Exhibit 10b1
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MASTER TRANSACTION AGREEMENT
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AMONG
V&S VIN & SPRIT AB,
THE ABSOLUT SPIRITS COMPANY, INCORPORATED
XXX XXXX BRANDS WORLDWIDE, INC.,
XXX XXXX BRANDS CO.
AND
FORTUNE BRANDS, INC.
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March 20, 2001
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THIS MASTER TRANSACTION AGREEMENT dated as of March 20, 2001, by and
among V&S Vin & Sprit AB, an AKTIEBOLAG organized and existing under the laws of
Sweden ("V&S"), The Absolut Spirits Company, Incorporated, a corporation
organized and existing under the laws of the State of Delaware, and a
wholly-owned subsidiary of V&S ("ASCI"), Xxx Xxxx Brands Worldwide, Inc., a
corporation organized and existing under the laws of the State of Delaware
("JBBW" and, together with its Subsidiaries, "BEAM"), Xxx Xxxx Brands Co., a
corporation organized and existing under the laws of the State of Delaware, and
a wholly-owned subsidiary of JBBW ("JBBCo.") and Fortune Brands, Inc., a
corporation organized and existing under the laws of the State of Delaware, and
the ultimate parent company of JBBW and JBBCo. ("FORTUNE") (individually, a
"PARTY," and collectively, the "PARTIES").
W I T N E S S E T H
WHEREAS, V&S is in the business of producing vodka in Sweden under the
brand names ABSOLUT COUNTRY OF SWEDEN VODKA, ABSOLUT COUNTRY OF SWEDEN PEPPAR,
ABSOLUT COUNTRY OF SWEDEN CITRON, ABSOLUT COUNTRY OF SWEDEN XXXXXX, ABSOLUT
COUNTRY OF SWEDEN MANDRIN, as well as a number of additional wines and spirits
(directly or through its subsidiaries);
WHEREAS, the V&S Products currently are principally distributed in the
Territory (as defined herein) and throughout the rest of the world ("ROW") by
The Seagram Company Ltd. and its affiliates ("SEAGRAM") and other distributors;
WHEREAS, Beam is in the business of producing and/or distributing
wines, spirits and cordials, including Xxx Xxxx bourbon, which currently are
distributed in the Territory by Beam and throughout the ROW principally by
Maxxium Worldwide B.V., a Dutch limited liability company in which JBBW
currently holds a membership interest ("MAXXIUM");
WHEREAS, JBBW and JBBCo. have established Future Brands LLC, a
Delaware limited liability company (the "DISTRIBUTION NETWORK VEHICLE" or
"DNV"), for the purpose of segregating Beam's distribution operations and assets
within the Territory as a means of facilitating possible alliances with respect
to the distribution of wine and spirits products within the Territory;
WHEREAS, V&S has formed ASCI with a view to ASCI acting as importer of
record and distributor of the V&S Products in the Territory following the
conclusion of V&S's arrangements with Seagram;
WHEREAS, ASCI has commenced taking the necessary steps to establish
operations as an importer and distributor of alcoholic beverages within the
United States;
WHEREAS, ASCI would like to obtain, and Beam would like to provide,
access to Beam's existing distribution network to facilitate ASCI's role as
distributor of the V&S Products in the Territory on a cost-efficient and
market-effective basis through the formation of an alliance with Beam;
WHEREAS, such access will be provided by ASCI acquiring an interest in
the Distribution Network Vehicle and the Parties entering into certain
agreements as contemplated hereby;
WHEREAS, on or following the closing of the foregoing transactions
(the "US TRANSACTIONS"), V&S may purchase an equity interest in JBBW;
WHEREAS, simultaneously with, and as a condition to, the closing of
the US Transactions, V&S will purchase a 25% membership interest in Maxxium and
contract with Maxxium for the distribution of the V&S Products (subject to
certain exceptions) throughout the ROW (the "MAXXIUM TRANSACTIONS");
WHEREAS, until ASCI has obtained all necessary licenses and approvals
and otherwise accomplished all steps necessary to commence purchasing the V&S
Products for resale by ASCI in the Territory and, pending such development and
the closing of the transactions described above, Beam has agreed to act as
distributor and importer of record in the Territory in respect of the V&S
Products on an interim basis pursuant to the Interim Distribution Agreement; and
WHEREAS, the purpose of this Agreement is to set forth the steps the
Parties have agreed upon to facilitate the foregoing.
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"ACTION" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"ADMINISTRATIVE SERVICES AGREEMENT" means the Administrative Services
Agreement, dated the date hereof, between DNV and JBBCo.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such specified Person.
"AGENCY BRANDS" means wine, spirit and other alcoholic beverage
product brands owned by Persons other than Beam and V&S and their respective
Affiliates.
"AGREEMENT" means this Master Transaction Agreement, as executed by
the Parties hereto and as amended from time to time, together with all exhibits
and schedules hereto.
"AMP EXPENSES" means advertising, marketing and promotional expenses.
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"BASIC AGREEMENTS" means (i) this Agreement, (ii) the Interim
Distribution Agreement, (iii) the JBBCo. Distribution Services Agreement, (iv)
the ASCI Distribution Services Agreement, (v) the Administrative Services
Agreement, (vi) the DNV LLC Agreement, (vii) the DNV Purchase Agreement, (viii)
the JBBW Subscription Agreement, (ix) the JBBW Shareholders Agreement, (x) the
Supplemental Agreement, (xi) the Occupancy Agreement, (xii) the Employee Matters
Agreement, (xiii) the Tax Sharing Agreement, (xiv) the JBBW Series A-1
Certificate of Designations, (xv) the terms of the Series A Common Stock
attached as Exhibit B to the JBBW Subscription Agreement, (xvi) the Marketing
Services Agreement and (xvii) any other agreement executed contemporaneously
herewith that specifically refers to itself as a "Basic Agreement".
"BEAM DISCLOSURE SCHEDULE" has the meaning specified therefor in
Section 4.01.
"BEAM INDEMNIFIED PARTIES" has the meaning specified therefor in
Section 7.02(a).
"CLOSING" has the meaning specified therefor in Section 3.01(a).
"CLOSING DATE" has the meaning specified therefor in Section
3.01(a).
"CODE" means the Internal Revenue Code of 1986, as amended. All
citations to provisions of the Code, or to the Treasury Regulations promulgated
thereunder, shall include any amendments thereto and any substitute or successor
provisions thereto.
"COMMON STOCK" means the common stock, par value $1.00 per share, of
JBBW and shall include the Series A Common Stock.
"CONTROL" means, with respect to any Person, the power to control,
directly or indirectly, the direction of the management and policies of a
Person, whether such power is effected through ownership of shares or other
securities, by contract, by proxy or otherwise; for the avoidance of doubt, the
ownership of more than fifty percent (50%) of such Person by another Person, or
the ability of another Person to appoint or elect more than fifty percent (50%)
of the board of directors or other equivalent governing board of such Person
shall constitute an example of Control of such Person.
"CONTROLLED AFFILIATE" means an Affiliate over which a Person
exercises Control; for the avoidance of doubt, a Controlled Affiliate includes a
Person in which another Person owns a majority of the voting equity power of
such Person.
"DISPUTE" has the meaning specified therefor in Section 10.01.
"DISTRIBUTION NETWORK VEHICLE" or "DNV" means that certain limited
liability company formed by JBBW and JBBCo. on December 22, 2000 under the laws
of the State of Delaware having its principal place of business in Deerfield,
Illinois.
"EMPLOYEE MATTERS AGREEMENT" means the Employee Matters Agreement,
dated the date hereof, among the parties thereto.
"ENCUMBRANCE" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, easement, adverse
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claim, preferential arrangement or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt of income or
other exercise of any attributes of ownership.
"ENVIRONMENTAL LAWS" means any applicable federal, state, local,
municipal or foreign, international, provincial, multinational, supranational
law, common law, treaty, statute, constitution, code, ordinance, doctrine,
rules, regulations, order, decree, judgment, injunction, permit or license
relating to public and worker health and safety or to the indoor or outdoor
environment, natural resources or living organisms or activities or conditions
relating thereto, including, without limitation, those relating to the
generation, handling, storage, disposal, transportation, or release or
threatened release of Hazardous Materials.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FORTUNE DISCLOSURE SCHEDULE" has the meaning specified therefor in
Section 4.03.
"FORTUNE SEC REPORTS" means the Annual Report on Form 10-K for Fortune
for the year ended December 31, 2000 and any filings made by Fortune subsequent
thereto under the Exchange Act.
"GOVERNMENTAL AUTHORITY" means any international, supranational,
national, provincial, state, municipal or local government, governmental,
regulatory or administrative authority, agency or commission or any court,
tribunal, or judicial or arbitral body.
"GOVERNMENTAL ORDER" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"HAZARDOUS MATERIALS" means any waste or other substance that is
listed, defined, designated, or classified as, or otherwise determined to be,
hazardous, radioactive, or toxic or a pollutant or a contaminant under or
pursuant to any Environmental Law, including any admixture or solution thereof,
and specifically including petroleum and all derivatives thereof or synthetic
substitutes therefor and asbestos or asbestos-containing materials.
"INDEMNIFIED PARTY" has the meaning specified therefor in Section
7.03.
"INDEMNIFYING PARTY" has the meaning specified therefor in Section
7.03.
"INTELLECTUAL PROPERTY" means collectively: (x) all U.S. and non-U.S.
(i) trade names, trade dress, trademarks, service marks, assumed names, business
names and logos, internet domain names and URLs and all registrations and
applications therefor, (ii) copyrights (including, without limitation, those in
computer software and databases), and all registrations and applications
therefore, (iii) utility and design patents, registered designs and invention
disclosures, and all grants, registrations, and applications therefor; and (y)
(i) all trade secrets and, to the extent confidential, all inventions,
processes, formulae, know-how, concepts, ideas, research and development,
designs, business plans, strategies, marketing and other information and
customer lists, and (ii) all rights of publicity.
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"JBBCo. DISTRIBUTION SERVICES AGREEMENT" means the Distribution
Services Agreement, dated the date hereof, between JBBCo. and DNV.
"JBBW SERIES A CERTIFICATE OF DESIGNATIONS" means the JBBW Series A-1
Certificate of Designations together with any future certificates of
designations governing the rights and preferences of any subseries of Series A
Preferred Stock other than Series A-1 Preferred Stock.
"JBBW SERIES A-1 CERTIFICATE OF DESIGNATIONS" means the certificate of
designations in respect of the Series A-1 Preferred Stock, setting forth the
rights, privileges and obligations of the holders of the Series A-1 Preferred
Stock, substantially in the form of Exhibit A hereto.
"JBBW SHAREHOLDERS AGREEMENT" means the Shareholders Agreement
between Fortune and V&S relating to the governance of JBBW and the rights of its
shareholders, in all substantive respects in the form of Exhibit B hereto.
"JBBW SUBSCRIPTION AGREEMENT" means the Stock Purchase Agreement,
dated the date hereof, between Fortune, JBBW and V&S in respect of, among other
things, the purchase by V&S of 111 shares of Series A-1 Preferred Stock.
"KNOWLEDGE" means the actual (and not any imputed) knowledge of the
executive officers of JBBW, JBBCo., V&S, or ASCI, as the case may be.
"LAW" means any international, supranational, national, state,
provincial, municipal, federal or local statute, law (including common law),
treaty, ordinance, regulation, rule, code, order, judgment or decree and any
Environmental Law.
"LIABILITY" means any liability or obligation of any kind, character
or description, whether known or unknown, accrued, absolute, contingent or
otherwise and whether arising in strict liability, negligence or otherwise.
"LOSSES" has the meaning specified therefor in Section 7.01(a).
"MATERIAL ADVERSE CHANGE" means any change or circumstance affecting a
relevant Person resulting in a Material Adverse Effect on such Person.
"MATERIAL ADVERSE EFFECT" means any effect on a Person that,
individually or in the aggregate with any other circumstances, changes in, or
effects on, such Person: (a) is, or is reasonably expected to be, materially
adverse to the business, operations, or financial condition of such Person taken
as a whole, (b) materially and adversely affects the ability of such Person to
conduct its business substantially in the manner in which it is currently
operated, or (c) would materially and adversely affect the ability of such
Person to consummate the transactions contemplated by this Agreement and the
other Basic Agreements to which such Person is a party.
"MAXXIUM" has the meaning specified therefor in the Recitals.
"MAXXIUM TRANSACTIONS" has the meaning specified therefor in the
Recitals.
"OBLIGATIONS" has the meaning specified therefor in Section 6.12.
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"OCCUPANCY AGREEMENT" means the Occupancy Agreement, dated the date
hereof, between DNV and JBBCo.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chief
Financial Officer or other senior officer of the Person whose certificate is so
required.
"PERSON" means any individual, partnership, limited liability company,
firm, corporation, company, association, trust, joint venture, unincorporated
organization, government agency or any agency or political subdivision thereof
or other entity.
"ROW" has the meaning specified therefor in the Recitals.
"RULES" has the meaning specified therefor in Section 10.02.
"SEAGRAM" has the meaning specified therefor in the Recitals.
"SEC" means the United States Securities and Exchange Commission.
"SERIES A COMMON STOCK" means the Series A Common Stock, par value
$1.00 per share, of JBBW having the rights set forth on Exhibit B to the JBBW
Subscription Agreement.
"SERIES A PREFERRED STOCK" means the Series A-1 Preferred Stock of
JBBW together with any other subseries of Series A Preferred Stock issued under
one or more certificates of designations.
"SERIES A-1 PREFERRED STOCK" means the Series A Convertible Preferred
Stock, par value $1.00 per share, of JBBW issued under the JBBW Series A-1
Certificate of Designations.
"SUB-DISTRIBUTION AGREEMENT" has the meaning specified therefor in
Section 2.02(a)(v).
"SUBSIDIARY" means, with respect to any Person, any other Person
Controlled by such Person excluding DNV.
"SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement, in all
substantive respects, in the form approved by the Parties hereto on the date
hereof.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement between
Fortune and JBBW, in all substantive respects, in the form of Exhibit C to the
JBBW Subscription Agreement.
"TAXES" (or "TAX" as the context may require) means all federal,
state, county, local, foreign and other taxes, levies, imposts, fees and other
charges, including, without limitation, gross and net income taxes, gross
receipts, payroll, withholding, license, unemployment, premium and excise taxes,
real and personal property taxes, capital, net worth and franchise taxes, value
added, severance, sales, use, transfer and registration taxes, alternative and
add-on minimum taxes, estimated taxes and any and all other taxes and similar
governmental charges of any kind whatsoever, including interest, penalties and
additions to tax with respect thereto, whether disputed or not.
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"TERM" has the meaning specified therefor in Section 8.01.
"TERRITORY" means the United States of America, its territories and
possessions (other than Puerto Rico), and United States military bases (wherever
the same may be located), whether tax-paid or duty free, including, without
limitation, duty-free shops, and flights, cruises or trains originating in the
United States of America, ship chandlers, embassies, consulates, and all other
clients who obtain their supplies in the United States of America.
"UNITED STATES OF AMERICA" means the 00 xxxxxx xx xxx Xxxxxx Xxxxxx xx
Xxxxxxx and the District of Columbia.
"US DOLLARS" and "US$" means the lawful currency of the United States
of America.
"US TRANSACTIONS" has the meaning specified therefor in the Recitals.
"V&S DISCLOSURE SCHEDULE" has the meaning specified therefor in
Article V.
"V&S DISTRIBUTION AGREEMENT" has the meaning specified
therefor in Section 2.02(a)(iv).
"V&S INDEMNIFIED PARTIES" has the meaning specified therefor in
Section 7.01(a).
Notwithstanding the foregoing, capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Supplemental Agreement.
ARTICLE II
PURPOSE AND SCOPE OF AGREEMENT
Section 2.01. ACQUISITION OF INTEREST IN DNV.
(a) PURCHASE OF MEMBERSHIP INTEREST IN DNV BY ASCI. Simultaneous
herewith, ASCI, JBBW and JBBCo. shall enter into the DNV Purchase Agreement
under the terms of which, upon the fulfillment of the conditions precedent
contained therein, at the Closing, ASCI shall acquire a 49% membership interest
in DNV from JBBCo. for an aggregate purchase price of US$270 million, payable in
full at the Closing. Contemporaneously therewith at the Closing, JBBW, JBBCo.
and ASCI shall execute and deliver the DNV LLC Agreement. The terms of such
acquisition shall be as set forth in the DNV Purchase Agreement, and the
respective rights of the members of DNV shall be as set forth in the DNV LLC
Agreement.
(b) SCOPE AND LIMITATION. DNV shall operate as a distribution company
and shall engage only in (i) the provision of services in respect of the
distribution of Beam Products and V&S Products, (ii) the distribution of the
Existing Agency Brands and (iii) the distribution of such other Agency Brands as
shall be agreed by the members of DNV from time to time in accordance with the
Supplemental Agreement, it being understood that DNV
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may outsource to JBBCo. certain administrative functions in accordance with the
terms of the Administrative Services Agreement.
(c) ADMINISTRATIVE SERVICES AGREEMENT. Simultaneous herewith, DNV and
JBBCo. will enter into the Administrative Services Agreement and the Occupancy
Agreement, each of which shall become effective on the respective dates provided
therein.
Section 2.02. GENERAL DISTRIBUTION ARRANGEMENTS.
(a) DISTRIBUTION AGREEMENTS.
(i) Simultaneous herewith, V&S and JBBCo. shall enter into the
Interim Distribution Agreement, which shall become effective on the date
provided therein.
(ii) Intentionally Omitted.
(iii) Simultaneous herewith, JBBCo. and DNV shall enter into the
JBBCo. Distribution Services Agreement which shall become effective upon the
transfer of the DNV Assets to DNV in accordance therewith.
(iv) On or prior to the date of the actions referred to in
clause (iv) below, V&S and ASCI shall enter into a distribution agreement (the
"V&S DISTRIBUTION AGREEMENT") under the terms of which ASCI shall act as the
exclusive importer of record and distributor in the Territory for all of the V&S
Products.
(v) As soon as practicable following the Closing, and at such
time as ASCI has licenses and permits in a sufficient number of jurisdictions in
the Territory to warrant, in its judgment, such action: (A) ASCI shall enter
into the V&S Distribution Agreement pursuant to which it will act as importer of
record of V&S Products throughout the Territory; (B) ASCI shall enter into the
ASCI Distribution Services Agreement to secure DNV's services in respect of the
sale by ASCI of V&S Products into such jurisdictions as to which ASCI has
secured the required licenses and permits; (C) the Interim Distribution
Agreement shall be terminated and (D) if ASCI shall not yet have obtained the
required licenses and permits in respect of one or more jurisdictions in the
Territory, ASCI shall enter into a sub-distribution agreement (the
"SUB-DISTRIBUTION AGREEMENT") with JBBCo. pursuant to which JBBCo. shall act as
distributor of such products in such jurisdictions in the Territory pursuant to
the terms of the ASCI Sub-Distribution Agreement. ASCI and JBBCo. intend that
thereafter, as ASCI acquires required licenses and permits in remaining
jurisdictions enabling it to act itself as distributor therein, unless other
arrangements between ASCI and JBBCo. are necessary with respect to specific
jurisdictions, ASCI shall so act and the Sub-Distribution Agreement shall be
modified to exclude such jurisdictions from its scope. At such other date as V&S
may request, JBBCo. will enter into a distribution agreement with the producer
of Plymouth Brands Gin, substantially similar in form to the Interim
Distribution Agreement under which JBBCo. will perform the distributive
functions. Such agreement will terminate on the date of termination of the
Interim Distribution Agreement.
(b) WHOLESALERS. Pending the Closing, JBBCo. shall continue in its
contracts with wholesalers in respect of the sale of the Beam Products. As of
the Closing Date, ASCI shall have designated all of its wholesalers, and may
have entered into contracts with certain of them, for the distribution of the
V&S Products (anticipated generally to be the same as the wholesalers handling
the V&S Products prior to the date hereof). In markets
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within the Territory in which ASCI and Beam do not share a common wholesaler,
Beam and ASCI shall have jointly determined as of the Closing through good faith
discussions whether to use (i) Beam's wholesaler, (ii) the wholesaler previously
handling V&S Products or (iii) each its own wholesaler; PROVIDED, that in the
event the Parties are unable to agree on a wholesaler(s) with respect to a
particular market(s), each Party shall then determine which wholesaler(s) to use
with respect to its own products.
(c) AMP EXPENSES. The Parties agree that (1) from the effective date
of the JBBCo. Distribution Services Agreement, JBBCo. shall be responsible for
its own AMP Expenses in support of the Beam Products, (2) from the effective
date of the Interim Distribution Agreement until the effective date of the ASCI
Distribution Services Agreement, JBBCo. shall be responsible for the AMP
Expenses in support of the V&S Products and JBBCo. will subcontract AMP services
in support of the V&S Products to ASCI pursuant to a marketing services
agreement to be negotiated in good faith and entered into by such parties
effective as of the effective date of the Interim Distribution Agreement; and
(3) from the effective date of the ASCI Distribution Services Agreement, ASCI
shall be responsible for its own AMP Expenses in support of the V&S Products.
Each of Beam and ASCI shall reimburse DNV for any approved AMP Expenses incurred
by DNV on such party's behalf, respectively; PROVIDED, HOWEVER, that DNV shall
be responsible for the costs of field sales marketing execution and similar
expenses, and such other expenses as are approved by the DNV Board by unanimous
vote. V&S, ASCI and Beam shall be free to make such AMP expenditures, in respect
of global brand imaging and otherwise, in support of their respective products
as they shall deem appropriate.
(d) EXISTING AGENCY BRANDS. Beam will use commercially reasonable
efforts to assign and transfer or cause to be assigned and transferred, as of
the Closing Date, its existing distribution agreements in respect of Existing
Agency Brands to DNV, provided that, any such distribution agreements not
assigned to DNV on or as of the Closing Date shall be assigned and transferred
in accordance with and subject to Section 2.01(c)(iii) of the Supplemental
Agreement.
Section 2.03. MANAGEMENT AND OPERATIONS.
(a) BOARD OF MANAGERS. The Parties agree that, subject to the
specific provisions of the DNV LLC Agreement, for as long as Beam holds majority
ownership of DNV, the DNV Board of Managers shall consist of five (5) members,
three (3) of whom shall be designated by Beam and two (2) of whom shall be
designated by ASCI. The DNV Board's authority and key responsibilities shall be
as provided in the DNV LLC Agreement.
(b) INITIAL OFFICERS. The Parties shall cause their respective DNV
Board members to appoint Xxxxxxx X. Xxxxxxx as DNV's first Chief Executive
Officer and Xxxxx Xxxxxxxx as DNV's first Chief Financial Officer. Thereafter,
the appointment or removal of either the Chief Executive Officer or Chief
Financial Officer shall be by unanimous decision of the DNV Board and as
otherwise provided in the DNV LLC Agreement.
(c) SALES AND DISTRIBUTION MANAGEMENT TEAM AND EMPLOYEES.
(i) TRANSFER. JBBCo. and DNV shall take all actions necessary
for DNV to offer employment to, and shall use commercially reasonable
efforts for DNV to hire and become the sole employer of, all individuals
listed on Schedule 2.01 to the
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Employee Matters Agreement (the "TRANSFERRED EMPLOYEES") on a date within
30 days of the date hereof (the "TRANSFER DATE"). At any time during the
one year period beginning on the Transfer Date, JBBCo. shall not retain the
employment of, and neither Fortune nor any Affiliate shall hire, any
Transferred Employee who declines to accept the offer of employment by DNV
pursuant to this Section 2.03(c)(i). As of the Closing, JBBCo. will have
transferred the DNV Assets pursuant to documentation reasonably acceptable
to V&S, which documentation shall provide that Fortune shall be responsible
for any applicable transfer and similar taxes relating thereto. Subject to
Section 2.03(b) above and the provisions of the DNV LLC Agreement, the DNV
Board may replace the management team members as it deems appropriate. Each
of Fortune, JBBW and JBBCo. represent and warrant to V&S and ASCI that the
DNV Assets to be transferred to DNV will include all personnel (who accept
employment with DNV as provided in this Section 2.03(c)) and assets of Beam
that primarily perform or relate to the respective functions described in
the definition of DNV Assets, except for the Dual Personnel and Assets.
(ii) RESPONSIBILITIES OF SALES AND DISTRIBUTION MANAGEMENT TEAM
AND EMPLOYEES. The key responsibilities of the sales and distribution
management team and employees shall be as determined by the DNV Board from
time to time in accordance with the DNV LLC Agreement and shall include,
but not be limited to:
- account sales coverage, on-premise event management, field
promotion;
- working to co-ordinate field sales marketing efforts; and
- resolution of field issues through appropriate channels.
(d) MARKETING AND PROMOTION. The Parties agree that each of JBBCo.
and ASCI shall perform their respective marketing and promotion functions, to
the extent deemed desirable by the Parties, in coordination with DNV as provided
in each such Party's distribution services agreement with DNV and the DNV LLC
Agreement. Such functions shall include, but not be limited to:
- Brand strategy (including price strategy);
- Consumer media advertising;
- Retail and trade advertising;
- National point-of-sale;
- National on-premise programs;
- Regional marketing;
- National account marketing;
- Military marketing; and
- Research.
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Section 2.04. EQUITY INVESTMENT BY V&S IN JBBW. Simultaneous herewith,
Fortune, JBBW and V&S shall enter into the JBBW Subscription Agreement under the
terms of which at the Closing, V&S shall purchase 111 shares of Series A
Preferred Stock representing 10% of the voting power and value of the issued and
outstanding voting capital stock of JBBW on a fully diluted basis, and shall
receive a Purchase Right (as defined in the JBBW Subscription Agreement) to
purchase Series A Preferred Stock representing up to an additional 9.9% of the
voting power and value of the issued and outstanding voting capital stock of
JBBW on a fully diluted basis (subject to automatic conversion as provided in
the terms of the JBBW Series A-1 Certificate of Designations). The terms of such
purchase shall be as set forth in the JBBW Subscription Agreement, and the
respective rights of the stockholders of JBBW shall be as set forth in the JBBW
Shareholders Agreement.
Section 2.05. EMPLOYEE MATTERS AGREEMENT. Simultaneous herewith,
Fortune, JBBW, JBBCo., DNV and ASCI shall enter into the Employee Matters
Agreement.
ARTICLE III
CLOSING AND CONDITIONS TO CLOSING
Section 3.01. CLOSING.
(a) Upon the terms and subject to the conditions of this Agreement,
the Subscription Agreement and the DNV Purchase Agreement, the closing of the
transactions contemplated by this Agreement and the other Basic Agreements shall
take place at a closing (the "CLOSING") to be held at the offices of Xxxxx
Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the
fifth business day following the satisfaction or waiver of all conditions to the
obligations of the parties set forth in this Article III, or at such other time
and place as the parties may agree upon in writing (the day on which the Closing
takes place being the "CLOSING DATE").
(b) At the Closing, the following transactions will be completed:
(i) the concurrent closing of the Maxxium Transactions;
(ii) ASCI shall transfer US$270 million in immediately available
funds to a bank account designated by JBBCo. in exchange for a 49%
membership interest in DNV, and JBBCo. shall execute and deliver a
certificate acknowledging the transfer of such 49% membership interest to
ASCI, all in accordance with and pursuant to the DNV Purchase Agreement;
(iii) JBBW, JBBCo. and ASCI shall execute the DNV LLC Agreement,
which shall reflect ASCI's ownership of a 49% membership interest in DNV;
(iv) On the date hereof, JBBCo. and DNV shall have executed the
JBBCo. Distribution Services Agreement, which shall have become effective
as of the date of transfer of the DNV Assets from JBBCo to DNV and shall
not have been amended without ASCI's consent;
(v) On the date hereof, JBBCo. and DNV shall have executed the
Administrative Services Agreement and the Occupancy Agreement, each of
which
11
shall become effective on the date of the effectiveness of the JBBCo.
Distribution Services Agreement and neither of which shall have been
amended without ASCI's consent;
(vi) JBBW shall file the JBBW Series A-1 Certificate of
Designations with the Delaware Secretary of State and shall file an
amendment to its Certificate of Incorporation with the Delaware Secretary
of State creating the class of Series A Common Stock and increasing the
number of authorized shares of Common Stock in such respective numbers of
shares as shall be sufficient for the conversion of the Series A-1
Preferred Stock and Series A-1 Common Stock, respectively;
(vii) V&S shall transfer US$375 million in immediately available
funds to a bank account designated by JBBW in exchange for the Series A-1
Preferred Stock;
(viii) JBBW shall issue to V&S a certificate evidencing the
Series A-1 Preferred Stock;
(ix) V&S and Fortune shall execute and deliver the JBBW
Shareholders Agreement;
(x) Fortune and JBBW shall execute and deliver the Tax Sharing
Agreement; and
(xi) V&S, ASCI, JBBW and JBBCo. shall execute and deliver the
Supplemental Agreement.
Section 3.02. CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The
obligations of the Parties to complete the Closing shall be subject to the
fulfillment of the following conditions precedent:
(a) CONSENTS AND APPROVALS. Each of the Parties (including JBBCo. on
behalf of DNV) shall have received all respective consents, orders and approvals
of all Governmental Authorities, officials and third parties necessary to
consummate the transactions contemplated by this Agreement and the Basic
Agreements (including, without limitation, those set forth in Sections 4.01(b),
4.02(b) and 4.03(b) of the Beam Disclosure Schedule and Section 5(b) of the V&S
Disclosure Schedule, respectively, but excluding consents, orders and approvals
of Governmental Authorities and officials required (x) for ASCI to engage in the
implementation and distribution of wines and spirits into and in the Territory
and (y) for DNV to act as distributor for Existing Agency Brands), without any
required modifications or amendment of the terms hereof or thereof which are
material to any Party, and any waiting period under the HSR Act applicable to
the transactions contemplated hereby shall have expired or been terminated.
(b) NO ORDER. No Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any Law (whether temporary, preliminary or
permanent) which is then in effect and has the effect of making illegal or
otherwise preventing or prohibiting consummation of the transactions
contemplated by this Agreement or the Basic Agreements.
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(c) The fulfillment of the conditions precedent set forth in Article
VI of the DNV Purchase Agreement and Sections 4.15 through 4.18 of the JBBW
Subscription Agreement.
Section 3.03. CONDITIONS TO OBLIGATIONS OF V&S AND ASCI. The
obligation of V&S and ASCI to complete the Closing shall be subject to the
fulfillment of the following conditions precedent:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS.
(i) The representations and warranties of each of JBBW, JBBCo.
and Fortune in this Agreement and the other Basic Agreements shall have
been true and correct when made and shall be true and correct in all
material respects as of the Closing (except those representations and
warranties that are qualified by materiality or "Material Adverse Effect"
which shall be true and correct in all respects), with the same force and
effect as if made as of the Closing Date, other than such representations
and warranties as are made only as of another specific date, which shall be
true and correct in all material respects as of such date (except those
representations and warranties which are qualified by materiality or
"Material Adverse Effect" which shall be true and correct in all respects
as of such date);
(ii) The covenants and agreements of each of JBBW, JBBCo., and
Fortune contained in this Agreement and the other Basic Agreements to be
complied with on or before the Closing Date by JBBW, JBBCo., and/or Fortune
shall have been complied with in all material respects; and
(iii) Each of V&S and ASCI shall have received from each other
Party an Officer's Certificate with respect to the matters set forth in
clauses (i) and (ii) above.
(b) NO PROCEEDING OR LITIGATION. No Action shall have been commenced
(i) by or before any Governmental Authority that has had or would have a
Material Adverse Effect on JBBW, JBBCo. or DNV or (ii) seeking a temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction preventing the consummation of the
transactions contemplated by this Agreement and the other Basic Agreements.
(c) LEGAL OPINIONS. V&S and ASCI shall have received from counsel
reasonably satisfactory to V&S (it being agreed that Xxxxxxxxxx & Xxxxx LLP is
satisfactory to V&S) an opinion, addressing the matters set forth on Schedule
3.03(c) hereto, in form and substance reasonably satisfactory to V&S and its
counsel.
(d) MATERIAL ADVERSE CHANGE. Since the date of this Agreement, no
Material Adverse Change shall have occurred relating to
JBBW, JBBCo. or DNV.
(e) RESOLUTIONS. V&S shall have received a true and complete copy,
certified by the secretary or assistant-secretary of each of the other relevant
Parties, of the resolutions duly and validly adopted by the Board of Directors
or other relevant bodies of JBBW, JBBCo., DNV and Fortune evidencing their
authorization of the execution and delivery of this Agreement and the other
Basic Agreements to which they will become a Party and the consummation of the
transactions contemplated hereby and thereby.
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(f) TRANSFER OF DNV ASSETS. JBBCo. shall have transferred the DNV
Assets in compliance with the other provisions of this Agreement, to DNV free
and clear of all Encumbrances except for liens for Taxes not yet due and payable
and other imperfections of title, if any, as do not detract from the value, or
interfere with the present occupancy or use, of any of the DNV Assets or
otherwise materially impair the operation of JBBCo.'s or DNV's business.
(h) MAXXIUM TRANSACTIONS. The Parties shall have closed the Maxxium
Transactions.
(i) SERIES A-1 PREFERRED STOCK CERTIFICATES. On the Closing Date,
JBBW shall have delivered to V&S a certificate or certificates evidencing the
111 shares of Series A-1 Preferred Stock.
(j) CERTIFICATE OF DESIGNATIONS. JBBW shall have filed the JBBW
Series A-1 Certificate of Designations with the Delaware Secretary of State.
(k) JBBW SHAREHOLDERS AGREEMENT. Fortune shall have executed and
delivered the JBBW Shareholders Agreement.
(l) DNV MEMBERSHIP INTEREST TRANSFER. On the Closing Date, JBBCo.
shall have executed and delivered to ASCI a certificate acknowledging the
transfer of a 49% membership interest in DNV to ASCI in accordance with and
pursuant to the DNV Purchase Agreement.
(m) DNV LLC AGREEMENT. JBBW and JBBCo. shall have executed the DNV
LLC Agreement, which shall reflect ASCI's ownership of a 49% membership interest
in DNV.
(n) JBBCo. DISTRIBUTION SERVICES AGREEMENT, THE ADMINISTRATIVE
SERVICES AGREEMENT AND THE OCCUPANCY AGREEMENT. The matters set forth in
Sections 3.01(b)(iv) and (v) shall have occurred as stated therein and no
agreement in this Section 3.03(n) shall have been modified or amended without
ASCI's prior written consent.
(o) MARKETING SERVICES AGREEMENT. The Marketing Services Agreement
shall have become effective in accordance with its terms, and there shall have
been no default by JBBCo. of the provisions of the Marketing Services Agreement.
(p) The fulfillment of the conditions precedent set forth in Article
VII of the DNV Purchase Agreement and Sections 4.01 through 4.08 of the JBBW
Subscription Agreement.
Section 3.04. CONDITIONS TO THE OBLIGATIONS OF JBBW, JBBCo. AND
FORTUNE. The obligations of JBBW, JBBCo. and the Closing shall be subject to the
fulfillment of the following conditions precedent:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS.
(i) The representations and warranties of V&S and ASCI in this
Agreement and the other Basic Agreements shall have been true and
correct when made and shall be true and correct in all material
respects as of the Closing (except
14
those representations and warranties that are qualified by materiality
or "Material Adverse Effect" which shall be true and correct in all
respects) with the same force and effect as if made as of the Closing
Date, other than such representations and warranties as are made only
as of another specific date, which shall be true and correct in all
material respects as of such date (except those representations and
warranties which are qualified by materiality or "Material Adverse
Effect" which shall be true and correct in all respects as of such
date);
(ii) The covenants and agreements contained in this Agreement
and the other Basic Agreements to be complied with on or before the
Closing Date by V&S and ASCI shall have been complied with in all
material respects; and
(iii) Each of JBBW, JBBCo. and Fortune shall have received from
V&S and ASCI an Officer's Certificate with respect to the matters set
forth in clauses (i) and (ii) above.
(b) NO PROCEEDING OR LITIGATION. No Action shall have been commenced
(i) by or before any Governmental Authority that has had or would have a
Material Adverse Effect on V&S or ASCI or (ii) seeking a temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction preventing the consummation of the transactions
contemplated by this Agreement and the other Basic Agreements.
(c) LEGAL OPINIONS. JBBW, JBBCo. and Fortune shall have received from
counsel or counsels reasonably satisfactory to JBBW and Fortune (it being agreed
that Xxxxx Xxxxxxxxxx LLP and Xxxxxxxxx Xxxxxxxxx (Swedish counsel) are
satisfactory to JBBW and Fortune) legal opinions addressing the matters set
forth on Schedule 3.04(c) hereto, each in form and substance reasonably
satisfactory to them and their counsel.
(d) MATERIAL ADVERSE CHANGE. Since the date of this Agreement, no
Material Adverse Change shall have occurred relating to V&S or ASCI.
(e) RESOLUTIONS. JBBW and Fortune shall have received a true and
complete copy, certified by the secretary or assistant-secretary of each of V&S
and ASCI, of the resolutions duly and validly adopted by the Board of Directors
or other relevant body of V&S and ASCI evidencing its authorization of the
execution and delivery of this Agreement and the other Basic Agreements and the
consummation of the transactions contemplated hereby and thereby.
(f) SERIES A-1 PREFERRED STOCK PURCHASE PRICE. On the Closing Date,
V&S shall have transferred US$375 million to a bank account designated by JBBW
in exchange for the Series A-1 Preferred Stock in accordance with the JBBW
Subscription Agreement.
(g) DNV MEMBERSHIP INTEREST PURCHASE PRICE. On the Closing Date, ASCI
shall have transferred US$270 million to a bank account designated by JBBCo. in
exchange for a 49% membership interest in DNV in accordance with and pursuant to
the DNV Purchase Agreement.
(h) DNV LLC AGREEMENT. ASCI shall have executed the DNV LLC
Agreement, which shall reflect ASCI's ownership of a 49% membership interest
in DNV.
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(i) JBBW SHAREHOLDERS AGREEMENT. V&S shall have executed the JBBW
Shareholders Agreement.
(j) The fulfillment of the conditions precedent set forth in Article
VIII of the DNV Purchase Agreement and Sections 4.10 through 4.15 of the JBBW
Subscription Agreement.
Section 3.05. CLOSING DELIVERIES. At the Closing, each Party shall
deliver to each other Party the certificates and other documents required to be
delivered pursuant to Sections 3.01, 3.02, 3.03 and 3.04.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF JBBW, JBBCO.
AND FORTUNE
Section 4.01. JOINT AND SEVERAL REPRESENTATIONS AND WARRANTIES OF JBBW
AND JBBCo. JBBW and JBBCo. hereby jointly and severally represent and warrant to
V&S and ASCI as follows, as qualified by the disclosures set forth in the
disclosure schedule of JBBW and JBBCo. (the "BEAM DISCLOSURE SCHEDULE")
delivered to V&S and ASCI contemporaneously herewith and the Fortune SEC
Reports:
(a) ORGANIZATION AND AUTHORITY. DNV is a limited liability company
duly organized and validly existing under the laws of the State of Delaware, and
has all necessary power and authority to carry on its business as currently
contemplated to be conducted. DNV is, or will be as of the Closing Date, duly
qualified to do business in all jurisdictions where its business is currently
contemplated to be conducted except where such failure would not have a Material
Adverse Effect on DNV. DNV has all necessary power and authority to enter into
the JBBCo. Distribution Services Agreement, the ASCI Distribution Services
Agreement and the Administrative Services Agreement and, prior to the effective
date of each such agreement, it will have all necessary power and authority to
carry out its obligations thereunder and to consummate the transactions
contemplated thereby. The execution and delivery by DNV of the JBBCo.
Distribution Services Agreement, the ASCI Distribution Services Agreement, the
Administrative Services Agreement and the Occupancy Agreement the performance by
it of its obligations thereunder and the consummation by it of the transactions
contemplated thereby have been, or as of the Closing Date will have been, duly
authorized by all requisite action. The JBBCo. Distribution Services Agreement,
the ASCI Distribution Services Agreement, the Administrative Services Agreement
and the Occupancy Agreement once executed, will have been duly executed and
delivered by DNV and (assuming due authorization, execution and delivery by each
other Person signatory thereto), upon execution and delivery thereof, each such
agreement will constitute a legal, valid and binding obligation of DNV,
enforceable against it in accordance with its terms.
(b) NO CONFLICT. Except as set forth in Section 4.01(b) of the Beam
Disclosure Schedule, the execution, delivery and performance by DNV of the
JBBCo. Distribution Services Agreement, the ASCI Distribution Services
Agreement, the Administrative Services Agreement and the Occupancy Agreement
will not (i) violate, conflict with or result in the breach of any provision of
its current limited liability company agreement or certificate of formation,
(ii) conflict with or violate any Law applicable to DNV or any of its assets,
properties or businesses or (iii) conflict with, result in any breach of,
16
constitute a default (or event with which the giving of notice or lapse of time
or both, would become a default) under, require any consent under, or give to
others any rights or result in any loss of rights (including, without
limitation, rights upon a change of control) pursuant to, any contract,
agreement or arrangement by which DNV is bound.
(c) LITIGATION. There are no Actions by or against DNV pending before
any Governmental Authority (or to the best knowledge of JBBW and JBBCo.
threatened to be brought by or before any Governmental Authority) which, if
adversely determined, would have a Material Adverse Effect on DNV, and DNV is
not subject to any Governmental Order (nor, to the best knowledge of each of
JBBW and JBBCo. are there any such Governmental Orders threatened to be imposed
by any Governmental Authority), which if adversely determined, would have a
Material Adverse Effect on DNV or any of the transactions contemplated by this
Agreement or by the other Basic Agreements.
Section 4.02. SEVERAL REPRESENTATIONS AND WARRANTIES OF FORTUNE, JBBW
AND JBBCo. Fortune hereby represents and warrants, and each of JBBW and JBBCo.,
each as to itself only and each severally and not jointly, hereby represents and
warrants, to V&S and ASCI as follows, as qualified as set forth herein by the
Beam Disclosure Schedule:
(a) ORGANIZATION AND AUTHORITY. JBBW is a corporation duly organized
and validly existing under the laws of the State of Delaware and has all
necessary power and authority to carry on its business as presently conducted
and as currently contemplated to be conducted. JBBW is duly qualified to do
business in all jurisdictions where it presently conducts business except where
failure to be so qualified would not have a Material Adverse Effect on JBBW.
Except as set forth in Section 4.02(a) of the Beam Disclosure Schedule, JBBW has
all necessary power and authority to enter into this Agreement and the other
Basic Agreements to which it will become a party as contemplated hereby, to
carry out its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. JBBCo. is a corporation duly
organized and validly existing under the laws of the State of Delaware and has
all necessary power and authority to carry on its business as presently
conducted and as currently contemplated to be conducted. JBBCo. has all
necessary power and authority to enter into this Agreement and the other Basic
Agreements to which it will become a party, to carry out its obligations
hereunder and thereunder and consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the other Basic
Agreements to which it will become a party as contemplated hereby by each of
JBBW and JBBCo., the performance by it of its obligations hereunder and
thereunder and the consummation by it of the transactions contemplated hereby
and thereby have been duly authorized by all requisite action. This Agreement
has been duly executed and delivered by each of JBBW and JBBCo. and (assuming
due authorization, execution and delivery by the other Persons signatory hereto)
this Agreement constitutes, and upon execution and delivery thereof each other
Basic Agreement to which it will become a party will constitute, a legal, valid
and binding obligation of each of JBBW and JBBCo. enforceable against it in
accordance with its terms.
(b) NO CONFLICT. Except as set forth in Section 4.02(b) of the Beam
Disclosure Schedule, the execution, delivery and performance by each of JBBW and
JBBCo. of this Agreement and the other Basic Agreements to which it will become
a party as contemplated hereby do not and will not (i) violate, conflict with or
result in the breach of any provision of its by-laws or certificate of
incorporation, as applicable, (ii) conflict with or violate any Law applicable
to JBBW or JBBCo. or any of their respective Subsidiaries or any
17
of their respective assets, properties or businesses or (iii) conflict with,
result in any breach of, constitute a default (or event with which the giving of
notice or lapse of time or both, would become a default) under, require any
consent under, or give to others any rights or result in any loss of rights
(including, without limitation, rights upon a change of control) pursuant to any
contract, agreement or arrangement by which JBBW, JBBCo. or any of their
respective Subsidiaries is bound, except, in the case of (iii) above, such as
would not have a Material Adverse Effect on JBBW or JBBCo. or any of the
transactions contemplated hereby or by the Basic Agreements.
(c) LITIGATION. Except as set forth in Section 4.02(c) of the Beam
Disclosure Schedule, there are no Actions by or against either JBBW or JBBCo.
pending before any Governmental Authority (or, to the best knowledge of each of
JBBW and JBBCo., threatened to be brought by or before any Governmental
Authority) which, if adversely determined, would have a Material Adverse Effect
on JBBW or JBBCo. or any of the transactions contemplated hereby or by the other
Basic Agreements. None of JBBW, or JBBCo. is subject to any Governmental Order
(nor, to the best knowledge of each of JBBW or JBBCo. are there any such
Governmental Orders threatened to be imposed by any Governmental Authority)
which, if adversely determined, would have a Material Adverse Effect on JBBW or
JBBCo. or any of the transactions contemplated hereby or by the other Basic
Agreements.
Section 4.03. REPRESENTATIONS AND WARRANTIES OF FORTUNE. Fortune
hereby warrants and represents to V&S and ASCI as follows, as qualified as set
forth herein by the disclosure schedule of Fortune (the "FORTUNE DISCLOSURE
SCHEDULE") delivered to V&S and ASCI contemporaneously herewith:
(a) ORGANIZATION AND AUTHORITY. Fortune is a corporation duly
organized and validly existing under the laws of the State of Delaware and has
all necessary power and authority to enter into this Agreement and the other
Basic Agreements to which it will become a party as contemplated hereby, to
carry out its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the other Basic Agreements to which it will become a party as
contemplated hereby by Fortune, the performance by it of its obligations
hereunder and thereunder and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all requisite
action. This Agreement has been duly executed and delivered by Fortune and
(assuming due authorization, execution and delivery by the other Persons
signatory hereto) this Agreement constitutes, and upon execution and delivery
thereof each other Basic Agreement to which it will become a party will
constitute, a legal, valid and binding obligation of Fortune enforceable against
it in accordance with its terms.
(b) NO CONFLICT. Except as set forth in Section 4.03(b) of the
Fortune Disclosure Schedule, the execution, delivery and performance by Fortune
of this Agreement and the other Basic Agreements to which it will become a party
as contemplated hereby do not and will not (i) violate, conflict with or result
in the breach of any provision of its by-laws or certificate of incorporation,
as applicable, (ii) conflict with or violate any Law applicable to Fortune or
any of its Subsidiaries or any of its assets, properties or businesses or (iii)
conflict with, result in any breach of, constitute a default (or event with
which the giving of notice or lapse of time or both, would become a default)
under, require any consent under, or give to others any rights or result in any
loss of rights (including, without limitation, rights upon a change of control)
pursuant to, any contract, agreement or arrangement by which
18
Fortune or any of its Subsidiaries is bound, except in the case of (iii) above,
such as would not have a Material Adverse Effect on JBBW or JBBCo. or any of the
transactions contemplated hereby or by the other Basic Agreements.
(c) FORTUNE SEC REPORTS. Except as set forth in Section 4.03(c) of
the Fortune Disclosure Schedule, (i) the Fortune SEC Reports, as of their
respective filing dates with respect to information therein regarding or
affecting Beam, did not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and complied in
all material respects with the requirements of the Exchange Act and the rules
and regulations of the SEC thereunder, and (ii) there has not occurred a
Material Adverse Change relating to Fortune and its Subsidiaries since the dates
of filing of the Annual Report on Form 10-K for the year 2000 for Fortune.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF V&S AND ASCI
V&S and ASCI hereby jointly and severally represent and warrant to
JBBW, JBBCo. and Fortune as follows, as qualified by the disclosures set forth
in the disclosure schedule of V&S and ASCI (the "V&S DISCLOSURE SCHEDULE")
delivered to JBBW, JBBCo., and Fortune contemporaneously herewith:
(a) ORGANIZATION AND AUTHORITY. V&S is an AKTIEBOLAG duly organized
and validly existing under the laws of Sweden and has all necessary power and
authority to carry on its business as presently conducted and as currently
contemplated to be conducted. V&S has all necessary power and authority to enter
into this Agreement and the other Basic Agreements to which it will become a
party as contemplated hereby, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
ASCI is a corporation duly organized and validly existing under the laws of the
State of Delaware and has all necessary power and authority to carry on its
business as presently conducted and as currently contemplated to be conducted.
ASCI is, or will be as of the Closing Date, duly qualified to do business in all
jurisdictions where its business is currently contemplated to be conducted
except where such failure would not have a Material Adverse Effect on ASCI. ASCI
has all necessary power and authority to enter into this Agreement and the other
Basic Agreements to which it will become a party, to carry out its obligations
hereunder and thereunder and consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the other Basic
Agreements to which it will become a party as contemplated hereby by each of V&S
and ASCI, the performance by it of its obligations hereunder and thereunder and
the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all requisite action. This Agreement has been duly
executed and delivered by each of V&S and ASCI and (assuming due authorization,
execution and delivery by the other Persons signatory hereto) this Agreement
constitutes, and upon execution and delivery thereof each other Basic Agreement
to which it will become a party will constitute, a legal, valid and binding
obligation of each of V&S and ASCI, enforceable against it in accordance with
its terms.
(b) NO CONFLICT. Except as set forth in Section 5(b) of the V&S
Disclosure Schedule, the execution, delivery and performance by each of V&S and
ASCI of this
19
Agreement and the other Basic Agreements to which it will become a party as
contemplated hereby do not and will not (i) violate, conflict with or result in
the breach of any provision of its by-laws or certificate of incorporation, as
applicable, (ii) conflict with or violate any Law applicable to V&S, its
Subsidiaries or ASCI or any of their respective assets, properties or businesses
or (iii) conflict with, result in any breach of, constitute a default (or event
with which the giving of notice or lapse of time or both, would become a
default) under, require any consent under, or give to others any rights or
result in any loss of rights (including, without limitation, rights upon a
change of control) pursuant to, any material contract, agreement or arrangement
by which V&S, it Subsidiaries, or ASCI is bound, except in the case of (iii)
above, such as would not have a Material Adverse Effect on V&S or ASCI or on any
of the transactions contemplated hereby or by the other Basic Agreements.
(c) LITIGATION. Except as set forth in Section 5(c) of the V&S
Disclosure Schedule, there are no Actions by or against either V&S or ASCI
pending before any Governmental Authority (or, to the best knowledge of each of
V&S and ASCI, threatened to be brought by or before any Governmental Authority)
which, if adversely determined, would have a Material Adverse Effect on V&S or
ASCI or any of the transactions contemplated hereby or by the other Basic
Agreements. None of V&S or ASCI is subject to any Governmental Order (nor, to
the best knowledge of each of V&S or ASCI are there any such Governmental Orders
threatened to be imposed by any Governmental Authority) which, if adversely
determined, would have a Material Adverse Effect on V&S or ASCI or any of the
transactions contemplated hereby or by the other Basic Agreements.
ARTICLE VI
COVENANTS
Section 6.01. MUTUAL CONFIDENTIALITY.
(a) Each Party agrees to, and shall cause its agents,
representatives, Controlled Affiliates, employees, officers and directors,
banks, rating agencies, lawyers, accountants and consultants to:
(i) treat and hold as confidential (and not disclose or provide
access to any Person to) all information relating to financial data, trade
secrets, processes, patent and trademark applications, product development,
price, customer and supplier lists, pricing and marketing plans, policies
and strategies, details of client and consultant contracts, operations
methods, product development techniques, business acquisition plans, new
personnel acquisition plans and all other confidential information with
respect to the businesses of each of the other parties (each such item,
individually and in the aggregate, "INFORMATION");
(ii) in the event that any such Party or any such agent,
representative, Controlled Affiliate, employee, officer or director becomes
legally compelled (in order to comply with securities laws, stock exchange
or other regulatory requirements or otherwise) in the opinion of the
disclosing Party's legal counsel, after consultation with the Party to whom
the Information relates and its legal counsel, to disclose any such
Information relating to another Party, provide the Party to whom such
Information relates with prompt written notice of such requirement so that
such Party
20
to whom the Information relates may seek a protective order or other remedy
or waive compliance with this Section 6.01;
(iii) in the event that such protective order or other remedy is
not obtained, or the Party to whom the Information relates waives
compliance with this Section 6.01, furnish only that portion of such
Information which is legally required to be provided and exercise its
commercially reasonable efforts to obtain assurances that confidential
treatment will be accorded such Information; and
(iv) promptly furnish upon request to the Party to whom the
Information relates any and all copies (in whatever form or medium) of all
such Information then in the possession of such Party or any of its agents,
representatives, Controlled Affiliates, employees, officers and directors
and destroy any and all additional copies then in the possession of such
Party or any of its agents, representatives, Controlled Affiliates,
employees, officers and directors of such Information and of any analyses,
compilations, studies or other documents prepared, in whole or in part, on
the basis thereof;
PROVIDED, HOWEVER, that this Section 6.01 shall not apply to any Information
that, at the time of disclosure, is available publicly and was not disclosed in
breach of this Agreement by such Party, its agents, representatives, Controlled
Affiliates, employees, officers or directors; PROVIDED, FURTHER, that this
Section 6.01 shall not apply to any Information relating to this Agreement that
is disclosed in connection with any action to seek indemnification under or any
Dispute relating to this Agreement, it being understood that each of the Parties
hereto will use its reasonable efforts to obtain assurances that the Information
relating to this Agreement will be accorded confidential treatment; PROVIDED,
FURTHER, that, with respect to Intellectual Property, specific Information shall
not be deemed to be within the foregoing exception merely because it is embraced
in general disclosures in the public domain. In addition, with respect to
Intellectual Property, any combination of features shall not be deemed to be
within the foregoing exception merely because the individual features are in the
public domain unless the combination itself and its principle of operation are
in the public domain.
(b) REMEDIES FOR BREACH. In the event of a breach or threatened
breach by any Party of such Party's obligations under this Section 6.01, the
Parties acknowledge that remedies at law are inadequate and that they will be
immediately and irreparably damaged in the event the provisions of this Section
6.01 are not specifically enforced. In the event of a breach or threatened
breach of this Section 6.01, the non-breaching Party shall be entitled to
enforce its rights by means of injunction (including interlocutory injunction)
in addition to any other remedies available to the Party at law or equity and
without prejudice to any other recourses available to it under the
circumstances, whether in damages or otherwise. The Parties further agree to be
responsible for any breach of this Section 6.01 by its agents, representatives,
Controlled Affiliates, employees, officers, directors, banks, rating agencies,
lawyers, accountants or consultants.
Section 6.02. REGULATORY AND OTHER AUTHORIZATIONS; NOTICES AND
CONSENTS.
(a) Each Party shall use commercially reasonable efforts to obtain
all permits, governmental licenses, authorizations, qualifications,
notifications, consents, orders and approvals of all Governmental Authorities
and officials that may be or become necessary
21
for its execution and delivery of, and the performance of its obligations
pursuant to, this Agreement and the other Basic Agreements and each of the
transactions contemplated hereby and thereby, including, but not limited to,
entering into the Basic Agreements to which it is contemplated to become a party
as provided hereby and thereby and will cooperate fully with each other in
promptly seeking to obtain all such permits, governmental licenses,
authorizations, qualifications, notifications, consents, orders and approvals.
Each Party agrees to supply as promptly as practicable to the appropriate
Governmental Authorities any information and documentary material that may be
requested pursuant to any Laws by such Governmental Authorities for this
purpose.
(b) Each Party shall promptly notify such third parties and use
commercially reasonable efforts to obtain such third party approvals,
contractual consents, waivers and amendments as each of the other Parties may in
its reasonable discretion deem necessary or desirable in connection with the
transactions contemplated by this Agreement; without limiting the foregoing,
Beam hereby covenants to use commercially reasonable efforts to obtain consents
to the assignment and transfer of existing distribution agreements in respect of
Existing Agency Brands to DNV as of the Closing Date or promptly following the
Closing Date.
(c) Each Party shall cooperate and use commercially reasonable
efforts to assist each other Party in giving such notices and obtaining such
third party approvals, contractual consents, waivers and amendments.
(d) The Parties agree that, in the event any third party approval,
contractual consent, waiver or amendment necessary or desirable to preserve for
the business of any of the Parties any right or benefit under any lease,
license, contract, commitment or other agreement or arrangement to which any
Party is a party is not obtained prior to the Closing, the Parties will,
subsequent to the Closing, cooperate in attempting to obtain such third party
approval, contractual consent, waiver or amendment as promptly thereafter as
practicable.
(e) The Parties shall, promptly after the date of this Agreement,
prepare and file the notifications required under the HSR Act in connection with
the transactions contemplated by this Agreement and the other Basic Agreements.
(f) To the extent required third party approvals, contractual
consents, waivers or amendments are not obtained prior to the Closing, and such
matters shall not have been waived as a condition to the Closing, then until
such third party approvals, contractual consents, waivers or amendments are
obtained, the Party required to obtain such third party approvals, contractual
consents, waivers or amendments (which for DNV shall be JBBCo. or JBBW) shall
use commercially reasonable efforts to cause DNV to obtain the benefits and DNV
to assume the obligations with respect to such items in accordance with this
Agreement by acting as subcontractor, sublicensee, sublessee or third party
beneficiary of the applicable Party and the applicable Party shall enforce for
the benefit of DNV any and all rights of such Party against a third party with
respect to any such items and such Party shall promptly pay to DNV any and all
monies received by such Party in connection with any such lease, license,
contract, commitment or other agreement or arrangement. The applicable Party
shall continue to use all commercially reasonable efforts to obtain third party
approvals, contractual consents, waivers or amendments with respect to each such
item as may be required. In addition, in the event that any lease, license,
contract, commitment or other
22
agreement or arrangement which contains a non-competition or non-disclosure
provision in favor of DNV as successor to a Party and such provision shall not
be assignable to DNV at Closing, the applicable Party hereby covenants and
agrees to enforce, to the extent legally possible, at DNV's request, in
accordance with DNV's instructions and at DNV's expense, the non-competition or
non-disclosure provisions of such lease, license, contract, commitment or other
agreement or arrangement. Notwithstanding anything herein to the contrary,
nothing in this Section 6.02 shall limit a Party's right to terminate this
Agreement pursuant to Article VIII, so long as such Party has up to then
complied in all material respects with its obligations under this Section 6.02.
Section 6.03. NOTICE OF DEVELOPMENTS. Prior to the Closing, each Party
shall promptly notify each other Party to whom it has made representations and
warranties in writing of (i) all events, circumstances, facts and occurrences
arising subsequent to the date of this Agreement which could be reasonably
expected to result in any breach of a representation or warranty or covenant in
this Agreement of the Party giving the notice or which could be reasonably
expected to have the effect of making any representation or warranty in this
Agreement of any such Party untrue or incorrect in any respect and (ii) all
other material developments affecting the assets, liabilities, business,
financial condition, operations, results of operations, customer or supplier
relations or employee relations of the Party giving notice, except that the
obligation imposed on Fortune pursuant to this clause (ii) shall be limited to
information regarding or affecting Beam or the matters contemplated by this
Agreement or the Basic Agreements, PROVIDED, that any notice pursuant to this
Section 6.03 shall not affect or be deemed to modify any representation or
warranty contained herein (including the Schedules hereto) or the conditions
precedent to the obligations of the parties to consummate the transactions
contemplated by this Agreement or the other Basic Agreements.
Section 6.04. NO SOLICITATION OR NEGOTIATION. Each Party to this
Agreement agrees that between the date of execution of this Agreement and the
earlier of (i) the Closing and (ii) the termination of this Agreement, none of
the Parties nor any of their respective Affiliates, officers, directors,
representatives or agents will (a) solicit, initiate, consider, encourage or
accept any other proposals or offers from any Person to enter into any agreement
or arrangement falling within the ambits of the purpose and scope of this
agreement as set out in Article II above, or (b) participate in any discussions,
conversations, negotiations and other communications regarding, or furnish to
any other Person any information with respect to, or otherwise cooperate in any
way, assist or participate in, facilitate or encourage any effort or attempt by
any other Person to seek to do so. Each Party shall notify all the other Parties
promptly if any such proposal or offer, or any inquiry or other contact with any
Person with respect thereto, is made or shall have been received after the date
of execution of this Agreement, and shall, in any such notice, indicate in
reasonable detail the identity of the Person making such proposal, offer,
inquiry or contact and the terms and conditions of such proposal, offer, inquiry
or other contact.
Section 6.05. NO SOLICITATION OF EMPLOYEES. Except as otherwise
contemplated by the Employee Matters Agreement and the Supplemental Agreement,
from and after the date hereof and for a period ending on the earlier of (i) the
date which is one (1) year after the date of termination of this Agreement by
any Party in accordance with the provisions of Article VIII (and in the event of
such termination) and (ii) the date that is one (1) year from the date the ASCI
Distribution Services Agreement (or, if the ASCI Distribution Services Agreement
is not executed, the Interim Distribution Services
23
Agreement) or the JBBCo. Distribution Services Agreement is terminated, none of
the Parties shall, (subject to the allocation of DNV employees contemplated by
Section 3.05 of the Supplemental Agreement), and the Parties shall cause DNV to
not (subject to the hiring by DNV of certain employees of JBBCo. contemplated by
Section 2.03(c)(i) hereof ) solicit, hire or retain as an employee, independent
contractor or consultant, directly or indirectly, any officers or employees of
the other Parties or DNV or any of their respective Subsidiaries (including,
without limitation, those DNV employees allocated to ASCI or JBBCo. pursuant to
Section 3.05 of the Supplemental Agreement) or induce any such officers or
employees to terminate employment; PROVIDED that the foregoing shall be
inapplicable to Dual Personnel upon a dissolution of DNV except to the extent
provided in the Supplemental Agreement; and PROVIDED, FURTHER; that general
advertisements in newspapers and other periodicals or electronic media shall not
be considered solicitations for employment within the meaning of this Section
6.05 and no Party shall be prohibited from speaking with or hiring any such
officer or employee who shall have approached the Party without having been so
solicited by such Party.
Section 6.06. COVENANT TO SATISFY CONDITIONS. Subject to the terms and
conditions of this Agreement and the other Basic Agreements, each Party shall
use reasonable commercial efforts to take all action required of it to satisfy
the conditions set forth in Article III, and otherwise to fulfill its
obligations under the terms of this Agreement and the other Basic Agreements and
to facilitate the consummation of the transactions contemplated hereby and
thereby, including, without limitation, in order to make effective the transfer
of the DNV Assets to DNV. No Party shall, nor shall any Party permit any of its
Subsidiaries to, willfully take any action that would or is reasonably expected
to result in a material breach of any provision of this Agreement or the other
Basic Agreements or any of the representations and warranties set forth in this
Agreement or the other Basic Agreements being untrue in any material respect on
and as of the Closing Date.
Section 6.07. DNV EMPLOYEE MATTERS. Employee matters with respect to
DNV shall be treated in accordance with and pursuant to the Employee Matters
Agreement.
Section 6.08. ACCESS TO INFORMATION; COOPERATION. From the date hereof
until the Closing, upon reasonable prior notice and during normal business
hours, based upon the prior consultation of the Parties, Beam shall, and shall
cause its officers, directors, senior employees, accountants and counsel to: (i)
afford the officers, employees and authorized agents, accountants, counsel and
representatives of V&S and ASCI, reasonable access, during reasonable hours, to
the offices, properties, plants, other facilities of JBBW, JBBCo. and DNV and to
the books and records of JBBW, JBBCo. and DNV and to those officers, directors,
senior employees, agents, accountants and counsel of each of JBBW and JBBCo. as
they shall reasonably request and (ii) furnish to the officers, employees and
authorized agents, accountants, counsel and representatives of V&S and ASCI such
additional financial and operating data and other information regarding the
assets, properties and goodwill of the JBBW, JBBCo. or DNV, in each case, as V&S
or ASCI may from time to time reasonably request; PROVIDED, that (i) such access
shall not unreasonably interfere with the business of JBBCo. and (ii) JBBW will
not be obligated to provide any employee records the provision of which is
prohibited by law.
Section 6.09. CONDUCT OF BUSINESS PENDING CLOSING. JBBW agrees that,
between the date of this Agreement and the earlier of the Closing or the
termination of this Agreement in accordance with its terms, unless V&S and ASCI
shall otherwise agree in
24
writing and except as expressly contemplated by this Agreement or any other
Basic Agreement, JBBW shall cause the businesses of its Subsidiaries (including
JBBCo.) and DNV to be conducted only in the ordinary course of business and in a
manner consistent with the past practice of JBBW and its Subsidiaries considered
as a whole; and JBBW shall use its reasonable commercial efforts to preserve
substantially intact the business organization of its Subsidiaries and DNV and
to preserve the current relationships of its Subsidiaries and DNV with
customers, suppliers and other persons with which its Subsidiaries or DNV have
significant business relations. By way of amplification and not limitation,
except as contemplated by this Agreement and the Basic Agreements, JBBW shall
not, and shall cause its Subsidiaries and DNV to not, between the date of this
Agreement and the earlier of the Closing and the termination of this Agreement
in accordance with its terms, directly or indirectly do or propose to do (A)
anything which under the JBBW Subscription Agreement or the DNV Purchase
Agreement they may not do without the consent of V&S or ASCI, and (B) any of the
following without the prior written consent of V&S and ASCI:
(i) amend or otherwise change the organizational documents of
itself, its Subsidiaries or DNV;
(ii) issue, sell, pledge, dispose of, grant, encumber, or
authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (A)
any shares of capital stock of any class of itself, its Subsidiaries, or
membership interests of DNV, or any options, warrants, convertible securities or
other rights of any kind to acquire any shares of such capital stock or
membership interest, or any other ownership interest (including, without
limitation, any phantom interest), of itself, its Subsidiaries or DNV or (B) any
assets of itself, or its Subsidiaries or DNV except, with respect to sales by
JBBW or its Subsidiaries which are for fair value and which would not give rise
to a right of V&S to exercise a put option or right of first offer under the
JBBW Shareholders Agreement were such agreement in effect between the date
hereof and the Closing Date.
(iii) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect to any
of the capital stock of itself, its Subsidiaries or DNV except for quarterly
cash dividends of JBBW and its Subsidiaries, in the ordinary course of its
business and consistent with past practice;
(iv) with respect to its Subsidiaries and DNV (but not with
respect to JBBW), the same shall not acquire (including, without limitation, by
merger, consolidation, or acquisition of stock or assets) any corporation,
partnership, other business organization or any division thereof or any material
amount of assets;
(v) make or change any material Tax election or method of Tax
accounting;
(vi) enter into any partnership or joint venture arrangement with
respect to its business operations in the Territory.
Notwithstanding the foregoing, the restrictions set forth in
clauses (i) through (vi) above (other than clause (ii) (B) as it relates to JBBW
and its Subsidiaries) shall only be applicable to the extent, following the
Closing Date, such Person would not have been able to take such action without
the prior consent of V&S as a shareholder of Series A-1 Preferred
25
Stock pursuant to the JBBW Subscription Agreement or ASCI as a member of DNV
pursuant to the DNV Purchase Agreement, as provided in each thereof.
Section 6.10. NO MISUSE. The Parties hereby undertake not to, and to
cause its Subsidiaries not to, take any action, the primary purpose or the
effect of which is to circumvent or frustrate the transactions contemplated by
this Agreement and the other Basic Agreements.
Section 6.11. GUARANTEE. V&S hereby unconditionally and irrevocably
guarantees the full and prompt performance and payment when due of all
obligations (the "Obligations") of ASCI under this Agreement and the other Basic
Agreements to the extent such obligations are required to be performed or paid
on or prior to the Closing Date. V&S hereby agrees that its obligations
hereunder shall be unaffected by any failure to enforce the Obligations. The
liability of V&S under this Guarantee will be absolute and unconditional
irrespective of any change in the time, place or manner of, or in any other term
of, all or any of the Obligations, or any amendment or waiver of or consent to
departure from this Agreement (other than with respect to the waiver of a
particular Obligation or the provisions of this Section 6.11). V&S covenants
that this Guarantee shall not be discharged except by full payment and
performance of the Obligations. The liability of V&S under this Guarantee is a
guarantee of performance and payment and not of collection and shall
automatically terminate immediately following the Closing except with respect to
defaulted obligations accrued at such time.
Section 6.12. OTHER AGREEMENTS
(a) Prior to the Closing Date, JBBCo. and ASCI shall have negotiated
in good faith and agreed upon the terms and conditions of the Sub-Distribution
Agreement referred to in Section 2.02(a)(v) and contemplated therein and shall
have executed the same.
(b) ASCI and DNV shall execute and deliver the ASCI Distribution
Services Agreement on such date as ASCI shall have requested upon at least
thirty (30) days notice by ASCI to DNV , pursuant to which DNV shall provide the
distribution services contemplated therein in respect of those jurisdictions in
or into which ASCI shall from time to time be licensed to sell V&S Products.
(c) Upon V&S's request, JBBCo. and V&S shall negotiate in good faith
the Sub-Distribution Agreement, and JBBCo. will enter into such agreement.
Section 6.13. TAX SHARING AGREEMENT. Fortune shall comply and cause
JBBW to comply with the terms of the Tax Sharing Agreement. Fortune will not
amend or permit JBBW to amend the Tax Sharing Agreement without V&S's consent.
Section 6.14. USE OF PROCEEDS. Subject to Section 7.01(a)(v), V&S and
ASCI acknowledge and agree that, under the terms of the Basic Agreements, Beam
may use the cash proceeds from JBBCo.'s sale of the membership interest in DNV
and JBBW's sale of Series A-1 Preferred Stock and any future exercise of the
Purchase Right (as defined in the JBBW Subscription Agreement) (the "Transaction
Proceeds") for the reduction of debt and/or payment of dividends solely to
Beam's Affiliates and V&S hereby acknowledges it has no right to receive any
portion of such proceeds as a dividend; PROVIDED, HOWEVER, that the amount of
cash proceeds that may be used for such debt reduction and/or dividend payments
pursuant to this Section 6.14 shall be reduced dollar-for-dollar by (i) the
amounts
26
payable by Beam to Fortune under the Tax Sharing Agreement relating to or
arising out of (A) the transactions contemplated by the JBBW Subscription
Agreement and by the DNV Purchase Agreement (including the contribution of
assets by JBB to DNV preparatory thereto and any other matters incidental to
such transactions), or (B) any payment, distribution or other use whatsoever of
the proceeds from such transactions occurring at any time and for any purpose
(including for the purpose of retiring debt) and (ii) any amounts payable by
Beam directly to any tax authorities attributable to such transactions, or
payment, distribution or other use of such proceeds; PROVIDED FURTHER, that if
upon the filing of any Tax Return or as the result of a Final Determination (as
defined in the Tax Sharing Agreement) the amounts determined to be payable under
clause (i) and clause (ii) above are greater than the amounts previously
calculated to be payable and relied upon in fixing the cash proceeds to be used
pursuant to this Section 6.14, the amount of such excess shall be promptly paid
by Fortune to Beam (so as, in the case of clause (i) above effectively to offset
the payment which by operation of the Tax Sharing Agreement JBBW is to make to
Fortune on account thereof and in the case of clause (ii) above to reimburse
Beam for any directly incurred Taxes) or alternatively, in the case of clause
(ii) above, directly to the tax authority on behalf of Beam; and, PROVIDED,
FURTHER, that if upon the filing of any Tax Return or as the result of a Final
Determination (as defined in the Tax Sharing Agreement) the amounts determined
to be payable under clause (i) above and clause (ii) above are less than the
amounts previously calculated to be payable and relied upon in fixing the cash
proceeds to be used pursuant to this Section 6.14, such differential shall be
promptly paid by Beam to Fortune. For the avoidance of doubt, the intent of the
Parties as reflected in the foregoing provisions of this Section 6.14 is to
permit Fortune to enjoy the proceeds arising from the aforementioned
transactions and to ensure that the Tax burden associated with such transactions
as ultimately determined shall be borne in full by Fortune as the Party enjoying
the proceeds arising therefrom (both by way of dividends and reduction of debt,
having in mind Fortune's covenant in Section 2.22 of the JBBW Subscription
Agreement that there be no net indebtedness as of the Closing Date). (This is
accomplished on a basis allowing the normal operation of the Tax Sharing
Agreement considered as a stand alone document and then adjusting for the
effects of it in this Agreement.)
Section 6.15. FURTHER ASSURANCES. Each Party hereto agrees to execute
any and all documents and to perform such other acts as may be expedient to
further the purposes of this Agreement and the other Basic Agreements and the
transactions contemplated hereby and thereby, including, without limitation,
executing such documents and performing such acts as may be necessary to ensure
that DNV, ASCI and JBBCo. are in compliance with state liquor Laws. The Parties
further agree that, to the extent necessary, the Parties will consider on a
limited, state-by-state basis, such adjustments to the distribution structure
contemplated by this Agreement and the other Basic Agreements as are necessary
in order to comply with the liquor Laws of a particular state; PROVIDED, that in
no event shall any of the documents executed and actions performed under this
Section 6.15 alter the economic arrangement the Parties have established under
this Agreement and the other Basic Agreements.
Section 6.16. CERTAIN TRANSACTIONS. Except as expressly contemplated
by a Basic Agreement, neither Fortune nor any Affiliate shall engage, directly
or indirectly, in any transaction with or affecting DNV without the advance
written consent of V&S and ASCI, which consent shall not be unreasonably
withheld or delayed; provided, however, that, notwithstanding any provision of
the Basic Agreement to the contrary, neither Fortune (nor any Affiliate) nor V&S
(nor any Affiliate) shall provide any loan or other form of financial support or
assistance to DNV, directly or indirectly, or provide any guarantee, keep-well,
stop
27
loss or other arrangement or undertaking tantamount to a guarantee to any
party (including DNV) in respect of any indebtedness or other form of liability
or obligation of DNV, without the advance written consent (which shall not be
unreasonably withheld or delayed) of V&S and ASCI or Fortune, as the case may
be.
ARTICLE VII
INDEMNIFICATION
Section 7.01. INDEMNIFICATION BY JBBW, JBBCo. AND FORTUNE.
(a) Each of JBBW, JBBCo. and Fortune (the "Fortune Indemnifying Parties")
shall indemnify, defend and hold harmless V&S and ASCI and their Affiliates
and officers, agents, directors and employees (the "V&S INDEMNIFIED PARTIES"),
on an after-Tax basis, from and against any and all losses, claims, damages,
Liabilities or expenses (including court costs, reasonable expenses and
reasonable attorney's fees) (collectively, "LOSSES") (including, without
limitation, incurred in connection with any suit or claim that may be brought
against the V&S Indemnified Parties by third parties) to the extent that such
Losses arise out of or accrue from (without duplication) (i) the bad faith or
willful misconduct of JBBW, JBBCo. or Fortune, respectively; (ii) any
misrepresentation or breach of any representations or warranties of JBBW, JBBCo.
or Fortune, respectively, set forth in this Agreement or any other Basic
Agreement; (iii) any breach by JBBW, JBBCo. or Fortune, respectively, of any
covenants, agreements or undertakings of such Party contained in or made
pursuant to this Agreement or any other Basic Agreement; (iv) the failure of
JBBW, JBBCo. or Fortune, respectively, or any of their Affiliates' failure to
comply with any Laws (except to the extent such noncompliance is within the
scope of a representation and warranty in Section 4.02(b) and 4.03(b), in which
case indemnification for such noncompliance shall be sought only with respect to
such representation and warranty); (v) the incurrence by any V&S Indemnified
Party of any Liability for Taxes relating to or arising out of any of the uses
by Beam of the Transaction Proceeds or the fact that V&S, as a shareholder of
JBBW, does not participate in any dividend by JBBW arising therefrom; (vi) the
incurrence by any V&S Indemnified Party of any Liability (as transferee,
successor, by operation of law or otherwise) in respect of Taxes payable by or
imposed on Fortune or any Affiliate of Fortune (other than JBBW or any
Subsidiary of JBBW for the period after which JBBW has deconsolidated from the
affiliated group in which Fortune is the common parent, but only to the extent
the Liability incurred is attributable to such period following
deconsolidation), without regard to the period to which such Taxes relate or any
other factors; (vii) any Liability in respect of Taxes payable by or otherwise
incurred or suffered by JBWW or any of its Subsidiaries, however arising,
whether directly or indirectly, including by reason of inclusion in the Fortune
Affiliated Group, for taxable periods (or portions thereof) ended on or before
December 31, 2000 to the extent such Taxes exceed the sum of (A) the total
reserves established therefor in the Beam Financial Statements (without regard
to deferred Tax assets and liabilities) plus (B) the amount of any Tax refunds
or Tax credits for any such periods not reflected in such Financial Statements;
or (viii) the distribution by Beam of the Existing Agency Brands prior to the
assignment of such distribution arrangement to DNV as provided in Section
2.01(c) of the Supplemental Agreement. The amount payable by the Fortune
Indemnifying Parties pursuant to the foregoing clause (vii) shall be adjusted,
as and to the extent appropriate, to take into account Tax benefits and
detriments from timing differences (E.G., acceleration of income or delay of
deductions) including such timing differences that affect both taxable years
ending on or before December 31, 2000 and taxable years ending after December
31, 2000. Without
28
limiting the scope of any other provision hereof, it is acknowledged and agreed
that the V&S Indemnified Parties shall be entitled to bring claims under the
foregoing clause (vii) on the grounds of loss and/or impairment to the value of
V&S's investment in JBBW, it being understood, however, that insofar as Fortune
shall pay the Liability for Taxes in question arising under the foregoing clause
(vii) directly to the tax authorities or reimburse JBBW and any Subsidiary of
JBBW in respect of such Taxes, such payment or reimbursement by Fortune shall
serve to satisfy (to such extent) its indemnity obligations under this Section
7.01 with respect to clause (vii).
Section 7.02. INDEMNIFICATION BY V&S AND ASCI.
(a) Each of V&S and ASCI shall defend and hold harmless JBBW, JBBCo.
and Fortune and their respective Affiliates and officers, agents, directors and
employees (the "BEAM INDEMNIFIED PARTIES"), on an after-Tax basis, from and
against any and all Losses incurred by the Beam Indemnified Parties (including,
without limitation, in connection with any suit or claim that may be brought
against the Beam Indemnified Parties by third parties) to the extent that such
Losses arise out of or accrue from (without duplication) (i) the bad faith or
willful misconduct of V&S, ASCI or their Affiliates; (ii) any misrepresentation
or breach of any representations or warranties of V&S or ASCI set forth in this
Agreement or any other Basic Agreement; (iii) any breach by V&S or ASCI of any
covenants, agreements or undertakings of such Party contained in or made
pursuant to this Agreement or any other Basic Agreement; (iv) the failure of V&S
or ASCI or their Affiliates to comply with any Laws; or (v) the incurrence by
any Beam Indemnified Party of any Liability in respect of the Taxes of V&S or
any Affiliate.
Section 7.03. INDEMNIFICATION PROCEDURES. Whenever any V&S Indemnified
Party or Beam Indemnified Party, as the case may be (the "INDEMNIFIED PARTY"),
shall become aware that a claim has been asserted or threatened which, if valid,
would subject JBBW, JBBCo., Fortune, V&S or ASCI, as the case may be (the
"INDEMNIFYING PARTY"), to an indemnity obligation under this Agreement, the
Indemnified Party promptly will notify the Indemnifying Party in writing of such
claim in sufficient detail to enable the Indemnifying Party to evaluate the
claim. The Indemnifying Party will have the right, but not the obligation, to
assume the defense of such claim. If the Indemnifying Party assumes such
defense, the Indemnified Party will have the right to participate in the defense
thereof and to employ counsel, separate from the counsel employed by the
Indemnifying Party, at its own expense. The Indemnifying Party shall be liable
for the reasonable fees and expenses of counsel employed by the Indemnified
Party for any period during which the Indemnifying Party has not assumed the
defense of any claim whether or not the Indemnifying Party chooses to defend any
such action. If the Indemnifying Party fails to assume the defense of such claim
within forty-five (45) days after the receipt of notice of the claim, the
Indemnified Party (upon delivering written notice to such effect to the
Indemnifying Party) shall have the right to undertake, at the Indemnifying
Party's cost and expense, the defense, compromise or settlement of such claim,
subject to the right of the Indemnifying Party to assume the defense of such
claim at any time prior to settlement, compromise or final determination
thereof, and PROVIDED, HOWEVER, that the Indemnified Party shall not enter into
any such compromise or settlement without the written consent of the
Indemnifying Party. In the event the Indemnified Party assumes the defense of
the claim, the Indemnified Party will keep the Indemnifying Party reasonably
informed of the progress of any such defense, compromise or settlement. Written
notice of any indemnification claim arising under Sections 7.01(a)(ii) or
7.02(a)(ii) must be given by the Indemnified Party to the Indemnifying Party
prior to the date
29
which is 18 months following the Closing. If written notice of a claim has been
given prior to 18 months following the Closing hereunder, then the relevant
representations and warranties shall survive as to such claim, until such claim
has been finally resolved.
Section 7.04. CONTRACTUAL LIMITATION PERIOD. Any arbitration,
litigation, judicial reference or other legal proceeding involving the parties
shall be commenced within two (2) years after the claiming Party initially
became aware of the accrual of the cause of action, except for arbitration,
litigation, judicial reference or other legal proceedings in respect to claims
for indemnification under the provisions of Sections 7.01(a)(ii) or 7.02(a)(ii)
of this Agreement which shall be commenced within 18 months following the
Closing.
Section 7.05. AFTER-TAX BASIS. The amount of Losses for which
indemnification is provided under this Agreement shall be computed on an
after-Tax basis as follows: the pre-Tax amount of Losses shall be (i) increased
to take account of the Tax cost, if any, incurred by the Indemnified Party
arising from the receipt or accrual of indemnity payments hereunder (including
any additional payments pursuant to this Section 7.05) and (ii) reduced fairly
to take account of any Tax benefit realized or reasonably assured of realization
by the Indemnified Party arising from the incurrence or payment of any such
Losses or the events giving rise thereto. In computing the amount of any such
Tax cost or Tax benefit, the Indemnified Party will be deemed to be subject to
applicable income taxes at the maximum statutory rate then in effect. To the
extent legally permissible, any indemnity payment made pursuant to this
Agreement will be treated as an adjustment to the purchase price for applicable
Tax purposes. If an administrative or judicial determination that has become
final and non-appealable overturns such treatment, the Indemnifying Party on
notice, and upon presentation of appropriate substantiation, shall make an
appropriate additional payment to the Indemnified Party on account thereof.
Section 7.06. CONSEQUENTIAL DAMAGES. Any Indemnified Party entitled
pursuant to this Agreement to receive indemnification from the Indemnifying
Party shall not be entitled to recover consequential damages, including
consequential damages consisting of business interruption or lost profits
(except to the extent they constitute direct contractual damages under a Basic
Agreement), or with respect to punitive damages.
Section 7.07. LIMITATIONS ON LIABILITY. It is hereby understood and
agreed by the Parties to this Agreement that the Indemnified Parties may recover
monetary damages only once under the indemnification provisions of this
Agreement and the other Basic Agreements for any particular Loss. To the extent
a claim for indemnification for a particular Loss may be brought against a Party
hereto under both a Basic Agreement which does, and another Basic Agreement
which does not, contain a threshold amount of losses prior to an Indemnified
Party being permitted to recover on the indemnity therein, the Indemnified
Parties shall bring such claim under the agreement containing such threshold,
except that this provision shall not apply to claims for indemnification under
another Basic Agreement if and to the extent expressly set forth in the other
Basic Agreement.
Section 7.08. EXCLUSIVE REMEDIES. The sole and exclusive rights and
remedies of a Party to this Agreement for any claim arising under or with
respect to the subject matter of this Agreement against another Party hereto
shall be the indemnification provided in this Article VII, and each Party agrees
that it will not pursue any other remedy, except that any such Party may seek
specific performance or injunctive relief and may seek any remedy for claims of
fraud or intentional misrepresentation.
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ARTICLE VIII
TERM AND TERMINATION
Section 8.01. TERM OF THE AGREEMENT. This Agreement may be terminated
pursuant to Section 8.02. Once the Closing has occurred, except for the
representations and warranties in Articles IV and V which shall survive for a
period of 18 months following the Closing and the indemnification obligations in
Article VII, which, subject to Section 7.04, shall survive indefinitely
notwithstanding any termination of this Agreement pursuant to Section 8.02, and
Section 6.01, Article X and Section 11.03, which shall survive indefinitely
notwithstanding such termination, this Agreement shall remain in force in
perpetuity (the "TERM") unless and until earlier terminated pursuant to Section
8.02.
Section 8.02. TERMINATION BY V&S OR JBBW. This Agreement shall be
subject to termination upon the occurrence of any of the following events:
(i) by V&S (for V&S and ASCI) or JBBW (for JBBW, JBBCo. and
Fortune), if the Closing shall not have occurred on or before one year from
the date of this Agreement (the "Termination Date"); PROVIDED, HOWEVER,
that the right to terminate this Agreement under this Section 8.02(a)(i)
shall not be available to any Party whose failure to fulfill any obligation
under this Agreement or any other Basic Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before the
Termination Date;
(ii) by V&S (for V&S and ASCI) if JBBW, JBBCo. or Fortune, files
a petition for bankruptcy or is adjudicated as bankrupt (or the equivalent
in any country in which either Party operates);
(iii) by JBBW (for JBBW, JBBCo. and Fortune) if V&S or ASCI,
files a petition for bankruptcy or is adjudicated as bankrupt (or the
equivalent in any country in which either Party operates);
(iv) by V&S (for V&S and ASCI) if a petition in bankruptcy (or
the equivalent in any country in which either Party operates) is filed
against JBBW, JBBCo. or Fortune, respectively, and such petition is not
removed or resolved within ninety (90) calendar days;
(v) by JBBW (for JBBW, JBBCo. and Fortune) if a petition in
bankruptcy (or the equivalent in any country in which either Party
operates) is filed against V&S or ASCI, and such petition is not removed or
resolved within ninety (90) calendar days;
(vi) by V&S (for V&S and ASCI) if JBBW, JBBCo. or Fortune makes
an assignment for the benefit of its creditors or an arrangement for its
creditors pursuant to any bankruptcy laws;
(vii) by JBBW (for JBBW, JBBCo. and Fortune) if V&S or ASCI makes
an assignment for the benefit of its creditors or an arrangement for its
creditors pursuant to any bankruptcy laws;
31
(viii) by V&S (for V&S and ASCI) if JBBW or JBBCo., respectively,
discontinues its business;
(ix) by JBBW (for JBBW, JBBCo. and Fortune) if V&S or ASCI
discontinues its business;
(x) by V&S (for V&S and ASCI) if a receiver is appointed for
JBBW, JBBCo. or Fortune, respectively, or its business;
(xi) by JBBW (for JBBW, JBBCo. and Fortune) if a receiver is
appointed for V&S or ASCI or its business;
(xii) prior to the Closing, by V&S (for V&S and ASCI) if (i) any
of JBBW's, JBBCo.'s or Fortune's respective representations and warranties
contained in this Agreement or any other Basic Agreement shall have been
inaccurate in any material respect (other than such representations and
warranties as are qualified by materiality or "Material Adverse Effect"
which shall not have been inaccurate in any respect) as of the date of this
Agreement or the corresponding Basic Agreement or shall have become
inaccurate in any material respect (other than such representations and
warranties as are qualified by materiality or "Material Adverse Effect"
which shall not have been inaccurate in any respect) as of a date
subsequent to the date of this Agreement or the corresponding Basic
Agreement (as if made on such subsequent date), such that the condition set
forth in Section 3.03(a)(i) would not be satisfied or (ii) any of JBBW's,
JBBCo.'s or Fortune's respective covenants contained in this Agreement any
other Basic Agreement shall have been breached in any material respect such
that the condition set forth in Section 3.03(a)(ii) would not be satisfied;
(xiii) prior to the Closing, by JBBW (for JBBW, JBBCo. and
Fortune) if (i) any of V&S's or ASCI's respective representations and
warranties contained in this Agreement or any other Basic Agreement shall
have been inaccurate in any material respect (other than such
representations and warranties as are qualified by materiality or "Material
Adverse Effect" which shall not have been inaccurate in any respect) as of
the date of this Agreement or the corresponding Basic Agreement or shall
have become inaccurate in any material respect (other than such
representations and warranties as are qualified by materiality or "Material
Adverse Effect" which shall not have been inaccurate in any respect) as of
a date subsequent to the date of this Agreement or the corresponding Basic
Agreement (as if made on such subsequent date), such that the condition set
forth in Section 3.04(a)(i) would not be satisfied or (ii) any of V&S's or
ASCI's respective covenants contained in this Agreement or any other Basic
Agreement shall have been breached in any material respect such that the
condition set forth in Section 3.04(a)(ii) would not be satisfied;
(xiv) by V&S (for V&S and ASCI) or JBBW (for JBBW, JBBCo. and
Fortune) if any Governmental Authority shall have issued an order, decree
or ruling or taken any other Action enjoining or otherwise prohibiting the
transactions contemplated by this Agreement or any other Basic Agreement
and such order, decree, ruling or other Action shall have become final and
nonappealable;
(xv) by V&S (for V&S and ASCI) upon a Beam Change of Control;
32
(xvi) by JBBW (for JBBW, JBBCo. and Fortune) upon an ASCI Change
of Control; or
(xvii) prior to the Closing, by V&S (for V&S and ASCI) or by JBBW
(for JBBW, JBBCo. and Fortune) upon the termination of any of the JBBW
Subscription Agreement, the DNV Purchase Agreement, the Employee Matters
Agreement or the Interim Distribution Agreement pursuant to their
respective terms.
Section 8.03. EFFECT OF TERMINATION. Termination of this Agreement by
a Party shall not act as a waiver of any breach of this Agreement and shall not
act as a release of any Party hereto from any liability for breach of such
Party's obligations under this Agreement.
ARTICLE IX
INTENTIONALLY OMITTED
ARTICLE X
DISPUTE RESOLUTION
Section 10.01. NEGOTIATION BETWEEN EXECUTIVES. Each of the Parties
shall attempt in good faith to resolve any dispute or disputes arising out of or
relating to the interpretation, breach or termination of this Agreement and any
other Basic Agreement (a "DISPUTE") promptly by negotiations between executives
of the disputing Parties who have authority to settle the Dispute. Any Party who
is a party to a Dispute may give the other Parties written notice of any Dispute
not resolved in the normal course of business. Within twenty (20) days after
delivery of such a notice, executives of all Parties involved in the Dispute who
have authority to settle the Dispute shall meet at a mutually acceptable time
and place, and thereafter as often as they reasonably deem necessary, to attempt
to resolve the Dispute. All negotiations pursuant to this Section 10.01 shall be
confidential.
Section 10.02. ARBITRATION.
(a) AGREEMENT TO ARBITRATE. Any Dispute which the Parties are unable
to settle shall be referred (by any Party) to and finally resolved by
arbitration in accordance with the Rules for Commercial Arbitration of the
American Arbitration Association (the "RULES"), and such rules are deemed to be
incorporated by reference into this Agreement.
(b) ARBITRATORS. If the Dispute involves an amount in controversy of
less than US$5 million the Dispute shall be submitted to a single arbitrator;
otherwise, the Dispute shall be submitted to a panel of three (3) arbitrators.
The arbitrator(s) will be appointed by the American Arbitration Association in
accordance with the Rules. Unless the Parties mutually agree otherwise, each
arbitrator shall be a lawyer admitted to the bar of his or her home
jurisdiction, shall speak, read, and write English fluently, and shall have
significant expertise in the wine and spirits industry.
(c) SEAT AND LANGUAGE OF ARBITRATION. The seat of arbitration shall
be, and any hearings shall take place in, New York City, New York. The language
of the arbitration shall be English.
33
(d) GOVERNING LAW. The arbitrators shall decide the Dispute in
accordance with the substantive laws of the State of New York without regard to
its conflicts of law principles.
(e) FEES AND EXPENSES OF ARBITRATION. Each Party shall bear its own
fees and expenses of arbitration hereunder, including the fees and expenses of
its lawyers, representatives, and witnesses, and shall share equally with the
other Party all other costs of the arbitration, including the fees and expenses
of the arbitrators; PROVIDED, HOWEVER, that the arbitrators shall have the power
to award recovery of any or all costs of arbitration (including fees and
expenses of the arbitrators, costs of assistance required by the tribunal, fees
of the American Arbitration Association and reasonable attorneys' and other
experts' fees) to the prevailing Party.
(f) ENTRY OF ORDER; EXCLUSIVE REMEDY; NOTICES. The Parties agree to
be bound by the decision of the majority of the arbitrators. The arbitrators'
award shall be final and judgment on such award may be entered, enforced, and
executed in any court having jurisdiction. The award of the arbitrators shall be
the sole and exclusive remedy between the Parties regarding the Dispute. The
award may be in terms of injunctive relief or monetary damages, as the
arbitrators determine. In the case of monetary damages, the award shall be made
and promptly paid in U.S. Dollars, free of any Tax, deduction, or offset. Any
costs, fees, or Taxes incident to enforcing the award shall, to the maximum
extent permitted by Law, be charged against the party resisting such
enforcement. Service of notice of arbitration and any other paper or submission
in the arbitration, as well as of summons, complaint, and all other pleading and
papers in any suit, Action, or proceeding brought to enter, enforce, or execute
the arbitrators' award, may be made by delivering a copy thereof to the
receiving Party to the attention of such Party's chief executive officer at the
address specified in Section 11.03 hereof.
(g) PROVISIONAL REMEDIES. Before the establishment of the arbitral
tribunal, either Party may (without inconsistency with this agreement to
arbitrate) seek from any court having jurisdiction interim injunctive or other
equitable relief in respect of the subject matter of the Dispute. Any Party may
seek, to the full extent allowed by law, judicial enforcement in a court having
jurisdiction of any relief granted by the arbitral tribunal. If any court takes
jurisdiction of any Dispute, the Parties agree that (a) punitive, consequential
or exemplary damages will not be available and (b) the Parties waive the right
to trial by jury.
(h) REMEDIES; NO PUNITIVE OR SPECIAL DAMAGES; INTEREST. The
arbitrators shall have the authority to award any remedy or relief that the
arbitrators deem just and equitable, including, without limitation, specific
performance of any obligation created hereunder and the issuance of permanent
injunctive relief; PROVIDED, HOWEVER, that, notwithstanding any contrary
provision contained in the governing law hereunder, the arbitrators shall have
no authority to award punitive, consequential or exemplary damages or any other
monetary damages not measured by the prevailing Party's actual damages. If the
award includes damages, the award shall also include interest from the date of
any damages incurred for breach or other violation of the relevant agreement
until payment thereof in full, at a rate to be fixed by the arbitrators.
(i) SUMMARY ADJUDICATION. In any arbitration proceeding subject to
this Agreement, the arbitrators are expressly empowered to decide (by documents
only, or with a
34
non-evidentiary hearing, at the arbitrators' sole discretion) applications to
dismiss as a matter of law or for summary adjudication.
(j) STATUTES OF LIMITATION. All statutes of limitation and defenses
based on the passage of time which would otherwise be applicable to the Dispute
shall apply to any arbitration under the relevant agreement.
(k) NO CONSOLIDATION. There shall be no consolidation or joinder of
any Dispute subject to arbitration hereunder with any arbitration or legal
proceeding involving third parties.
(l) CONSENT TO JURISDICTION. Subject to the arbitration provisions
herein, each of the Parties hereto irrevocably submits to the jurisdiction of a
court of competent jurisdiction in and for the City, State and County of New
York (including the United States District Court for the Southern District of
New York), for the purposes of any suit, action or other proceeding arising out
of this Agreement or any transaction contemplated hereby. Each of the Parties
hereto further irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in a court of competent jurisdiction in
and for the City, State and County of New York (including the United States
District Court for the Southern District of New York), and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum, that the venue of the suit, action or
other proceeding is improper or that this Agreement or the subject matter hereof
may not be enforced in or by such court.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. NO AGENCY OR PARTNERSHIP. Nothing in this Agreement or
the Schedules hereto shall be deemed to create any partnership or agency
relationship between any of the Parties hereto, except that it is intended for
United States federal income and all other relevant Tax purposes that DNV shall
be treated as a partnership and the Parties agree that they shall so treat DNV
and shall cause DNV to take all such steps as may be necessary to assure such
treatment. No Party shall be entitled to act on behalf of and/or bind any one or
more of the other Parties without prior written authorization establishing its
authority to do so.
Section 11.02. EXPENSES. Except as otherwise provided in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the Party incurring such costs and expenses. The fee for filing under
the HSR Act shall be borne one-half by V&S and one-half by JBBW.
Section 11.03. NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing in the English language and
shall be given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by courier service, by telecopy or by telegram,
or upon electronic transmission, if sent
35
via facsimile (with confirmation of receipt without error), to the respective
Parties 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 11.03):
(a)
(i) if to V&S:
XX-000 00 Xxxxxxxxx, Xxxxxx
(visiting address: Formansvagen 19)
Attention: Rolf Cassergren
Telecopy No: 00-0-000-0000
(ii) if to ASCI:
Annelie Mahlm
c/o Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy No: x0-000-000-0000
(iii) with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy No.: x0-000-000-0000
AND
0 Xxxxxxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy No: x00-000-000-0000
(b)
(i) if to JBBW:
000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No: (000) 000-0000
(ii) if to JBBCo.:
000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No: (000) 000-0000
36
(iii) if to Fortune:
Fortune Brands, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No: (000) 000-0000
(iv) with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
Section 11.04. HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 11.05. SEVERABILITY. If any term or other provision of this
Agreement or any other Basic Agreement is invalid, illegal or incapable of being
enforced by any Law or public policy, all other terms and provisions of this
Agreement or any other Basic Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby or thereby is not affected in any manner materially adverse
to any Party. 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 or such other Basic 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 hereby and thereby
are consummated as originally contemplated to the greatest extent possible.
Section 11.06. ENTIRE AGREEMENT. This Agreement, together with the
Exhibits and Schedules hereto, the other Basic Agreements and the standstill
agreement between Fortune and V&S, constitutes the entire agreement of the
Parties hereto with respect to the subject matter hereof and thereof and
supersedes all prior agreements and undertakings, both written and oral, between
the Parties with respect to the subject matter hereof and thereof.
Section 11.07. ASSIGNMENT. Except as expressly provided herein or
therein, neither this Agreement nor any of the Basic Agreements may be assigned
by any Party by operation of Law or otherwise without the express written
consent of each of the other Parties (which consent may be granted or withheld
in the sole discretion of each such other Party).
Section 11.08. NO THIRD PARTY BENEFICIARIES. Except as expressly set
forth herein, this Agreement shall be binding upon and inure solely to the
benefit of the Parties and their permitted assigns and nothing herein, express
or implied, 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.
37
Section 11.09. NO BROKER'S FEES. Each Party agrees that no Person or
entity is or will be entitled to a brokers' fee or finders' fee or any other
similar commission directly or indirectly from such Party, except as previously
disclosed in writing to the other Parties. Each of the Parties agrees to
indemnify the other Parties against any and all liabilities that may arise due
to the activities of such Party with respect to any Person acting as a broker or
finder unless previously disclosed to the other Parties and specifically agreed
to in writing by them.
Section 11.10. AMENDMENT. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the Parties.
Section 11.11. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of New York without regard
to conflict of law principles thereof.
Section 11.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different Parties 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.
Section 11.13. PRESS RELEASES; SECURITIES LAW COMPLIANCE. No Party
hereto shall issue any press releases of any of the transactions contemplated by
this Agreement or the other Basic Agreements except as may be mutually agreed to
by the Parties, unless such disclosure is deemed necessary as a legal matter in
order to comply with securities laws, stock exchange or other regulatory
requirements in the opinion of the disclosing Party's legal counsel, after
consultation with the other Party and its legal counsel.
* * *
38
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the first date written above by their respective officers
thereunto duly authorized.
V&S VIN & SPRIT AB
By:______________________________
Name: Xxxxx Xxxxxxxxx
Title: President and Chief
Executive Officer
THE ABSOLUT SPIRITS COMPANY, INCORPORATED
By:______________________________
Name: Annelie Mahlm
Title: President
XXX XXXX BRANDS WORLDWIDE, INC.
By:______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President - Finance
XXX XXXX BRANDS CO.
By:______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President - Finance
FORTUNE BRANDS, INC.
By:______________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President - Strategy
and Corporate Development
1
