agreement.
Section 7.07 Additional Matters; Survival of Indemnities.
(a) The indemnity and contribution agreements contained in this ARTICLE VII shall
remain operative and in full force and effect, regardless of (i) any investigation made by or on
behalf of any Indemnitee; (ii) any knowledge prior to the date hereof by the Indemnitee of
Indemnifiable Losses for which it might be entitled to indemnification or contribution hereunder;
and (iii) any termination of this Agreement.
(b) The rights and obligations of each Party and their respective Indemnitees under this
ARTICLE VII shall survive the sale or other Transfer by any Party or its respective
Subsidiaries of any Assets or businesses or the assignment by it of any Liabilities.
ARTICLE VIII
ACCESS TO RECORDS; ACCESS TO INFORMATION; LEGAL AND OTHER MATTERS
Section 8.01 Provision of Corporate Records.
Other than in circumstances in which indemnification is or may be sought pursuant to
ARTICLE VII (in which event the provisions of such Article will govern), and subject to
appropriate restrictions for privileged or
Confidential Information:
(a) After the Distribution Date until the earlier of (i) the seventh anniversary of the
Distribution Date or (ii) the date on which
CS is entitled to destroy Information related
to the period prior to the Distribution Date pursuant to its record retention policies, upon the
prior written request by DPS for specific and identified Information which relates to (i) DPS (or a
member of its Group) or the conduct of the Beverages Business prior to the Distribution Date, or
(ii) any Ancillary Agreement or Continuing Arrangement to which CS and DPS (or any member of their
respective Groups) are parties, CS shall provide, as soon as reasonably practicable following the
receipt of such request, appropriate copies of such documents (or the originals thereof if the
Party making the request has a reasonable need for such originals) in the possession or control of
CS or any of its Affiliates or Subsidiaries, but only to the extent such
39
items so relate and are
not already in the possession or control of the requesting Party. CS shall notify DPS at least 90
days in advance of destroying any such Information in order to provide DPS the opportunity to
access such Information in accordance with this Section 8.01(a) and if DPS fails to request
that such Information be delivered to them, at their expense, within 90 days after receipt of such
notice, CS may destroy such Information.
(b) After the Distribution Date until the earlier of (i) the seventh anniversary of the
Distribution Date or (ii) the date on which DPS is entitled to destroy Information related to the
period prior to the Distribution Date pursuant to its record retention policies, upon the prior
written request by CS for specific and identified Information which relates to (i) CS (or a member
of its Group) or the conduct of the Cadbury plc Business, prior to the Distribution Date, or (ii)
any Ancillary Agreement or Continuing Arrangement to which DPS and CS (or a member of their
respective Groups) are parties, as applicable, DPS shall provide, as soon as reasonably practicable
following the receipt of such request, appropriate copies of such documents (or the originals
thereof if the Party making the request has a reasonable need for such originals) in the possession
or control of DPS or any of its Subsidiaries, but only to the extent such items so relate and are
not already in the possession or control of the requesting Party. DPS shall notify CS at least 90
days in advance of destroying any such Information in order to provide CS the opportunity to access
such Information in accordance with this Section 8.01(b) and if CS fails to request that
such Information be delivered to them, at their expense, within 90 days after receipt of such
notice, DPS may destroy such Information.
Section 8.02 Access to Information. Other than in circumstances in which indemnification is sought pursuant to ARTICLE
VII (in which event the provisions of such Article will govern), from the Distribution Date and
for so long as any access is required pursuant to Section 8.01, each of CS and DPS shall
afford to the other and its authorized accountants, counsel and other designated representatives
reasonable access during normal business hours, subject to appropriate restrictions for privileged
or Confidential Information and to preserve the completeness and integrity of the Information, to
the personnel, properties, and Information of such Party and its Subsidiaries insofar as such
access is reasonably required by the other Party and relates to (x) such other Party or the conduct
of its business prior to the Demerger Effective Time or (y) any Ancillary Agreement or Continuing
Arrangement. Nothing in this Section 8.02 shall require any Party to violate any agreement
with any third party regarding the confidentiality of Confidential Information relating to that
third party or its business; provided, however, that in the event that a Party is
required to disclose any such
Information, such Party shall use commercially reasonable efforts to seek to obtain such third
party Consent to the disclosure of such Information.
Section 8.03 Disposition of Information.
(a) Each Party acknowledges that Information in its or in a member of its Group’s possession,
custody or control as of the Demerger Effective Time may include Information owned by the other
Party or a member of such Party’s Group and not related to (i) its Group or its business or (ii)
any Ancillary Agreement to which it or any member of its Group is a Party.
(b) Notwithstanding such possession, custody or control, such Information
40
shall remain the
property of such other Party or member of such other Party’s Group. Each Party agrees (i) that any
such Information is to be treated as Confidential Information of the Party or Parties to which it
relates and handled in accordance with Section 8.07 (except that such Information will not
be used for any purpose other than a purpose permitted under this Agreement) and (ii) following a
reasonable request from the other Party, subject to applicable Law, use commercially reasonable
efforts within a reasonable time to (1) purge such Information from its databases, files and other
systems and not retain any copy of such Information (including, if applicable, by transferring such
Information to the Party to which such Information belongs), or (2) if such purging is not
practicable, to encrypt or otherwise make unreadable or inaccessible such Information.
Section 8.04 Witness Services.
At all times from and after the Distribution Date, each of CS and DPS shall use its
commercially reasonable efforts to make available to the other, upon reasonable written request,
its and any member of its Group’s officers, directors, employees and agents as witnesses to the
extent that (i) such Persons may reasonably be required to testify in connection with the
prosecution or defense of any Action in which the requesting Party may from time to time be
involved (except for claims, demands or Actions between members of each Group) and (ii) there is no
conflict of interest in the underlying Action between the requesting Party and CS and DPS, as
applicable; provided that the existence of a claim for indemnification under ARTICLE
VII shall not in and of itself be deemed a conflict of interest. A Party providing a witness
to the other Party under this Section shall be entitled to receive from the recipient of such
services, upon the presentation of invoices therefor, payments for such amounts, relating to
disbursements and other out-of-pocket expenses (which shall not include the costs of salaries and
benefits of employees who are witnesses or any pro rata portion of overhead or other costs of
employing such employees which would have been incurred by such employees’ employer regardless of
the employees’ service as witnesses), as may be reasonably incurred and properly paid under
applicable Law.
Section 8.05 Reimbursement; Other Matters. Except to the extent otherwise contemplated by this Agreement, any Ancillary Agreement or
any Continuing Arrangement, a Party providing Information or access to Information to the other
Party under this ARTICLE VIII shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements
and other out-of-pocket expenses, as may be reasonably incurred in providing such Information or
access to such Information.
Section 8.06 Confidentiality. Notwithstanding any termination of this Agreement, the Parties shall hold, and shall cause
each of the members of their respective Groups to hold, and shall each cause their respective
officers, employees, agents, consultants, representatives and advisors to hold, in strict
confidence, and not to disclose or release or use, without the prior written consent of the other
Party, any and all Confidential Information concerning the other Party; provided that the
Parties may disclose, or may permit disclosure of, Confidential Information (i) to their respective
auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors who
have a need to know such Information and are informed of their obligation to hold such Information
confidential to the same extent as is applicable to the Parties and in respect of whose failure to
comply with such obligations, the applicable Party will be responsible, (ii) if the Parties or any
member of their respective Groups
41
are required or compelled to disclose any such Confidential
Information by judicial or administrative process or by other requirements of Law or stock exchange
rule, (iii) as required in connection with any legal or other proceeding by one Party against the
other Party, or (iv) as necessary in order to permit a Party to prepare and disclose its financial
statements, Tax Returns or other required disclosures. Notwithstanding the foregoing, in the event
that any demand or request for disclosure of Confidential Information is made pursuant to clause
(ii) above, each Party, shall promptly notify the other of the existence of such request or demand
and shall provide the other a reasonable opportunity to seek an appropriate protective order or
other remedy, which such Parties will cooperate in obtaining. In the event that such appropriate
protective order or other remedy is not obtained, the Party whose Confidential Information is
required to be disclosed shall or shall cause the other Party to furnish, or cause to be furnished,
only that portion of the Confidential Information that is legally required to be disclosed and
shall take commercially reasonable steps to ensure that confidential treatment is accorded such
Information.
Section 8.07 Privileged Matters.
(a) The Parties recognize that certain legal and other professional services (both internal
and external) have been and will be provided prior to and after the Distribution Date and have been
and will be rendered for the collective benefit of each of the members of the Cadbury plc Group and
the DPS Group, and that each of the members of the Cadbury plc Group and the DPS Group should be
deemed to be the client with respect to such services for the purposes of asserting all privileges
which may be asserted under applicable Law;provided that with respect to such services the
Parties agree as follows:
(i) the Parties shall not be entitled to assert privilege with respect to such legal
and other professional services provided prior to the Distribution Date against the other
Party or any member of the other Party’s Group;
(ii) CS shall be entitled, on behalf of itself or any member of the Cadbury plc Group,
in perpetuity, to control the assertion or waiver of all privileges in connection with
privileged information to the extent relating to the Cadbury plc Business, whether or not
the privileged information is in the possession of or under the control of CS or DPS. CS
shall also be entitled, on behalf of itself or any member of the Cadbury plc Group, in
perpetuity, to control the assertion or waiver of all privileges in connection with
privileged information that relates solely to the subject matter of any claims constituting
Cadbury plc Liabilities, now pending or which may be asserted in the future, in any
lawsuits or other proceedings initiated against or by any member of the Cadbury plc Group,
whether or not the privileged information is in the possession of or under the control of CS
or DPS;
(iii) DPS shall be entitled, on behalf of itself or any member of the DPS Group, in
perpetuity, to control the assertion or waiver of all privileges in connection with
privileged information to the extent relating to the Beverages Business, whether or not the
privileged information is in the possession of or under the control of CS or DPS. DPS shall
also be entitled, on behalf of itself or any member of the DPS Group, in perpetuity, to
control the assertion or waiver of all privileges in connection with privileged
42
information
that relates solely to the subject matter of any claims constituting Beverages Liabilities,
now pending or which may be asserted in the future, in any lawsuits or other proceedings
initiated against or by any member of the DPS Group, whether or not the privileged
information is in the possession of or under the control of CS or DPS; and
(iv) the Parties shall have a shared privilege, with equal right to assert or waive,
subject to the restrictions in this Section 8.07, with respect to all privileges not
allocated pursuant to the terms of Section 8.07(a)(ii) and (iii). All
privileges relating to any claims, proceedings, litigation, disputes, or other matters which
involve members of both the Cadbury plc Group and the DPS Group in respect of which such
Parties retain any responsibility or Liability under this Agreement, shall be subject to a
shared privilege among them.
(b) No Party may waive any privilege which could be asserted under any applicable Law, and in
which the other Party has a shared privilege, without the consent of the other Party, which shall
not be unreasonably withheld or delayed or as provided in Section 8.07(c) or Section
8.07(d) below. Consent shall be in writing, or shall be deemed to be granted unless written
objection is made within 10 Business Days after notice upon the other Party requesting such
consent.
(c) In the event of any litigation or dispute between or among the Parties, or any members of
their respective Groups, either Party may waive a privilege in which the other Party or member of
such Group has a shared privilege, without obtaining the consent of the other Party;
provided that such waiver of a shared privilege shall be effective only as to the use of
Information with respect to the litigation or dispute between the relevant Parties and/or the
applicable members of their respective Group’s, and shall not operate as a waiver of the shared
privilege with respect to third parties.
(d) If a dispute arises between or among the Parties or any member of their respective Groups
regarding whether a privilege should be waived to protect or advance the interest of any Party,
each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice
to the rights of the other Party, and shall not unreasonably withhold consent to any request for
waiver by another Party. Each Party specifically agrees that it will not withhold consent to
waiver for any purpose except to protect its own legitimate interests.
(e) Upon receipt by any Party or by any member of a Party’s Group of any
subpoena, discovery, court order or other request which arguably calls for the production or
disclosure of Information subject to a shared privilege or as to which another Party has the sole
right hereunder to assert a privilege, or if any Party obtains knowledge that any of its or any
member of its Group’s current or former directors, officers, agents or employees have received any
subpoena, discovery or other requests which arguably calls for the production or disclosure of such
privileged Information, such Party shall promptly notify the other Party of the existence of the
request and shall provide the other Party a reasonable opportunity to review the Information and to
assert any rights it or they may have under this Section 8.07 or otherwise to prevent the
production or disclosure of such privileged Information.
Section 8.08 Ownership of Information.
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(a) Any information owned by one Party or any of its Subsidiaries that is provided to a
requesting Party pursuant to this ARTICLE VIII shall be deemed to remain the property of
the providing Party. Unless specifically set forth herein, nothing contained in this Agreement
shall be construed as granting or conferring rights of license or otherwise in any such
information.
(b) Any Information provided by or on behalf of or made available by or on behalf of the other
Party hereto pursuant to this ARTICLE VIII shall be on an “as is,” “where is” basis and no
Party is making any representation or warranty with respect to such Information or the completeness
thereof.
Section 8.09 Other Agreements. Except as otherwise provided in Section 8.06, Sections 8.01 through
8.08 and 8.10 shall not apply with respect to Information, Records, actions and
other matters relating to Tax matters, all of which shall be governed by the Tax Sharing Agreement.
Section 8.10 Control of Legal Matters.
(a) General. (i) On or prior to the Distribution Date, CS shall assume (or, as applicable,
retain), or cause the applicable member of the Cadbury plc Group to assume (or, as applicable,
retain) control of each of the Cadbury plc Litigation Matters, and CS shall use its reasonable best
efforts to have a member of the Cadbury plc Group substituted for any member of the DPS Group named
as a defendant in any such Cadbury plc Litigation Matters; provided, however, that
no member of the Cadbury plc Group shall be required to make any such effort if the removal of any
member of the DPS Group would jeopardize insurance coverage or rights to indemnification from third
parties applicable to such Cadbury plc Litigation Matters.
(ii) On or prior to the Distribution Date, DPS shall assume (or, as applicable,
retain), or cause the applicable member of the DPS Group to assume (or, as applicable,
retain) control of each of the Beverages Litigation Matters, and DPS shall use its
reasonable best efforts to have a member of the DPS Group substituted for any member of the
Cadbury plc Group named as a defendant in any such Beverages Litigation Matters;
provided, however, that no member of the DPS Group shall be required to make
any such effort if the removal of any member of the Cadbury plc Group would jeopardize
insurance coverage or rights to indemnification from third parties applicable to such Beverages Litigation Matters.
(b) Except as provided in Section 8.10(a), after the Distribution Date, the Parties
hereto agree that with respect to all Actions commenced against any member of the Cadbury plc
Group, any member of the DPS Group or members of both Groups relating to events that take place
before, on or after the Distribution Date, such demands, claims or Actions shall be controlled by:
(i) A member of the Cadbury plc Group, if such Action relates solely to the Cadbury plc
Assets, Cadbury plc Liabilities or Cadbury plc Business (as the Cadbury plc Business is
conducted after the Distribution Date) (a “Future Cadbury plc Litigation Matter”),
and CS shall use its reasonable best efforts to have a member of the Cadbury
44
plc Group substituted for any member of the DPS Group which may be named as a defendant in such Future
Cadbury plc Litigation Matter; provided, however, that no member of the
Cadbury plc Group shall be required to make any such effort if the removal of any member of
the DPS Group would jeopardize insurance coverage or rights to indemnification from third
parties applicable to such Future Cadbury plc Litigation Matter;
(ii) A member of the DPS Group, if such claim, demand or Action relates solely to the
Beverages Assets, Beverages Liabilities or Beverages Business (as the Beverages Business is
conducted after the Distribution Date) (a “Future Beverages Litigation Matter”), and
DPS shall use its reasonable best efforts to have a member of the DPS Group substituted for
any member of the Cadbury plc Group which may be named as a defendant in such Future
Beverages Litigation Matter; provided, however, that no member of the DPS
Group shall not be required to make any such effort if the removal of any member of the
Cadbury plc Group would jeopardize insurance coverage or rights to indemnification from
third parties applicable to such Future Beverages Litigation Matter; and
(iii) Except as provided in subparagraphs (i) or (ii) above, or as may be otherwise
agreed by DPS and CS, a member of each of the DPS Group and the Cadbury plc Group jointly if
(A) members of both Groups jointly operate or operated at the relevant time the Business to
which such Action relates or such Action relates to both the Cadbury plc Assets, Cadbury plc
Liabilities or Cadbury plc Business and the Beverages Assets, Beverages Liabilities or
Beverages Business, (B) an Action arises from or relates to any Disclosure Document or any
other document filed with any Governmental Authority (including the SEC or the FSA) at or
prior to the Distribution Date by CS, Cadbury plc or DPS in connection with the
Distribution, (C) an Action is brought by or on behalf of the current or former stockholders
of CS, Cadbury plc or DPS and relates to any filing by CS, Cadbury plc or DPS with the SEC
or the FSA other than those described in clause (B), (D) an Action is brought by any person
against CS, Cadbury plc or DPS with respect to the Distribution, (the matters in clauses (A)
through (D) being “Future Joint Litigation Matters”); provided,
however, that no member of either Group may settle a Future Joint Litigation Matter
without the prior written consent of the members of the other Group named or involved in
such Future Joint Litigation Matter, which consent shall not be unreasonably withheld or
delayed; provided further that either party may settle a Future Joint Litigation matter if such settlement is for money only
and provides a full release from any liability under such Future Joint Litigation Matter for
the other party and, as applicable, the members of the other party’s Group.
(c) Claims Against Third Parties. Actions by any member of either Group against third
parties, and any proceeds or other benefits that may be received as a result of such Actions and
any Liabilities arising out of or resulting from such Actions, that are (i) listed in Schedule
8.10(c)(i) or that relate to the Cadbury plc Business and not to the Beverages Business shall
be the property of the applicable member of the Cadbury plc Group (“Cadbury plc Claims”),
(ii) listed in Schedule 8.10(c)(ii) or that relate to the Beverages Business and not to the
Cadbury plc Business shall be the property of the applicable member of the DPS Group
(“Beverages Claims”), and (iii) listed in Schedule 8.10(c)(iii) or that relate to both the Cadbury
45
plc Business and the Beverages Business shall be the property of, and shall be
shared by, CS and DPS in proportion to their respective interests (“Joint Cadbury plc
and Beverages Claims”).
(d) Retention of Counsel. The parties hereto agree that attorneys who have worked for any
member of the Cadbury plc Group or any member of the DPS Group prior to the Distribution Date are
not conflicted from representing any members of the Cadbury plc Group or the DPS Group, except to
the extent such representation is adverse to a member of the other Group.
(e) Notice to Third Parties; Service of Process; Cooperation.
(i) To the extent necessary, to effectuate the provisions in this Agreement, CS and DPS
shall cause the members of their respective Groups to promptly notify their respective
agents for service of process and all other necessary parties, including plaintiffs and
courts and shall provide instructions for proper service of legal process and other
documents.
(ii) Each Party shall, and shall cause the members of its respective Groups to, attempt
in good faith to not accept service on behalf of any member of the other Party’s Group, and
shall, and shall cause the members of their respective Groups to, use their reasonable best
efforts to deliver to each other any legal process or other documents incorrectly delivered
to them or their agents as soon as possible following receipt.
(f) Nothing in this Section 8.10 shall effect in any way the indemnification
provisions in ARTICLE VII or the allocation of Liabilities between the Parties under this
Agreement.
ARTICLE IX
INSURANCE
Section 9.01 Policies and Rights Included Within Assets. The Beverages Assets shall
include (i) any and all rights of an insured Party under each of the Beverages Shared
Policies, subject to the terms of such Beverages Shared Policies and any limitations or
obligations of DPS contemplated by this ARTICLE IX, specifically including rights of
indemnity and the right to be defended by or at the expense of the insurer, with respect to all
alleged wrongful acts, claims, suits, actions, proceedings, injuries, losses, liabilities, damages
and expenses incurred or claimed to have been incurred prior to the Distribution Date by any Party
in connection with the conduct of the Beverages Business or, to the extent any claim is made
against DPS or any of its Subsidiaries or conduct of the Cadbury plc Business, and which alleged
wrongful acts, claims, suits, actions, proceedings, injuries, losses, liabilities, damages and
expenses may arise out of an insured or insurable event, occurrence or wrongful act under one or
more of such Beverages Shared Policies; provided, however, that nothing in this
clause shall be deemed to constitute (or to reflect) an assignment of such Beverages Shared
Policies, or any of them, to DPS, and (ii) the Beverages Policies.
46
Section 9.02 Administration; Other Matters.
(a)
Administration. Except as otherwise provided in Section 9.02 hereof, from and
after the Demerger Effective Time, CS shall be responsible for (i) Insurance Administration of the
Beverages Shared Policies; and (ii) Claims Administration under such Beverages Shared Policies with respect to Cadbury
plc Liabilities and (iii) reasonable oversight of Claims Administration by DPS under such Beverages Shared
Policies with respect to Beverages Liabilities; provided that the retention of such
responsibilities by CS is in no way intended to limit, inhibit or preclude any right to insurance
coverage for any Beverages Shared Policy Insured Claim of a named insured under such Policies as contemplated
by the terms of this Agreement; provided further that CS’ retention of the
administrative responsibilities for the Beverages Shared Policies shall not relieve the Party submitting any
Beverages Shared Policy Insured Claim of the primary responsibility for reporting such Beverages Shared Policy Insured
Claim accurately, completely and in a timely manner or of such Party’s authority to settle any such
Beverages Shared Policy Insured Claim within any period permitted or required by the relevant Policy. CS may
discharge its administrative responsibilities under this Section 9.02 by contracting for
the provision of services by independent parties. Each of the applicable Parties shall pay any
costs relating to defending its respective Beverages Shared Policy Insured Claims under Beverages Shared Policies to
the extent such costs including defense, out-of-pocket expenses, and direct and indirect costs of
employees or agents of CS related to Claims Administration and Insurance Administration are not
covered under such Policies.
(b) Claims Under Beverages Shared Policies. Where Beverages Liabilities are specifically covered under
the same Beverages Shared Policy for periods prior to the Distribution Date, or where such Beverages Shared Policies
cover claims made after the Distribution Date with respect to an occurrence or wrongful act prior
to the Distribution Date, then from and after the Distribution Date, DPS may claim coverage for
Beverages Shared Policy Insured Claims under such Beverages Shared Policy as and to the extent that such insurance is
available up to the full extent of the applicable limits of liability of such Beverages Shared Policy (and
may receive any Insurance Proceeds with respect thereto as contemplated by Section 9.02(c)
hereof), subject to the terms of this Section 9.02. Except as set forth in this
Section 9.02, no member of the Cadbury plc Group or the DPS Group, as applicable, shall be
liable to a member of the other Party’s Group for claims not reimbursed by insurers for any reason
not within the control of a member of the Cadbury plc Group or the DPS Group, as the case may be,
including coinsurance provisions, deductibles, quota share deductibles, self-insured retentions,
bankruptcy or insolvency of an insurance carrier, Beverages Shared Policy limitations or
restrictions, any coverage disputes, any failure to timely claim by a member of the Cadbury
plc Group or the DPS Group or any defect in such claim or its processing. It is expressly
understood that the foregoing shall not limit any Party’s liability to the other Party for
indemnification pursuant to ARTICLE VII.
(c) Allocation of Insurance Proceeds. Except as otherwise provided in Section 9.02,
Insurance Proceeds received with respect to claims, costs and expenses under the Beverages Shared Policies
shall be paid to or on behalf of CS, which shall thereafter administer the Beverages Shared Policies by
paying the Insurance Proceeds, as appropriate, to CS with respect to Cadbury plc Liabilities and to
DPS with respect to Beverages Liabilities, net of the reasonable, documented out-of-pocket costs incurred by CS
in administering the applicable claim (it being understood that such costs shall fairly reflect the
costs to CS of providing such administrative services, including the costs incurred by CS in
respects of any increased premiums resulting from any such claims on
such Beverages Shared Policy and a reasonable allocation for
salary, wages, benefits, Taxes and other expenses directly attributable thereto and without any markup for profit).
CS will provide documentation of any reasonable out-of-pocket costs incurred at the time of payment of the allocable portions of the indemnity costs and Insurance Proceeds to DPS. Payment
47
of the allocable portions of indemnity costs of Insurance Proceeds resulting from such Policies will be made by CS
to the appropriate Party upon receipt from the insurance carrier. Each Party agrees to obtain for
itself and each member of its Group insurance policies (in forms and amounts determined by that
Party), which shall be effective as of the Distribution Date, to cover any Cadbury plc Liabilities
or Beverages Liabilities, as applicable, that exceed the Insurance Proceeds available from such
Beverages Shared Policies. Each of the Parties agrees to use commercially reasonable efforts to maximize
available coverage under those Beverages Shared Policies applicable to it, and to take all commercially
reasonable steps to recover from all other responsible parties in respect of an Beverages Shared Policy
Insured Claim to the extent coverage limits under a Beverages Shared Policy have been exceeded or would be
exceeded as a result of such Beverages Shared Policy Insured Claim (it being understood that the obligation
to use commercially reasonable efforts to recover from all other responsible parties in respect of
a Beverages Shared Policy Insured Claim shall not require any Party to commence any litigation proceedings
against any such other responsible party).
Section 9.03 Agreement for Waiver of Conflict and Shared Defense. In the event that Beverages Shared Policy Insured Claims of both Parties exist relating to the same
occurrence, the Parties shall jointly defend and waive any conflict of interest necessary to the
conduct of the joint defense. Nothing in this ARTICLE IX shall be construed to limit or
otherwise alter in any way the obligations of the Parties to this Agreement, including those
created by this Agreement, by operation of Law or otherwise.
ARTICLE X
DISPUTE RESOLUTION
Section 10.01 Disputes. Except as otherwise specifically provided in any Ancillary Agreement or Continuing
Arrangement (the terms of which, to the extent so provided therein, shall govern the resolution of
disputes, controversies or claims that are the subject of such Ancillary Agreement or Continuing
Arrangement), the procedures for discussion, negotiation and arbitration set forth in this
ARTICLE X shall apply to all disputes, controversies or claims (whether arising in
contract, tort or otherwise) that may arise out of or relate to, or arise under or in connection
with, this Agreement or any Ancillary Agreement or Continuing Arrangement, or the transactions
contemplated hereby or thereby (including all actions taken in furtherance of the transactions
contemplated hereby or thereby on or prior to the Demerger Effective Time), between or among any
member of the Cadbury plc Group, on the one hand, and any member of the DPS Group, on the other
hand (collectively, “Agreement Disputes”).
Section 10.02 Dispute Resolution.
(a) CS and DPS will use their respective commercially reasonable efforts to resolve
expeditiously any Agreement Dispute on a mutually acceptable negotiated basis. In furtherance of
the foregoing, any member of the DPS Group or the Cadbury plc Group involved in an Agreement
Dispute may deliver a notice (an “Escalation Notice”) demanding an in-person meeting
involving senior level management representatives of Cadbury plc and DPS (or, if CS and DPS agree,
of the appropriate strategic business unit or division within each such entity). A copy of any
such Escalation Notice shall be given to the Chief Legal Officer of each of Cadbury
48
plc and DPS (which copy shall state that it is an Escalation Notice pursuant to this Section 10.02).
Any agenda, location or procedures for such discussions or negotiations between CS and DPS
may be established by CS and DPS from time to time; provided, however, that the
representatives of Cadbury plc and DPS shall use their reasonable efforts to meet within 30 days of
the Escalation Notice.
(b) If the senior level management representatives of Cadbury plc and DPS are not able to
resolve the Agreement Dispute within 30 days after the date of receipt of the Escalation Notice (or
such shorter time as is necessary to avoid immediate irreparable injury), then the Agreement
Dispute shall be submitted to the chief executive officers of both Cadbury plc and DPS.
(c) If CS and DPS are not able to resolve the Agreement Dispute through the processes
set forth in subsections (a) and (b) of this Section 10.02 within 60 days after the date of
the Escalation Notice, such Agreement Dispute shall be determined, at the request of either CS or DPS by
arbitration, which shall be conducted (i) by three arbitrators, consisting of one
arbitrator appointed by CS, one arbitrator appointed by DPS and a third arbitrator
appointed by the two arbitrators appointed by CS and DPS or, if the arbitrators appointed
by CS and DPS cannot agree on a third arbitrator, the third arbitrator shall be appointed
by the chief executive officers of both CS and DPS, and (ii) in accordance with the
Commercial Rules of the American Arbitration Association (except with respect to the selection of
arbitrators) in effect at the time of filing of the demand for arbitration.
(d) The decision of the arbitrators (which, notwithstanding any other provision of this
Agreement to the contrary, may include an order to specifically perform any provision of this
Agreement) shall be final and binding upon the Parties hereto, and the expense of the arbitration
(including the award of attorneys’ fees to the prevailing party) shall be paid as the arbitrators
determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered
by any court of competent jurisdiction. The seat of the arbitration shall be New York, New York.
(e) The existence of, and any discussions, negotiations, arbitrations or other proceedings
relating to, any Agreement Dispute shall be considered by each Party hereto as Confidential
Information until such time as a judgment thereon is entered in a court of competent jurisdiction.
(f) Notwithstanding anything contained in this Agreement to the contrary, no member of the DPS
Group and no member of the Cadbury plc Group shall have the right to institute judicial proceedings
against the other Party or any Person acting by, through or under such other Party, in order to
enforce the instituting Party’s rights hereunder, except that any such member shall be permitted to
seek an injunction in aid of arbitration with respect to an Agreement Dispute to preserve the
status quo during the pendency of any arbitration proceeding pursuant to paragraph (c) of this
Section 10.02. All judicial proceedings arising out of or relating to this Agreement shall
be heard and determined exclusively in any New York state or federal court sitting in the Borough
of Manhattan in The City of New York.
49
Section 10.03 Continuity of Service and Performance. Unless otherwise agreed in writing, the Parties will continue to provide service and honor
all other commitments under this Agreement and each Ancillary Agreement during the course of
dispute resolution pursuant to the provisions of this ARTICLE X with respect to all matters
not subject to such Agreement Dispute.
ARTICLE XI
TERMINATION
Section 11.01 Termination. This Agreement may be terminated and the Distribution may be abandoned at any time prior to
the Distribution Date by and in the sole discretion of CS.
Section 11.02 Effect of Termination. In the event of termination of this Agreement in accordance with Section 11.01,
this Agreement shall forthwith become void and there shall be no Liability on the part of either
Party hereto.
Section 11.03 Amendment. This Agreement may not be amended or modified except (a) by an instrument in writing signed
by, or on behalf of, the Parties hereto or (b) by a waiver in accordance with Section
11.04.
Section 11.04 Waiver. Either Party to this Agreement may (a) extend the time for the performance of any of the
obligations or other acts of the other Party and (b) waive compliance with any of the agreements of
the other Party or conditions to such Party’s obligations contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by the Party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent
breach or a subsequent waiver of the same term or condition, or a waiver of any other term or
condition of this Agreement. The failure of either Party hereto to assert any of its rights
hereunder shall not constitute a waiver of any of such rights.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Limitation of Liability. IN NO EVENT SHALL ANY MEMBER OF THE CADBURY PLC GROUP OR THE DPS GROUP BE LIABLE TO ANY
MEMBER OF THE DPS GROUP OR THE CADBURY PLC GROUP, RESPECTIVELY, FOR ANY SPECIAL, CONSEQUENTIAL,
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT OR ANY ANCILLARY
AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY’S
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INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN ARTICLE VII.
Section 12.02 Expenses. Notwithstanding anything in this Agreement or in any Ancillary Agreement to the contrary,
all DPS Transaction Costs shall be borne by DPS and all Transaction Costs shall be borne by CS.
Section 12.03 Notices. All notices, requests, claims, demands and other communications hereunder shall be in
writing and shall be given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by an internationally recognized overnight courier service, by
facsimile or registered or certified mail (postage prepaid, return receipt requested) to the
respective Parties hereto at the following addresses (or at such other address for a Party as shall
be specified in a notice given in accordance with this Section 12.03):
(a) | if to Cadbury plc or CS: | ||
Cadbury plc 00 Xxxxxxxx Xxxxxx Xxxxxx X0X 0XX Facsimile: 00-00-0000-0000 Attention: Xxxxx Xxxx, Esq. Chief Legal Officer |
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with a copies to: | |||
Shearman & Sterling LLP 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000 Telecopy: (000) 000-0000 Attention: Xxxxxxxxx O’X. Xxxxxx, Esq. Xxxxx Xxxxxxxxx, Esq. |
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and | |||
Xxxxxxxxx and May Xxx Xxxxxxx Xxx Xxxxxx XX0X 0XX Facsimile: 00-00-0000-0000 Attention: Xxx Xxxxxx |
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(b) | if to DPS: | ||
0000 Xxxxxx Xxxxx Xxxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Xxxxx X. Xxxxxxx, Xx. General Counsel |
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Section 12.04 Public Announcements. Following the Demerger Effective Time, neither Party to this Agreement shall make, or cause
to be made, any press release or public announcement in respect of this Agreement or the
transactions contemplated by this Agreement without the prior written consent of the other Party
unless otherwise required by Law or applicable stock exchange regulation, and the Parties to this
Agreement shall cooperate as to the timing and contents of any such press release or public
announcement. The Parties shall use commercially reasonable efforts to agree on the timing and
content of any announcement or communication relating to the financial results and/or results of
operations of the quarters ending March 31, 2008 and June 30, 2008 for DPS and the period ending
June 30, 2008 for Cadbury plc.
Section 12.05 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being
enforced by any Law or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect for so long as the economic or legal substance of the
transactions contemplated by this Agreement is not affected in any manner materially adverse to
either Party hereto. Upon such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as possible in an
acceptable manner in order that the transactions contemplated by this Agreement are consummated as
originally contemplated to the greatest extent possible.
Section 12.06 Entire Agreement. This Agreement, the Ancillary Agreements and the Transfer Documents constitute the entire
agreement of the Parties hereto and their Affiliates with respect to the subject matter hereof and
thereof and supersede all prior agreements and undertakings, both written and oral, between the
Parties hereto with respect to the subject matter hereof and thereof.
Section 12.07 Assignment. This Agreement may not be assigned by a Party hereto without the consent of the other Party
hereto; provided that a merger shall not be deemed to be an assignment under this
Agreement; and provided further, that any Party may assign this Agreement or any of
its rights and obligations hereunder to one or more Affiliates of such Party without the consent of
the other Party provided that no such assignment shall relieve the assignor of any of its
obligations hereunder.
Section 12.08 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of the Parties hereto
and their respective successors and permitted assigns, and nothing herein, express or implied
(including the provisions of ARTICLE VII relating to indemnified parties), is intended to
or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Section 12.09 Currency. Unless otherwise specified in this Agreement, all references to currency, monetary values
and dollars set forth herein means United States dollars and all payments hereunder shall be made
in United States dollars unless otherwise mutually agreed upon by the Parties.
Section 12.10 Tax Matters. Except as otherwise specifically provided herein, this Agreement (including ARTICLE
VII (other than Section 7.06)) shall not govern Tax matters,
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which shall be governed by the Tax Sharing Agreement.
Section 12.11 Employee Matters. Except as otherwise provided herein and not inconsistent with the Employee Matters
Agreement, this Agreement shall not govern any employee matters, which shall be exclusively
governed by the Employee Matters Agreement.
Section 12.12 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York.
Section 12.13 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
12.13.
Section 12.14 Survival of Covenants. Except as expressly set forth in any Ancillary Agreement, the covenants and agreements
contained in this Agreement and each Ancillary Agreement, and Liability for the breach of any
obligations contained herein or therein, shall survive the Distribution Date and shall remain in
full force and effect.
Section 12.15 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or
portable document format (“.pdf”)) in counterparts, and by the different Parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
CADBURY SCHWEPPES PLC |
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By | ||||
Name: | ||||
Title: | ||||
XX XXXXXX SNAPPLE GROUP, INC. |
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By | ||||
Name: | ||||
Title: | ||||
CADBURY PLC, solely for the purposes of Sections 4.01(a) and (b) and Section 5.03 |
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By: | ||||
Name: | ||||
Title: | ||||