Exhibit 10.1
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CORPORATE AGREEMENT
by and between
KRAFT FOODS INC.
and
XXXXXX XXXXXX COMPANIES INC.
_________________, 2001
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.............................................................................................1
1.1. Definitions.........................................................................................1
1.2. Internal References.................................................................................6
ARTICLE II KRAFT BOARD REPRESENTATION.............................................................................6
2.1. General.............................................................................................6
2.2. Xxxxxx Xxxxxx Designees.............................................................................6
2.3. Additional Members of Kraft Board...................................................................6
2.4. Efforts of Kraft....................................................................................7
2.5. Chairman of Kraft Board.............................................................................7
ARTICLE III CERTAIN COVENANTS AND AGREEMENTS......................................................................7
3.1. No Violations.......................................................................................7
3.2. Access to Information...............................................................................8
3.3. Intercompany Transactions...........................................................................9
3.4. Actions Requiring Consent...........................................................................9
ARTICLE IV CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST......................................................9
4.1. General.............................................................................................9
4.2. Business Activities.................................................................................9
4.3. Corporate Opportunities............................................................................10
4.4. Xxxxxx Xxxxxx Entities and Kraft Entities..........................................................10
4.5. Notice.............................................................................................11
ARTICLE V INDEMNIFICATION........................................................................................11
5.1. Kraft Indemnification of the Xxxxxx Xxxxxx Entities for Certain Liabilities........................11
5.2. Xxxxxx Xxxxxx Indemnification of Kraft Entities....................................................11
5.3. Third-Party Rights; Tax Benefits...................................................................12
5.4. Notice and Payment of Claims.......................................................................12
5.5. Notice and Defense of Third-Party Claims...........................................................12
5.6. Contribution.......................................................................................13
ARTICLE VI OPTION................................................................................................14
6.1. Option.............................................................................................14
6.2. Notice.............................................................................................14
6.3. Option Exercise and Payment........................................................................14
6.4. Effect of Failure to Exercise......................................................................15
6.5. Termination of Option..............................................................................15
ARTICLE VII REGISTRATION RIGHTS..................................................................................15
ARTICLE VIII TERM................................................................................................15
ARTICLE IX MISCELLANEOUS.........................................................................................16
9.1. Limitation of Liability............................................................................16
9.2. Subsidiaries.......................................................................................16
9.3. Amendments.........................................................................................16
9.4. Severability.......................................................................................16
9.5. Notices............................................................................................16
9.6. Further Assurances.................................................................................17
9.7. Counterparts.......................................................................................17
9.8. Governing Law......................................................................................17
9.9. Entire Agreement...................................................................................17
9.10. Successors........................................................................................17
9.11. Specific Performance..............................................................................19
APPENDIX I - REGISTRATION RIGHTS AGREEMENT......................................................................A1
ii
CORPORATE AGREEMENT
THIS CORPORATE AGREEMENT ("Agreement") is entered into as of
_______________, 2001 by and between KRAFT FOODS INC., a Virginia corporation
("Kraft"), and XXXXXX XXXXXX COMPANIES INC., a Virginia corporation ("Xxxxxx
Xxxxxx").
RECITALS
A. Xxxxxx Xxxxxx owns all of the issued and outstanding
Class B Common Stock, no par value per share ("Class B Common Stock"), of Kraft
and owns 275,000,000 shares of Class A Common Stock, no par value per share
("Class A Common Stock"), of Kraft, and Kraft is a member of Xxxxxx Xxxxxx'
"affiliated group" of corporations (the "Xxxxxx Xxxxxx Group") for federal
income tax purposes.
B. The parties are contemplating that Kraft will issue
shares of Class A Common Stock in an initial public offering (the "Initial
Public Offering") registered under the Securities Act of 1933, as amended.
C. The parties desire to enter into this Agreement to
set forth their agreement regarding: (i) the composition of the Kraft Board of
Directors; (ii) certain covenants and agreements regarding the conduct of
Kraft's business; (iii) treatment of potential corporate opportunities and
conflicts of interest between the parties; (iv) Xxxxxx Xxxxxx' rights to
purchase additional shares of Class A Common Stock upon certain issuances of
Kraft securities to any person to permit Xxxxxx Xxxxxx to maintain its
percentage ownership interest in Kraft; and (v) certain registration rights with
respect to Class A Common Stock.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Kraft and Xxxxxx
Xxxxxx, for themselves and their successors and assigns, hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1. Definitions.
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As used in this Agreement, the following terms will have the following
meanings, applicable both to the singular and the plural forms of the terms
described:
"Action" means any claim, suit, action, arbitration, inquiry,
investigation or other proceeding of any nature (whether criminal, civil,
legislative, administrative, regulatory, prosecutorial or otherwise) by or
before any arbitrator or Governmental Entity.
"Affiliate" means, with respect to a given Person, any Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to direct the
vote of a majority of the votes that may be cast in the election of directors
(or other Persons acting in similar capacities) of such Person or otherwise to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Agreement" has the meaning ascribed thereto in the preamble hereto, as
such agreement may be amended and supplemented from time to time in accordance
with its terms.
"Applicable Stock" means at any time the (i) shares of Common Stock
owned by the Xxxxxx Xxxxxx Entities that were owned on the date hereof, plus
(ii) shares of Class A Common Stock purchased by the Xxxxxx Xxxxxx Entities
pursuant to Article VI of this Agreement, plus (iii) shares of Common Stock that
were issued to Xxxxxx Xxxxxx Entities in respect of shares described in either
clause (i) or clause (ii) in any reclassification, share combination, share
subdivision, share dividend, share exchange, merger, consolidation or similar
transaction or event.
"Class A Common Stock" has the meaning ascribed thereto in the recitals
to this Agreement.
"Class B Common Stock" has the meaning ascribed thereto in the recitals
to this Agreement.
"Common Stock" means the Class B Common Stock, the Class A Common Stock
and any other class of Kraft's capital stock representing the right to vote
generally for the election of directors and, for so long as Kraft continues to
be a subsidiary corporation includable in a consolidated federal income tax
return of the Xxxxxx Xxxxxx Group, any other security of Kraft treated as stock
for purposes of Section 1504(a) of the Internal Revenue Code of 1986, as
amended.
"Finally Determined" means, with respect to any Action, threatened
Action or other matter, that the outcome or resolution of that Action,
threatened Action or matter has either (i) been decided by an arbitrator or
Governmental Entity of competent jurisdiction by judgment, order, award or other
ruling or (ii) has been settled or voluntarily dismissed and, in the case of
each of clauses (i) and (ii), the claimants' rights to maintain that Action,
threatened Action or other matter have been finally adjudicated, waived,
discharged or extinguished, and that judgment, order, ruling, award, settlement
or dismissal (whether mandatory or voluntary, but if voluntary that dismissal
must be final, binding and with prejudice as to all claims specifically pleaded
in that Action) is subject to no further appeal, vacatur proceeding or
discretionary review.
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"Governmental Entity" means any government or any state, department or
other political subdivision thereof, or any governmental body, agency, authority
(including, but not limited to, any central bank or taxing authority) or
instrumentality (including, but not limited to, any court, tribunal or grand
jury) exercising executive, prosecutorial, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indemnified Party" has the meaning ascribed thereto in Section 5.4.
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"Indemnifying Party" has the meaning ascribed thereto in Section 5.4.
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"Information" has the meaning ascribed thereto in Section 3.2(a).
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"Initial Public Offering" has the meaning ascribed thereto in the
recitals to this Agreement.
"Initial Public Offering Date" means the date of completion of the
initial sale of Class A Common Stock in the Initial Public Offering.
"Issuance Event" has the meaning ascribed thereto in Section 6.2.
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"Issuance Event Date" has the meaning ascribed thereto in Section 6.2.
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"Kraft" has the meaning ascribed thereto in the preamble hereto.
"Kraft Articles" means the articles of incorporation of Kraft, as
amended.
"Kraft Board" means the Board of Directors of Kraft.
"Kraft Bylaws" means the amended and restated bylaws of Kraft.
"Kraft Entities" means Kraft and its Subsidiaries; and "Kraft Entity"
shall mean any of the Kraft Entities.
"Kraft Entity Liabilities" means, except as otherwise specifically
provided in any Transaction Document, all Liabilities, whether arising before,
at or after the Initial Public Offering Date, (i) of or in any way relating, in
whole or in part, to any Kraft Entity or (ii) arising from the conduct of, in
connection with or in any way relating to, in whole or in part, the businesses
and operations of the Kraft Entities or the ownership or use of assets or
property in connection therewith. Notwithstanding the foregoing, "Kraft Entity
Liabilities" shall exclude (i) all Liabilities for Taxes of the Kraft Entities
(because the Tax Sharing Agreement will govern those Liabilities); (ii) all
Liabilities of the Kraft Entities pursuant to the Services Agreement (because
the Services Agreement will govern those Liabilities); (iii) all Liabilities of
the Kraft Entities pursuant to the Registration Rights Agreement (because the
Registration Rights Agreement will govern those Liabilities); and (iv) all
Liabilities directly, indirectly or derivatively based on, arising out of or in
any way relating to, in whole or in part, the businesses and operations of the
Xxxxxx Xxxxxx Entities or the ownership or use of assets or property in
connection therewith.
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"Kraft Indemnitee" has the meaning ascribed thereto in Section 5.2(a).
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"Liabilities" means any and all claims, debts, liabilities,
assessments, fines, penalties, damages, losses, disgorgements and obligations,
of any kind, character or description (whether absolute, contingent, matured,
not matured, liquidated, unliquidated, accrued, known, unknown, direct,
indirect, derivative or otherwise) whenever arising, including, but not limited
to, all costs and expenses relating thereto (including, but not limited to, all
expenses of investigation, all attorneys' fees and all out-of-pocket expenses in
connection with any Action or threatened Action).
"Market Price" of any shares of Class A Common Stock on any date means
(i) the last sale price of such shares on such date on the New York Stock
Exchange, Inc. or, if such shares are not listed thereon, on the principal
national securities exchange or automated interdealer quotation system on which
such shares are traded or (ii) if such sale price is unavailable or such shares
are not so traded, the value of such shares on such date determined in
accordance with agreed-upon procedures reasonably satisfactory to Xxxxxx Xxxxxx
and Xxxxx.
"Option" has the meaning ascribed thereto in Section 6.1(a).
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"Option Notice" has the meaning ascribed thereto in Section 6.2.
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"Ownership Percentage" means, at any time, the fraction, expressed as a
percentage and rounded to the nearest thousandth of a percent, whose numerator
is the number of shares of the Applicable Stock and whose denominator is the
number of outstanding shares of Common Stock of Kraft; provided, however, that
any shares of Common Stock issued by Kraft in violation of its obligations under
Article VI of this Agreement shall not be deemed outstanding for the purpose of
determining the Ownership Percentage.
"Person" means any individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization, government (and
any department or agency thereof) or other entity.
"Xxxxxx Xxxxxx" has the meaning ascribed thereto in the preamble
hereto.
"Xxxxxx Xxxxxx Board" means the Board of Directors of Xxxxxx Xxxxxx.
"Xxxxxx Xxxxxx Designee" has the meaning ascribed thereto in Section
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2.1(b).
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"Xxxxxx Xxxxxx Entities" means Xxxxxx Xxxxxx and Subsidiaries of Xxxxxx
Xxxxxx (other than Subsidiaries that constitute Kraft Entities); and "Xxxxxx
Xxxxxx Entity" shall mean any of the Xxxxxx Xxxxxx Entities.
"Xxxxxx Xxxxxx Entity Liabilities" means, except as otherwise
specifically provided in any Transaction Document, all Liabilities, whether
arising before, at or after the Initial Public Offering Date, (i) of or in any
way relating, in whole or in part, to any Xxxxxx Xxxxxx Entity or (ii) arising
from the conduct of, in connection with or in any way relating to, in whole or
in part, the businesses and operations of the Xxxxxx Xxxxxx Entities or the
ownership or use of assets or
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property in connection therewith. Notwithstanding the foregoing, "Xxxxxx Xxxxxx
Entity Liabilities" shall exclude (i) all Liabilities for Taxes of the Xxxxxx
Xxxxxx Entities (because the Tax Sharing Agreement will govern those
Liabilities); (ii) all Liabilities of the Xxxxxx Xxxxxx Entities pursuant to the
Services Agreement (because the Services Agreement will govern those
Liabilities); and (iii) all Liabilities of the Xxxxxx Xxxxxx Entities pursuant
to the Registration Rights Agreement (because the Registration Rights Agreement
will govern those Liabilities).
"Xxxxxx Xxxxxx Group" has the meaning ascribed thereto in the recitals
to this Agreement.
"Xxxxxx Xxxxxx Indemnitee" has the meaning ascribed thereto in Section
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5.1.
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"Xxxxxx Xxxxxx Ownership Reduction" means any decrease at any time in
the Ownership Percentage to less than 50%.
"Registration Rights Agreement" means the Registration Rights
Agreement, in the form attached hereto as Appendix I, to be dated as of the date
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hereof, between Kraft and Xxxxxx Xxxxxx.
"Representative" shall mean, with respect to any Person, each of such
Person's directors, officers, employees, representatives, attorneys,
accountants, advisors and agents, and each of the heirs, executors and assigns
of any of the foregoing.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Services Agreement" means the Services Agreement to be dated as of the
date hereof between Kraft and Xxxxxx Xxxxxx Management Corporation, a Delaware
corporation.
"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which the power to direct
the vote of the majority of the votes that may be cast in the election of
directors (or other Persons acting in similar capacities) is held or controlled,
directly or indirectly, by such Person or by one or more of the Subsidiaries of
such Person or by a combination thereof. "Subsidiary," when used with respect to
Xxxxxx Xxxxxx or Xxxxx, shall also include any other entity affiliated with
Xxxxxx Xxxxxx or Xxxxx, as the case may be, that Xxxxxx Xxxxxx and Xxxxx may
hereafter agree in writing shall be treated as a "Subsidiary" for the purposes
of this Agreement.
"Tax" has the meaning assigned to that term in the Tax Sharing
Agreement.
"Tax Sharing Agreement" means the Tax Sharing Agreement to be dated as
of the date hereof between Kraft and Xxxxxx Xxxxxx.
"Third-Party Claim" has the meaning ascribed thereto in Section 5.5.
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"Transaction Documents" means this Agreement, the Tax Sharing
Agreement, the Registration Rights Agreement, the Services Agreement, and the
exhibits and schedules to those agreements.
1.2. Internal References.
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Unless the context indicates otherwise, references to
Articles, Sections and paragraphs shall refer to the corresponding articles,
sections and paragraphs in this Agreement and references to the parties shall
mean the parties to this Agreement.
ARTICLE II
KRAFT BOARD REPRESENTATION
2.1. General.
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The provisions of this Article II contemplate that there will
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be nine members of the Kraft Board. If the number of members of the Kraft Board
is greater or lesser than nine, the parties shall amend this Article II to
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maintain its purpose.
2.2. Xxxxxx Xxxxxx Designees.
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(a) Xxxxxx Xxxxxx shall have the right to designate for
nomination by the Kraft Board (or any nominating committee thereof) to the Kraft
Board three of the members of the Kraft Board. Notwithstanding anything to the
contrary set forth herein, Kraft's obligations to Xxxxxx Xxxxxx with respect to
the election or appointment of Xxxxxx Xxxxxx designated members shall be limited
to the obligations set forth under subsection (b) and Section 2.5 below.
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(b) Kraft shall exercise all authority under applicable law
and shall use its best efforts to cause three persons designated by Xxxxxx
Xxxxxx to be elected to the Kraft Board. Commencing with the annual meeting of
shareholders of Kraft to be held in 2002 and prior to each annual meeting of
shareholders of Kraft thereafter, Xxxxxx Xxxxxx shall be entitled to present to
the Kraft Board, or any nominating committee thereof, three designees of Xxxxxx
Xxxxxx (each, a "Xxxxxx Xxxxxx Designee") (or such other number of Xxxxxx Xxxxxx
Designees as would result in Xxxxxx Xxxxxx having the appropriate number of
Xxxxxx Xxxxxx Designees on the Kraft Board as determined pursuant to Section 2.1
above) for election to the Kraft Board at each annual meeting of shareholders of
Kraft. In the event that any Xxxxxx Xxxxxx Designee elected to the Kraft Board
shall cease to serve as a director for any reason, the vacancy resulting
therefrom shall be filled by the Kraft Board with a substitute Xxxxxx Xxxxxx
Designee.
2.3. Additional Members of Kraft Board.
---------------------------------
Four of the individuals designated for nomination by
the Kraft Board (or any nominating committee thereof) to the Kraft Board shall
be unaffiliated with either Xxxxxx Xxxxxx or Xxxxx (the "Additional Board
Nominees"). Notwithstanding anything to the contrary set forth herein, Kraft's
obligations to Xxxxxx Xxxxxx with respect to the election or appointment of the
Additional Board Nominees shall be limited to the obligations set forth under
this Section 2.3 and Section 2.5 below. In the event that any Additional Board
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Nominee elected to the Kraft
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Board shall cease to serve as a director for any reason, the vacancy resulting
therefrom shall be filled by the Kraft Board with a substitute Additional Board
Nominee.
2.4. Efforts of Kraft.
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Kraft shall at all such times exercise all authority
under applicable law and use its best efforts to cause all Xxxxxx Xxxxxx
Designees and Additional Board Nominees to be nominated as Kraft Board members
by the nominating committee of the Kraft Board, if there is such a committee.
Kraft shall cause each Xxxxxx Xxxxxx Designee and Additional Board Nominee for
election to the Kraft Board to be included in the slate of designees recommended
by the Kraft Board to Kraft's shareholders for election as directors at each
annual meeting of the shareholders of Kraft (or at any special meeting held for
the election of directors) and shall use its best efforts to cause the election
of each such Xxxxxx Xxxxxx Designee and Additional Board Nominee, including
soliciting proxies in favor of the election of such persons.
2.5. Chairman of Kraft Board.
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Xxxxxx Xxxxxx shall have the right to designate the
chairman of the Kraft Board. Kraft shall exercise all authority under applicable
law and shall use its best efforts to cause the person designated by Xxxxxx
Xxxxxx to be elected as chairman of the Kraft Board.
ARTICLE III
CERTAIN COVENANTS AND AGREEMENTS
3.1. No Violations.
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(a) Kraft covenants and agrees that it will not take
any action or enter into any commitment or agreement that may reasonably be
anticipated to result, with or without notice and with or without lapse of time
or otherwise, in a contravention or event of default by any Xxxxxx Xxxxxx Entity
of: (i) any provisions of applicable law or regulation; (ii) any provision of
Xxxxxx Xxxxxx' articles of incorporation or bylaws; (iii) any credit agreement
or other material
7
instrument binding upon Xxxxxx Xxxxxx in effect as of the date of this
Agreement; or (iv) any judgment, order or decree of any Governmental Entity
having jurisdiction over Xxxxxx Xxxxxx or any of its assets.
(b) Xxxxxx Xxxxxx covenants and agrees that it will not
take any action or enter into any commitment or agreement that may reasonably be
anticipated to result, with or without notice and with or without lapse of time
or otherwise, in a contravention or event of default by any Kraft Entity of: (i)
any provisions of applicable law or regulation; (ii) any provision of the Kraft
Articles or of the Kraft Bylaws; (iii) any credit agreement or other material
instrument binding upon Kraft in effect as of the date of this Agreement; or
(iv) any judgment, order or decree of any Governmental Entity having
jurisdiction over Kraft or any of its assets.
(c) Kraft and Xxxxxx Xxxxxx agree to provide to the
other any information and documentation requested by the other for the purpose
of evaluating and ensuring compliance with Sections 3.1(a) and 3.1(b) hereof.
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(d) Notwithstanding the foregoing Sections 3.1(a),
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3.1(b) and 3.1(c), nothing in this Agreement is intended to limit or restrict in
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any way Xxxxxx Xxxxxx' rights as a shareholder of Kraft.
3.2. Access to Information.
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(a) Kraft, subject to compliance by its Subsidiaries
and all of its designated Representatives with the provisions of this Section
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3.2, shall afford to Xxxxxx Xxxxxx and its authorized accountants, counsel and
---
other designated Representatives reasonable access and duplicating rights (with
copying costs to be borne by Xxxxxx Xxxxxx) during normal business hours to all
books and records and documents, communications, items and matters
(collectively, "Information") within the knowledge, possession or control of
Kraft or any Kraft Entity relating to their respective businesses insofar as
such access is (i) reasonably required by Xxxxxx Xxxxxx or any Xxxxxx Xxxxxx
Entity, as the case may be, for the purpose of performing their respective
obligations under this Agreement or any other agreement between the parties, and
(ii) permitted by law (and shall use reasonable efforts to cause Persons or
firms possessing relevant Information to give similar access).
(b) Except as required by law, regulation or legal or
judicial process, Xxxxxx Xxxxxx agrees that neither it nor any Xxxxxx Xxxxxx
Entity nor any of their respective directors, officers or employees will,
without the prior written consent of Kraft, disclose to any Person any material,
non-public information concerning the business or affairs of Kraft acquired from
any director, officer or employee of Kraft (including any director, officer or
employee of Kraft who is also a director, officer or employee of Xxxxxx Xxxxxx).
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3.3. Intercompany Transactions.
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All material intercompany transactions between Kraft and
Xxxxxx Xxxxxx after the date hereof, including any material amendments to this
Agreement, the Services Agreement, the Tax Sharing Agreement or any other
agreement between Kraft and Xxxxxx Xxxxxx, will be subject to the approval of
the Audit Committee of the Kraft Board.
3.4. Actions Requiring Consent.
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(a) Kraft must obtain Xxxxxx Xxxxxx' written consent
before:
(i) entering into any agreement or arrangement that
binds or purports to bind Xxxxxx Xxxxxx or any of the other Xxxxxx Xxxxxx
Entities, or contains provisions that trigger a default or require a material
payment when Xxxxxx Xxxxxx exercises any of its rights: (A) under this
Agreement; or (B) to convert the shares of Class B Common Stock into Class A
Common Stock in accordance with the terms of the Kraft Articles;
(ii) declaring any extraordinary dividend or making
any other extraordinary distribution to the holders of the Common Stock; or
(iii) issuing any Common Stock or securities
convertible into or exercisable for Common Stock except for Class A Common Stock
issued or granted to employees of the Kraft Entities pursuant to the terms of
any stock option or other executive or employee benefit or compensation plan.
(b) Xxxxxx Xxxxxx may assign all or any portion of its rights
under this Section 3.4 to any transferee of shares of Common Stock previously
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held by Xxxxxx Xxxxxx; provided, that such transferee may exercise these rights
only to the extent that and so long as such transferee owns or has the right to
acquire more than 50% of the then outstanding Common Stock.
ARTICLE IV
CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST
4.1. General.
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The provisions of this Article IV are set forth to regulate
and define the conduct of certain affairs each party and their respective
officers and directors, and the powers, rights, duties and liabilities of each
party and their respective directors and shareholders in connection therewith.
4.2. Business Activities.
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(a) Xxxxxx Xxxxxx shall have no duty to refrain from: (i)
engaging in the same or similar activities or lines of business as Kraft; (ii)
doing business with any customer of Kraft; and (iii) employing or engaging any
officer or employee of Kraft, and no officer or director thereof (except as
provided in Section 4.3) shall be liable to Kraft or its shareholders for breach
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of any fiduciary duty by reason of any such activities of Xxxxxx Xxxxxx.
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(b) Kraft shall have no duty to refrain from: (i) engaging in
the same or similar activities or lines of business as Xxxxxx Xxxxxx; (ii) doing
business with any customer of Xxxxxx Xxxxxx; and (iii) employing or engaging any
officer or employee of Xxxxxx Xxxxxx, and no officer or director thereof (except
as provided in Section 4.3) shall be liable to Xxxxxx Xxxxxx or its shareholders
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for breach of any fiduciary duty by reason of any such activities of Kraft.
4.3. Corporate Opportunities.
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(a) In the event that a director or officer of Kraft who is
also a director or officer of Xxxxxx Xxxxxx acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for both Kraft and
Xxxxxx Xxxxxx, such director or officer of Kraft shall have fully satisfied and
fulfilled the fiduciary duty of such director or officer to Kraft and its
shareholders with respect to such corporate opportunity, if such director or
officer acts in a manner consistent with the following policy:
(i) If any officer or director of Kraft who also
serves as an officer or director of Xxxxxx Xxxxxx becomes aware of a potential
transaction related primarily to the food and beverage industry, other than
beer, that may represent a corporate opportunity for both Kraft and Xxxxxx
Xxxxxx, such officer or director has no duty to present that opportunity to
Xxxxxx Xxxxxx; and Xxxxx will have the sole right to pursue the transaction if
the Kraft Board so determines.
(ii) If any officer or director of Kraft who also
serves as an officer or director of Xxxxxx Xxxxxx becomes aware of any other
potential transaction that may represent a corporate opportunity for both Kraft
and Xxxxxx Xxxxxx, such officer or director will have a duty to present that
opportunity to Xxxxxx Xxxxxx; and Xxxxxx Xxxxxx will have the sole right to
pursue the transaction if the Xxxxxx Xxxxxx Board so determines.
(b) If any officer or director of Kraft who does not serve as
an officer or director of Xxxxxx Xxxxxx becomes aware of a potential transaction
that may represent a corporate opportunity for both Kraft and Xxxxxx Xxxxxx,
neither Kraft nor such officer or director has a duty to present that
opportunity to Xxxxxx Xxxxxx; and Xxxxx may pursue the transaction if the Kraft
Board so determines.
(c) If any officer or director of Xxxxxx Xxxxxx who does not
serve as an officer or director of Kraft becomes aware of a potential
transaction that may represent a corporate opportunity for both Xxxxxx Xxxxxx
and Xxxxx, neither Xxxxxx Xxxxxx nor such officer or director has a duty to
present that opportunity to Kraft; and Xxxxxx Xxxxxx may pursue the transaction
if the Xxxxxx Xxxxxx Board so determines.
4.4. Xxxxxx Xxxxxx Entities and Kraft Entities.
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For purposes of this Article IV only, the term "Kraft" shall
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include any Kraft Entity and the term "Xxxxxx Xxxxxx" shall include any Xxxxxx
Xxxxxx Entity.
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4.5. Notice.
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Any Person purchasing or otherwise acquiring any interest in
shares of the Common Stock shall be deemed to have notice of and to have
consented to the provisions of this Article IV.
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ARTICLE V
INDEMNIFICATION
5.1. Kraft Indemnification of the Xxxxxx Xxxxxx Entities for Certain
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Liabilities.
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(a) Subject to Section 5.3, on and after the Initial Public
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Offering Date, Kraft shall indemnify and hold harmless each Xxxxxx Xxxxxx Entity
and its respective directors, officers and employees (each, a "Xxxxxx Xxxxxx
Indemnitee") from and against any and all Liabilities incurred or suffered by
any Xxxxxx Xxxxxx Indemnitee arising out of (i) any and all Kraft Entity
Liabilities and (ii) the breach by any Kraft Entity of any obligation under this
Agreement.
(b) Subject to Section 5.3, Kraft shall indemnify and hold
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harmless each Xxxxxx Xxxxxx Indemnitee from and against any and all Liabilities
caused by any untrue statement or alleged untrue statement of a material fact
contained in any document filed with the SEC by any Xxxxxx Xxxxxx Entity
pursuant to the Securities Act or the Securities Exchange Act, or caused by any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
those Liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information that is either furnished to
any Xxxxxx Xxxxxx Indemnitee by any Kraft Entity or incorporated by reference by
any Xxxxxx Xxxxxx Indemnitee from any filings made by any Kraft Entity with the
SEC under the Securities Act or the Securities Exchange Act, if that statement
or omission was made or occurred after the Initial Public Offering Date.
5.2. Xxxxxx Xxxxxx Indemnification of Kraft Entities.
-----------------------------------------------
(a) Subject to Section 5.3, on and after the Initial Public
-----------
Offering Date, Xxxxxx Xxxxxx shall indemnify and hold harmless each Kraft Entity
and their respective directors, officers and employees (each, a "Kraft
Indemnitee") from and against any and all Liabilities incurred or suffered by
any Kraft Indemnitee arising out of (i) any and all Xxxxxx Xxxxxx Entity
Liabilities and (ii) the breach by any Xxxxxx Xxxxxx Entity of any obligation
under this Agreement.
(b) Subject to Section 5.3, Xxxxxx Xxxxxx shall indemnify and
-----------
hold harmless each Kraft Indemnitee from and against any and all Liabilities
caused by any untrue statement or alleged untrue statement of a material fact
contained in any document filed with the SEC by any Kraft Entity pursuant to the
Securities Act or the Securities Exchange Act, or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
those Liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information that is
11
either furnished to any Kraft Indemnitee by any Xxxxxx Xxxxxx Entity or
incorporated by reference by any Kraft Indemnitee from any filings made by any
Xxxxxx Xxxxxx Entity with the SEC under the Securities Act or the Securities
Exchange Act, if that statement or omission was made or occurred after the
Initial Public Offering Date.
5.3. Third-Party Rights; Tax Benefits.
--------------------------------
Any indemnification pursuant to Section 5.1 or Section 5.2
----------- ------- ---
shall be paid net of any tax benefit to the Indemnified Party attributable to
the relevant payment. It is expressly agreed that no insurer or any other third
party shall be (i) entitled to a benefit (as a third-party beneficiary or
otherwise) that it would not be entitled to receive in the absence of Section
-------
5.1 or Section 5.2, (ii) relieved of the responsibility to pay any claims to
--- -----------
which it is obligated or (iii) entitled to any subrogation rights with respect
to any obligation under Section 5.1 or Section 5.2.
----------- ------------
5.4. Notice and Payment of Claims.
----------------------------
If any Xxxxxx Xxxxxx Indemnitee or Kraft Indemnitee (the
"Indemnified Party") determines that it is or may be entitled to indemnification
by any party (the "Indemnifying Party") under Article V of this Agreement (other
---------
than in connection with any Action subject to Section 5.5), the Indemnified
-----------
Party shall deliver to the Indemnifying Party a written notice specifying, to
the extent reasonably practicable, the basis for its claim for indemnification
and the amount for which the Indemnified Party reasonably believes it is
entitled to be indemnified. Within 30 days after receipt of that notice, the
Indemnifying Party shall pay the Indemnified Party that amount in cash or other
immediately available funds unless the Indemnifying Party objects to the claim
for indemnification or the amount of the claim. If the Indemnifying Party does
not give the Indemnified Party written notice objecting to that indemnity claim
and setting forth the grounds for the objection(s) within that 30-day period,
the Indemnifying Party shall be deemed to have acknowledged its liability for
that claim and the Indemnified Party may exercise any and all of its rights
under applicable law to collect that amount. If there is a timely objection by
the Indemnifying Party, the Indemnifying Party shall pay to the Indemnified
Party in cash the amount, if any, that is Finally Determined to be required to
be paid by the Indemnifying Party in respect of that indemnity claim within 15
days after that indemnity claim has been so Finally Determined.
5.5. Notice and Defense of Third-Party Claims.
----------------------------------------
Promptly after the earlier of receipt of (i) notice that a
third party has commenced an Action against or otherwise involving any
Indemnified Party or (ii) information from a third party alleging the existence
of a claim against an Indemnified Party, in either case, with respect to which
indemnification may be sought under Article V of this Agreement (a "Third-Party
---------
Claim"), the Indemnified Party shall give the Indemnifying Party written notice
of the Third-Party Claim. The failure of the Indemnified Party to give notice as
provided in this Section 5.5 shall not relieve the Indemnifying Party of its
-----------
obligations under this Agreement, except to the extent that the Indemnifying
Party is prejudiced by the failure to give notice. Within 30 days after receipt
of that notice, the Indemnifying Party may (i) at its option, elect to assume
and control the defense of that Third-Party Claim at its sole cost and expense
by giving written notice to that
12
effect to the Indemnified Party, or (ii) object to the claim for indemnification
set forth in the notice delivered by the Indemnified Party pursuant to the first
sentence of this Section 5.5; provided, that if the Indemnifying Party does not
-----------
within that 30-day period give the Indemnified Party written notice objecting to
that indemnification claim and setting forth the grounds for the objection(s),
the Indemnifying Party shall be deemed to have acknowledged its liability for
that indemnification claim. If the Indemnifying Party has acknowledged liability
and elected to assume the defense of a Third-Party Claim, (x) the defense shall
be conducted by counsel retained by the Indemnifying Party and reasonably
satisfactory to the Indemnified Party, provided that the Indemnified Party shall
have the right to participate in those proceedings and to be represented by
counsel of its own choosing at the Indemnified Party's sole cost and expense;
and (y) the Indemnifying Party may settle or compromise the Third-Party Claim
without the prior written consent of the Indemnified Party so long as any
settlement or compromise of the Third-Party Claim includes an unconditional
release of the Indemnified Party from all claims that are the subject of that
Third-Party Claim; provided, that the Indemnifying Party may not agree to any
such settlement or compromise pursuant to which any remedy or relief, other than
monetary damages for which the Indemnifying Party shall be responsible under
this Agreement, shall be applied to or against the Indemnified Party, without
the prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld. If the Indemnifying Party does not assume the defense of
a Third-Party Claim for which it has acknowledged liability for indemnification
hereunder, the Indemnified Party will act in good faith with respect to that
Third-Party Claim and may require the Indemnifying Party to reimburse it on a
current basis for its reasonable expenses of investigation, reasonable
attorney's fees and reasonable out-of-pocket expenses incurred in investigating
and defending against that Third-Party Claim and the Indemnifying Party shall be
bound by the result obtained with respect to that claim by the Indemnified
Party; provided, that the Indemnifying Party shall not be liable for any
settlement or compromise of any Third-Party Claim effected without its consent,
which consent shall not be unreasonably withheld. The Indemnifying Party shall
pay to the Indemnified Party in cash the amount, if any, for which the
Indemnified Party is entitled to be indemnified under this Agreement within 15
days after that Third-Party Claim has been Finally Determined.
5.6. Contribution.
------------
If for any reason the indemnification provided for in
Section 5.1 or 5.2 is unavailable to any Indemnified Party, or insufficient to
----------- ---
hold it harmless, then the Indemnifying Party shall contribute to the amount
paid or payable by that Indemnified Party as a result of those Liabilities in
that proportion as is appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, in connection with those statements or omissions, which relative fault
shall be determined by reference to the Xxxxxx Xxxxxx Entity or Kraft Entity to
which those actions, conduct, statements or omissions are primarily related, as
well as any other relevant equitable considerations.
13
ARTICLE VI
OPTION
6.1. Option.
------
(a) Kraft hereby grants to Xxxxxx Xxxxxx, on the terms and
conditions set forth herein, a continuing right (the "Option") to purchase from
Kraft, at the times set forth herein, such number of shares of Class A Common
Stock as is necessary to allow the Xxxxxx Xxxxxx Entities to maintain the
Ownership Percentage. The Option shall be assignable, in whole or in part and
from time to time, by Xxxxxx Xxxxxx to any Xxxxxx Xxxxxx Entity. The exercise
price for each share of Class A Common Stock purchased pursuant to an exercise
of the Option shall be: (i) in the event of the issuance by Kraft of Class A
Common Stock in exchange for cash consideration, the per share price paid to
Kraft for shares of the Class A Common Stock issued by Kraft in the related
Issuance Event; and (ii) in the event of: (A) the issuance by Kraft of Common
Stock other than Class A Common Stock or (B) the issuance by Kraft of Class A
Common Stock for consideration other than cash, the per share Market Price of
Class A Common Stock at the Issuance Event Date of such issuance.
(b) The provisions of Section 6.1(a) hereof notwithstanding,
--------------
the Option granted pursuant to Section 6.1(a) shall not apply and shall not be
--------------
exercisable in connection with the issuance by Kraft of any shares of Common
Stock in connection with the Initial Public Offering, including the full
exercise of all underwriters' over-allotment options granted in connection
therewith or pursuant to any stock option or other executive or employee benefit
or compensation plan maintained by Kraft.
6.2. Notice.
------
At least 20 business days prior to the issuance of any shares
of Common Stock (other than in connection with the Initial Public Offering,
including the full exercise of all underwriters' over-allotment options granted
in connection therewith, and other than issuances of Common Stock to any Xxxxxx
Xxxxxx Entity) or the first date on which any event could occur that, in the
absence of a full or partial exercise of the Option, would result in a reduction
in the Ownership Percentage, Kraft will notify Xxxxxx Xxxxxx in writing (an
"Option Notice") of any plans it has to issue such shares or the date on which
such event could first occur. Each Option Notice must specify the date on which
Kraft intends to issue such additional shares of Common Stock or on which such
event could first occur (such issuance or event being referred to herein as an
"Issuance Event" and the date of such issuance or event as an "Issuance Event
Date"), the number of shares Kraft intends to issue or may issue and the other
terms and conditions of such Issuance Event.
6.3. Option Exercise and Payment.
---------------------------
The Option may be exercised by Xxxxxx Xxxxxx (or any Xxxxxx
Xxxxxx Entity to which all or any part of the Option has been assigned) for a
number of shares equal to or less than the number of shares that are necessary
for the Xxxxxx Xxxxxx Entities to maintain, in the aggregate, the then-current
Ownership Percentage. The Option may be exercised at any time after receipt of
an applicable Option Notice and prior to the applicable Issuance Event Date by
the delivery to Kraft of a written notice to such effect specifying (i) the
number of shares of Class
14
A Common Stock to be purchased by Xxxxxx Xxxxxx, or any of the Xxxxxx Xxxxxx
Entities and (ii) a determination of the exercise price for such shares. Upon
any such exercise of the Option, Kraft will, prior to the applicable Issuance
Event Date, deliver to Xxxxxx Xxxxxx (or any Xxxxxx Xxxxxx Entity designated by
Xxxxxx Xxxxxx), against payment therefor, certificates (issued in the name of
Xxxxxx Xxxxxx or its permitted assignee hereunder or as directed by Xxxxxx
Xxxxxx) representing the shares of Class A Common Stock being purchased upon
such exercise. Payment for such shares shall be made by wire transfer or
intrabank transfer of immediately-available funds to such account as shall be
specified by Kraft, for the full purchase price for such shares.
6.4. Effect of Failure to Exercise.
-----------------------------
Except as provided in Section 6.5, any failure by Xxxxxx
-----------
Xxxxxx to exercise the Option, or any exercise for less than all shares
purchasable under the Option, in connection with any particular Issuance Event
shall not affect Xxxxxx Xxxxxx' right to exercise the Option in connection with
any subsequent Issuance Event; provided, however, that the Ownership Percentage
following such Issuance Event in connection with which Xxxxxx Xxxxxx so failed
to exercise such Option in full or in part shall be recalculated as set forth in
Section 1.1.
-----------
6.5. Termination of Option.
---------------------
The Option, or any part thereof assigned to any Xxxxxx Xxxxxx
Entity other than Xxxxxx Xxxxxx, shall terminate in the event that the Person to
whom the Option, or such part thereof, has been transferred, ceases to be a
Xxxxxx Xxxxxx Entity for any reason whatsoever.
ARTICLE VII
REGISTRATION RIGHTS
Xxxxxx Xxxxxx and Xxxxx shall enter into the Registration
Rights Agreement in the form as set forth on the attached Appendix I, which will
----------
govern the registration rights of Xxxxxx Xxxxxx and certain other holders of the
Common Stock.
ARTICLE VIII
TERM
This Agreement shall remain in effect until the Ownership
Percentage is less than 50%; provided, however, that: (i) the provisions of
Section 3.4 and Article VII shall remain in effect until terminated in
----------- -----------
accordance with their terms; and (ii) the provisions of Article V shall survive
any termination of this Agreement. ---------
ARTICLE IX
MISCELLANEOUS
9.1. Limitation of Liability.
-----------------------
Neither Xxxxxx Xxxxxx nor Xxxxx shall be liable to the other
for any special, indirect, incidental or consequential damages of the other
arising in connection with this Agreement.
15
9.2. Subsidiaries.
------------
Xxxxxx Xxxxxx agrees and acknowledges that Xxxxxx Xxxxxx shall
be responsible for the performance by each Xxxxxx Xxxxxx Entity of the
obligations hereunder applicable to such Xxxxxx Xxxxxx Entity. Kraft agrees and
acknowledges that Kraft shall be responsible for the performance by each Kraft
Entity of the obligations hereunder applicable to such Kraft Entity.
9.3. Amendments.
----------
This Agreement may not be amended or terminated orally, but
only by a writing duly executed by or on behalf of the parties hereto. Subject
to the approval requirements provided for in Section 3.3, any such amendment
-----------
shall be validly and sufficiently authorized for purposes of this Agreement if
it is signed on behalf of Xxxxxx Xxxxxx and Xxxxx by any of their respective
presidents or vice presidents.
9.4. Severability.
------------
If any provision of this Agreement or the application of any
such provision to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid, illegal or unenforceable to any extent,
the remainder of this Agreement or such provision of the application of such
provision to such party or circumstances, other than those to which it is so
determined to be invalid, illegal or unenforceable, shall remain in full force
and effect to the fullest extent permitted by law and shall not be affected
thereby, unless such a construction would be unreasonable.
9.5. Notices.
-------
All notices and other communications required or permitted
hereunder shall be in writing, shall be deemed duly given upon actual receipt,
and shall be delivered (a) in person, (b) by registered or certified mail,
postage prepaid, return receipt requested or (c) by facsimile or other generally
accepted means of electronic transmission (provided that a copy of any notice
delivered pursuant to this clause (c) shall also be sent pursuant to clause
(b)), addressed as follows:
(a) if to Kraft, to:
Kraft Foods Inc.
Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
With a copy to: Corporate Secretary
Telecopy No.:
16
(b) if to Xxxxxx Xxxxxx, to:
Xxxxxx Xxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: General Counsel
With a copy to: Corporate Secretary
Telecopy No.:
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
9.6. Further Assurances.
------------------
Xxxxxx Xxxxxx and Xxxxx shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such instruments
and take such other action as may be necessary or advisable to carry out their
obligations under this Agreement and under any exhibit, document or other
instrument delivered pursuant hereto.
9.7. Counterparts.
------------
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original instrument, but all of which together
shall constitute but one and the same agreement.
9.8. Governing Law.
-------------
This Agreement and the transactions contemplated hereby shall
be construed in accordance with, and governed by, the laws of the Commonwealth
of Virginia.
9.9. Entire Agreement.
----------------
This Agreement constitutes the entire understanding of the
parties hereto with respect to the subject matter hereof.
9.10. Successors.
----------
Except specifically provided in this Agreement, the parties
hereto may not assign any of their rights or obligations under this Agreement.
This Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and permitted assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
other person or entity any benefits, rights or remedies, including any
shareholder of any party hereto.
17
9.11. Specific Performance.
--------------------
The parties hereto acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, it is agreed that they shall be entitled to an injunction
or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any other
remedy to which they may be entitled at law or equity.
18
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
XXXXXX XXXXXX COMPANIES INC.
By: ______________________________
Name:
Title:
KRAFT FOODS INC.
By: ______________________________
Name:
Title:
19
