UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of report (Date of earliest event reported): November 2, 2015 (November 1, 2015) |
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ConAgra Foods, Inc. |
(Exact Name of Registrant as Specified in its Charter) |
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Delaware |
1-7275 |
47-0248710 |
(State of Incorporation) |
(Commission
File No.)
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(I.R.S. Employer
Identification No.)
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One ConAgra Drive
Omaha, NE
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68102 |
(Address of Principal Executive Offices) |
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(Zip Code) |
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(402) 240-4000 |
(Registrant’s Telephone Number, Including Area Code) |
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(Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
On November 1, 2015, ConAgra Foods, Inc. (the “Company”)
and TreeHouse Foods, Inc. (“TreeHouse”) entered into a Stock Purchase Agreement (the “Agreement”),
pursuant to which, subject to the satisfaction or waiver of certain conditions, the Company has agreed to sell its private label
operations (the “Business”) to TreeHouse (the “Transaction”) for $2.7 billion in cash on
a cash-free, debt-free basis, subject to working capital and other adjustments.
The Company and TreeHouse have each made customary representations,
warranties and covenants in the Agreement, including, among others, covenants by the Company to, subject to certain exceptions,
conduct the Business in the ordinary course during the interim period between the execution of the Agreement and the closing of
the Transaction.
The obligation of the parties to close the Transaction is subject
to customary closing conditions, including, among others, (i) the receipt of antitrust clearance in the United States and Canada;
and (ii) the absence of legal restraints or prohibitions. The obligation of each party to close the Transaction is also conditioned
upon the other party’s representations and warranties being true and correct (subject to certain materiality exceptions)
and the other party having performed in all material respects its obligations under the Agreement.
Pursuant to the Agreement, concurrently with the closing of
the Transaction, the Company and TreeHouse, and/or their respective affiliates, will enter into a transition services agreement
and certain other commercial arrangements.
The foregoing description of the Agreement does not purport
to be complete, and is qualified in its entirety by reference to the full text of the Agreement, which is attached hereto as Exhibit
2.1 and is incorporated herein by reference.
A copy of the Agreement has been included to provide investors
and stockholders with information regarding its terms and is not intended to provide any factual information about the Company
or TreeHouse or any of their respective subsidiaries or affiliates. The representations, warranties and covenants contained in
the Agreement have been made solely for the purposes of the Agreement and as of specific dates; were solely for the benefit of
the parties to the Agreement; are not intended as statements of fact to be relied upon by the Company’s or TreeHouse’s
investors or stockholders, but rather as a way of allocating contractual risk and governing the contractual rights and relationships
between the parties to the Agreement; have been modified or qualified by certain confidential disclosures that were made between
the parties in connection with the negotiation of the Agreement, which disclosures are not reflected in the Agreement itself; may
no longer be true as of a given date; and may apply standards of materiality in a way that is different from what may be viewed
as material by investors or stockholders. Investors and stockholders are not third party beneficiaries under the Agreement and
should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual
state of facts or condition of the Company, TreeHouse or any of their respective subsidiaries or affiliates. Moreover, information
concerning the subject matter of the representations and warranties may change after the date of the Agreement, which subsequent
information may or may not be fully reflected in the Company’s or TreeHouse’s public disclosures. The Company acknowledges
that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional
specific disclosures of material information regarding material contractual provisions are required to make the statements in this
Form 8-K not misleading.
Item 7.01 Regulation FD.
On November
1, 2015, the Company issued a press release announcing that the Company had entered into the Agreement, a copy of which
is attached as Exhibit 99.1 and incorporated by reference into this Item 7.01.
In accordance with General Instructions
B.2 of Form 8-K, the information in this Item 7.01 and the press release attached hereto as Exhibit 99.1 are being furnished to
the SEC in satisfaction of the public disclosure requirements of Regulation FD and shall not be deemed “filed” for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall they be deemed incorporated by reference in
any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such a
filing.
Item 9.01 Financial Statements and Exhibits.
| 2.1 | Stock Purchase Agreement, dated as of November 1, 2015, between ConAgra Foods, Inc. and TreeHouse Foods, Inc.* |
| 99.1 | Press Release of ConAgra Foods, Inc., dated November 2, 2015. |
| * | Certain schedules and exhibits to this agreement have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy
of any omitted schedule or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request. |
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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CONAGRA FOODS, INC. |
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Date: |
November 2, 2015 |
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By: |
/s/ Colleen Batcheler |
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Name: |
Colleen Batcheler |
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Title: |
Executive Vice President, General Counsel and Corporate Secretary |
EXHIBIT INDEX
Exhibit No. |
Description |
2.1 |
Stock Purchase Agreement, dated as of November 1, 2015, between ConAgra Foods, Inc. and TreeHouse Foods, Inc.* |
99.1 |
Press Release of ConAgra Foods, Inc., dated November 2, 2015. |
| * | Certain schedules and exhibits to this agreement have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy
of any omitted schedule or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request. |
Exhibit 2.1
EXECUTION
VERSION
STOCK
PURCHASE AGREEMENT
dated as
of
November
1, 2015
between
CONAGRA
FOODS, INC.
and
TREEHOUSE
FOODS, INC.
TABLE
OF CONTENTS
Article
1
Definitions |
|
Section
1.01. Definitions |
1 |
Section
1.02. Other Definitional and Interpretative Provisions |
14 |
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|
Article
2
Purchase and Sale |
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Section
2.01. Purchase and Sale of the Shares |
15 |
Section
2.02. Closing |
15 |
Section
2.03. Pre-Closing Estimates |
16 |
Section
2.04. Purchase Price Adjustment Amount Calculation |
17 |
Section
2.05. Adjustment of Closing Purchase Price |
18 |
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Article
3
Representations and Warranties of Seller |
|
Section
3.01. Corporate Existence and Power |
19 |
Section
3.02. Corporate Authorization |
19 |
Section
3.03. Governmental Authorization |
19 |
Section
3.04. Noncontravention |
19 |
Section
3.05. Ownership of Shares |
20 |
Section
3.06. Purchased Subsidiaries |
20 |
Section
3.07. Financial Statements |
20 |
Section
3.08. Absence of Certain Changes |
21 |
Section
3.09. No Undisclosed Material Liabilities |
21 |
Section
3.10. Material Contracts |
22 |
Section
3.11. Litigation |
24 |
Section
3.12. Compliance with Laws |
24 |
Section
3.13. Properties; Liens |
25 |
Section
3.14. Intellectual Property |
26 |
Section
3.15. Permits |
28 |
Section
3.16. Finders’ Fees |
28 |
Section
3.17. Employee Benefit Plans |
28 |
Section
3.18. Environmental Compliance |
32 |
Section
3.19. Taxes |
33 |
Section
3.20. Sufficiency |
35 |
Section
3.21. Customers and Suppliers |
36 |
Section
3.22. Accounts Receivable |
36 |
Section
3.23. Inventory |
36 |
Section
3.24. Product Warranty, Recalls and Label Claims |
36 |
Section
3.25. Affiliated Transactions |
37 |
Section
3.26. No Other Representations and Warranties |
37 |
Article
4
Representations and Warranties of Buyer |
|
Section
4.01. Corporate Existence and Power |
37 |
Section
4.02. Corporate Authorization |
37 |
Section
4.03. Governmental Authorization |
38 |
Section
4.04. Noncontravention |
38 |
Section
4.05. Financing |
38 |
Section
4.06. Litigation |
40 |
Section
4.07. Finders’ Fees |
40 |
Section
4.08. Inspections; No Other Representations |
40 |
Section
4.09. Purchase for Investment |
40 |
Section
4.10. Qualified Stock Purchase |
41 |
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Article
5
Covenants of Seller |
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Section
5.01. Conduct of the Business |
41 |
Section
5.02. Confidentiality |
44 |
Section
5.03. Noncompetition |
44 |
Section
5.04. Termination of Intercompany Arrangements |
45 |
Section
5.05. Capital Expenditures |
45 |
Section
5.06. Financial Information |
45 |
Section
5.07. Pre-Closing Transactions |
46 |
Section
5.08. Exclusivity |
46 |
Section
5.09. Waiver of Restrictions |
46 |
Section
5.10. Recordals for Registered Intellectual Property Rights |
47 |
Section
5.11. Documentation for Registered Intellectual Property Rights |
47 |
Section
5.12. Redemption of Notes |
47 |
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Article
6
Covenants of Buyer |
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Section
6.01. Confidentiality |
48 |
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Article
7
Covenants of Buyer and Seller |
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Section
7.01. Reasonable Best Efforts; Further Assurance |
49 |
Section
7.02. Certain Filings |
50 |
Section
7.03. Public Announcements |
50 |
Section
7.04. Notices of Certain Events |
51 |
Section
7.05. Non-solicit; Non-hire |
51 |
Section
7.06. Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege |
52 |
Section
7.07. Access to Information; Cooperation |
53 |
Section
7.08. Phase-out of Seller Retained Marks |
54 |
Section
7.09. Transition License to Specific Purchased Marks |
55 |
Section
7.10. Insurance Coverage |
56 |
Section
7.11. Replacement of Guaranties |
57 |
Section
7.12. Financing |
57 |
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Article
8
Tax Matters |
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Section
8.01. Tax Returns; Allocation of Taxes |
63 |
Section
8.02. Cooperation on Tax Matters |
65 |
Section
8.03. Tax Refunds and Tax Benefits |
65 |
Section
8.04. Covenants |
67 |
Section
8.05. Tax Sharing |
68 |
Section
8.06. Tax Indemnification |
68 |
Section
8.07. Tax Contests |
69 |
Section
8.08. Survival |
70 |
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Article
9
Employee Matters |
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Section
9.01. Treatment of Business Employees |
70 |
Section
9.02. Seller Benefit Plans |
71 |
Section
9.03. Equity and Equity-Based Compensation |
71 |
Section
9.04. US Defined Contribution Plans |
71 |
Section
9.05. Certain US Plans |
71 |
Section
9.06. Labor and Individual Agreements |
72 |
Section
9.07. Accrued Vacation and Sick Leave |
72 |
Section
9.08. Service Credit |
72 |
Section
9.09. Welfare Plans |
73 |
Section
9.10. Pre-Existing Conditions and Co-Payments |
73 |
Section
9.11. Flexible Spending Accounts |
73 |
Section
9.12. WARN Act and Other Notices |
74 |
Section
9.13. Workers Compensation |
74 |
Section
9.14. Treatment of Non-U.S. Transferred Employees |
75 |
Section
9.15. Transaction Payments |
75 |
Section
9.16. Ripon Closure |
75 |
Section
9.17. Withdrawal Liability |
75 |
Section
9.18. Transition Matters |
76 |
Section
9.19. Assignment of Agreements |
76 |
Section
9.20. Cooperation |
76 |
Section
9.21. No Third Party Beneficiaries |
77 |
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Article
10
Conditions to Closing |
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Section
10.01. Conditions to Obligations of Buyer and Seller |
77 |
Section
10.02. Conditions to Obligation of Buyer |
77 |
Section
10.03. Conditions to Obligation of Seller |
78 |
Section
10.04. Frustration of Closing Conditions |
78 |
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Article
11
Survival; Indemnification |
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Section
11.01. Survival of Representations, Warranties and Agreements |
79 |
Section
11.02. Indemnification |
79 |
Section
11.03. Procedures |
80 |
Section
11.04. Direct Claim Procedures |
82 |
Section
11.05. Environmental Matters |
83 |
Section
11.06. Calculation of Damages |
84 |
Section
11.07. Materiality |
85 |
Section
11.08. Assignment of Claims |
86 |
Section
11.09. Exclusivity of Remedies |
86 |
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Article
12
Termination |
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Section
12.01. Grounds for Termination |
86 |
Section
12.02. Effect of Termination |
87 |
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Article
13
Miscellaneous |
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Section
13.01. Notices |
87 |
Section
13.02. Amendments and Waivers |
89 |
Section
13.03. Expenses |
89 |
Section
13.04. Successors and Assigns |
89 |
Section
13.05. Governing Law |
89 |
Section
13.06. Jurisdiction |
89 |
Section
13.07. WAIVER OF JURY TRIAL |
90 |
Section
13.08. Counterparts; Effectiveness; No Third Party Beneficiaries |
90 |
Section
13.09. Specific Performance |
91 |
Section
13.10. Entire Agreement |
91 |
Section
13.11. Severability |
91 |
Section
13.12. Disclosure Schedule |
91 |
Section
13.13. No Recourse |
92 |
Exhibits
| EXHIBIT A | Form of Closing Statement |
| EXHIBIT B | Forms of Transition Services
Agreements |
| EXHIBIT C | Form of Trademark License
Agreement |
| EXHIBIT D | Forms of Supply Agreements |
| EXHIBIT E | Forms of Co-Manufacturing
Agreements |
STOCK
PURCHASE AGREEMENT
AGREEMENT
(this “Agreement”) dated as of November 1, 2015 between ConAgra Foods, Inc., a Delaware corporation (“Seller”),
and TreeHouse Foods, Inc., a Delaware corporation (“Buyer”).
W I
T N E S S E T H :
WHEREAS,
Seller, together with its Subsidiaries, owns and operates the Business (as defined below) through Ralcorp Holdings, Inc., a Missouri
corporation (the “Purchased Company”); and
WHEREAS,
Buyer desires to purchase the Shares (as defined below) from Seller, and Seller desires to sell the Shares to Buyer, upon the
terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE,
the parties hereto agree as follows:
Article
1
Definitions
Section 1.01.
Definitions. (a) As used herein, the following terms have the following meanings:
“Acquisition
Transaction” means any merger, consolidation, or other business combination with any unaffiliated third Person involving
the Purchased Subsidiaries or the acquisition by any unaffiliated third Person of all or substantially all of the assets (other
than the acquisition of assets or sale of goods in the ordinary course of business) or the equity interests of the Purchased Subsidiaries
other than, in each case, (x) as permitted or contemplated by this Agreement or (y) any transaction involving Seller as a whole
or a substantial portion of the assets or equity of Seller and its Subsidiaries, taken as a whole, which would not reasonably
be expected to impede or delay the transactions contemplated by this Agreement.
“Action”
means any action, suit, investigation, claim or proceeding, in each case by or before any arbitrator or Governmental Authority.
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control
with such Person. For purposes of this definition, “control” when used with respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise, and the terms “controlling” and “controlled” have correlative
meanings.
“Applicable
Law” means, with respect to any Person, any federal, provincial, state, foreign, municipal or local law (including common
law), constitution, treaty, statute, convention,
ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling
or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable
to such Person.
“Applicable
Transfer Date” means the Closing Date; provided that, for any Seller Business Employee whose employment transfers
to Buyer or its Affiliate after the Closing Date in accordance with Section
9.01, “Applicable Transfer Date” means the date of such transfer.
“Benefit
Plan” means each (i) “employee benefit plan” as defined in Section 3(3) of, and subject to, ERISA and (ii)
employee benefit, fringe benefit, supplemental unemployment benefit, severance, bonus, incentive, profit sharing, termination,
change of control, retention, pension, retirement, savings, stock option, phantom equity, stock purchase, stock appreciation,
stock based, health, welfare, medical, dental, disability, life insurance, retiree medical, retiree life, sick pay, vacation pay,
supplemental unemployment, and tuition assistance plan, program, arrangement or practice, whether written or oral, funded or unfunded,
insured or self-insured, registered or unregistered, under which the Seller, a Retained Subsidiary, a Purchased Subsidiary or
any of their respective Affiliates could reasonably have any Liability, contingent or otherwise, with respect to a Business Employee
or a former employee of the Business and that is maintained, sponsored or funded by the Seller, a Retained Subsidiary, a Purchased
Subsidiary or any of their respective Affiliates, other than a Multiemployer Plan or any plan sponsored by a Governmental Authority.
“Business”
means the production, marketing and sale of (i) retailer owned or retailer licensed ready-to-eat cereal, hot cereal, dry pasta,
snack and nutritional bars, fruit snacks, chocolate confectionaries, in-store bakery products (including cookies, bread, rolls,
danishes, donuts, muffins, pastries and cakes), refrigerated dough products (including biscuits, crescent rolls, cinnamon rolls,
sweet rolls, cookies, pizza crusts and pie crust), frozen waffles, frozen pancakes, frozen French toast, frozen bread, snack nuts,
snack mixes, trail mixes, cookies, crackers, pretzels, pita chips, preserves and jellies, syrups and flavored syrups, spoonables,
Mexican sauces, barbeque sauces, steak sauces, hot sauces, oriental sauces, Worcestershire sauces, and seafood and chili sauce,
(ii) branded dry pasta and branded in-store bakery cookies and (iii) co-manufactured bars, cookies, crackers, snack nuts, snack
mixes, pretzels and ready-to-eat cereal, in each case, in the North American (including Mexico) retail channel.
“Business
Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York or Omaha,
Nebraska are authorized or required by Applicable Law to close.
“Cash”
means all cash, cash equivalents and marketable securities (reduced by the amount of any outstanding but uncleared checks).
“Closing
Date” means the date on which the Closing occurs.
“Closing
Net Indebtedness” means, with respect to the Purchased Subsidiaries, the aggregate amount of (i) all outstanding Indebtedness
minus (ii) all Cash, in each case, calculated in accordance with GAAP consistently applied with the accounting methods
used in Exhibit A hereto and its Supporting Documentation and determined as of the close of business on the day immediately
preceding the Closing Date.
“Closing
Working Capital” means, with respect to the Purchased Subsidiaries, the excess of (i) consolidated current assets (other
than Cash and any income Tax assets (whether current or deferred)) over (ii) consolidated current liabilities (other than Indebtedness
and any liabilities for income Taxes (whether current or deferred)), in each case calculated in accordance with GAAP consistently
applied with the accounting methods used in, and including only the line items set forth in, the Form of Closing Statement attached
as Exhibit A hereto and the Supporting Documentation, and determined as of the close of business on the day immediately
preceding the Closing Date; provided, that “Closing Working Capital” shall not include a liability for the
Reduction Fee or any of the Specified Matters.
“Closing
Working Capital Adjustment” means (i) the Closing Working Capital, minus (ii) the Closing Working Capital Target
(which amount may be a positive or negative number).
“Closing
Working Capital Target” means $445,000,000.
“Co-Manufacturing
Agreements” means the four co-manufacturing agreements to be entered into between Buyer and Seller at the Closing in
substantially the forms attached as Exhibit E hereto.
“Code”
means the United States Internal Revenue Code of 1986.
“Combined
Tax” means (i) any Tax with respect to which any of the Purchased Subsidiaries has filed or will file a Tax Return with
a member of any Seller Group on a consolidated basis pursuant to Section 1501 of the Code and (ii) any income or franchise Tax
payable to any state, local or foreign taxing jurisdiction in which any of the Purchased Subsidiaries has filed or will file a
Tax Return with a member of any Seller Group (other than a group that consists solely of two or more of the Purchased Subsidiaries)
on an affiliated, consolidated, combined or unitary basis with respect to such Tax.
“Competition
Act” means the Competition Act (Canada), R.S.C., 1985, c. C-34.
“Competition
Act Approval” means one of the following shall have occurred: (i) the issuance to Buyer of an advance ruling certificate
by the Commissioner of Competition under subsection 102(1) of the Competition Act to the effect that the Commissioner of Competition
is satisfied that he would not have sufficient grounds upon which to apply to the Competition Tribunal for an order under Section
92 of the Competition Act with respect to the transactions contemplated by this Agreement; (ii) the waiting period, including
any extension thereof, under Section 123 of the Competition Act has expired or been terminated or (iii) Buyer has received a letter
from the Commissioner of Competition indicating that it does not, as of the date of the
letter, intend to make an application
under Section 92 of the Competition Act in respect of the transactions contemplated by this Agreement.
“Competition
Laws” means the HSR Act, the Competition Act and any other Applicable Laws that are designed or intended to prohibit,
restrict or regulate actions having the purpose or effect of monopolization, lessening of competition or restraint of trade.
“Confidentiality
Agreement” means the confidentiality agreement between Buyer and Seller dated as of July 23, 2015, together with the
clean team confidentiality agreement between Buyer and Seller dated as of August 21, 2015.
“Covered
Tax” means, without duplication, (i) any Tax of any Purchased Subsidiary described in clause (i) of the definition of
Tax for a Pre-Closing Tax Period; (ii) any Combined Tax; (iii) any Tax that any Purchased Subsidiary could be liable for as a
result of being a member of a Legacy Group on or prior to the Closing Date (including pursuant to Treasury Regulation Section
1.1502-6 (or any similar or analogous provision of state, local, or non-U.S. Applicable Law); (iv) any Tax of any Purchased Subsidiary
or other Buyer Indemnified Party resulting from a breach by Seller of any covenant or agreement contained in this Agreement; (v)
any Tax of any Purchased Subsidiary or other Buyer Indemnified Party resulting from a breach or inaccuracy of any Post-Closing
Tax Representation (determined disregarding any references to “material”, “materiality”, or “Material
Adverse Effect”); (vi) any Tax of any Purchased Subsidiary or other Buyer Indemnified Party arising from, or relating to
the payment, release, cancelation, termination or settlement of any intercompany agreements as contemplated in Section
5.04 or the transfer of assets pursuant to Section 5.07;
(vii) any Tax of any Purchased Subsidiary or other Buyer Indemnified Party resulting from any loss, reduction, disallowance or
unavailability (in whole or in part) of any refund (whether in the form of cash or a credit or offset against Taxes otherwise
payable) that gave rise to a payment to, or for the benefit of the Seller, under Section
8.03 or that was included in the computation of Final Closing Working Capital; (viii) any Tax of any Purchased Subsidiary or other
Buyer Indemnified Party resulting from the resolution of any of the Pending Tax Matters; (ix) any Tax imposed on any Purchased
Subsidiary or other Buyer Indemnified Party with respect to the income of any Flow-Thru Entity realized on or prior to the Closing
Date (such income being computed assuming the Flow-Thru Entity closed its books as of the Closing Date); (x) any Tax of another
Person imposed on any of the Purchased Subsidiaries as a successor or transferee or pursuant to Tax Sharing Agreements or Ordinary
Course Tax Sharing Agreements as a result of transactions, events or accruals occurring prior to the Closing, (xi) any Taxes of
any Purchased Subsidiary or other Buyer Indemnified Party with respect to Seller Transaction Expenses or the exercise of (or any
payment with respect to) the Seller Equity Awards; and (xii) any Tax for a Post-Closing Tax Period imposed on any Purchased Subsidiary
or other Buyer Indemnified Party as a result of the change of the method of accounting disclosed on Section
3.19 of the Disclosure Schedule. Covered Taxes shall exclude (a) any Tax to the extent included as a liability in the Final Closing
Working Capital (or, if due prior to the finalization of the Final Closing Working Capital, to the extent included in the Estimated
Closing Working Capital), and (b) any Tax to the extent resulting from a breach of any covenant or other agreement of Buyer contained
in Article 8 of this Agreement. For the
avoidance of doubt,
Taxes of a Purchased Subsidiary or other Buyer Indemnified Person for a Post-Closing Tax Period shall include any reduction of
any refund for Taxes that would have been otherwise receivable by any Purchased Subsidiary or Buyer Indemnified Person for a Post-Closing
Tax Period.
“Disclosure
Schedule” means the disclosure schedule delivered by Seller to Buyer concurrently with the execution and delivery of
this Agreement.
“Employed”
means, with respect to a Business Employee as of an applicable date of determination, that as of such date such Business Employee
(i) is actively employed, (ii) is absent from work on account of paid time off, vacation, sick or personal leave, short- disability,
Family Medical Leave or other leave of absence (excluding long-term disability employees unless otherwise required under (iii)
below) or (iii) for whom an obligation to recall, rehire or otherwise return to employment exists under a contractual obligation
or Applicable Law.
“Environmental
Laws” means any Applicable Laws relating to the environment, worker health or safety (solely to the extent relating
to exposure to hazardous or toxic substances) or any spill, release, discharge, disposal or recycling of, or exposure to, any
pollutant or contaminant or ignitable, corrosive, reactive or otherwise hazardous substance or waste, but excluding Applicable
Laws, if any, regulating Hazardous Substances in products manufactured or sold by the Business and associated labeling or packaging
content restrictions relating to environmental attributes or as respects to product take-back or end-of-life requirements.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means any Person (whether or not incorporated) that would be treated together with any other Person as a
“single employer” within the meaning of Section 414 of the Code or 4001(b)(1) of ERISA.
“Flow-Thru
Entity” means (a) any entity, plan or arrangement that is treated for U.S. federal income Tax purposes as a partnership,
(b) a “controlled foreign corporation” within the meaning of Code Section 957, or (c) a “passive foreign investment
corporation” within the meaning of Code Section 1297.
“GAAP”
means generally accepted accounting principles in the United States.
“Governmental
Authority” means any transnational, domestic or foreign federal, state, provincial or local, governmental authority,
tribunal, board, commission, department, court, agency or official, including any political subdivision thereof.
“Hazardous
Substances” means any pollutant or contaminant or any toxic, radioactive, ignitable, corrosive, reactive or otherwise
hazardous substance, waste or material, including petroleum, its derivatives, by-products and other hydrocarbons, and any other
substance, waste or material regulated as a pollutant or otherwise as “hazardous” under any Environmental Law.
“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“Indebtedness”
means, without duplication, (i) all obligations for borrowed money, whether or not evidenced by bonds, debentures, notes or other
instruments, (ii) all obligations evidenced by notes, bonds, debentures or other instruments, (iii) all obligations for the deferred
purchase price of assets, property or services, including earnouts, payments under notes payable (other than trade payables and
other liabilities incurred in the ordinary course of business in each case, to the extent included in Closing Working Capital),
(iv) all obligations for the reimbursement of draws under outstanding letters of credit, performance bonds or similar instruments
(but only to the extent actually drawn or called), excluding commitments securing performance under contractual obligations in
the ordinary course of business, (v) all obligations under capitalized leases, (vi) all guarantees (other than product warranties)
of any of the items set forth in the foregoing clauses (i) through (v), but excluding any guarantees of performance under contractual
obligations in the ordinary course of business, (vii) cash bonuses accrued through the Closing Date with respect to each Transferred
Employee that relate to the fiscal year performance period in effect as of the Closing Date plus cash bonuses for previous fiscal
year performance periods that have been earned but remain unpaid as of the Closing Date, in each case that are not otherwise taken
into account in Closing Working Capital, (viii) workers compensation claims filed prior to the Closing Date that are not otherwise
taken into account in Closing Working Capital and (ix) all outstanding prepayment premiums, if any, and accrued interest, fees
and expenses related to any of the items set forth in clauses (i) through (viii); provided, that with respect to any Purchased
Subsidiary, “Indebtedness” shall not include any of the foregoing to the extent between any Purchased Subsidiary,
on the one hand, and any other Purchased Subsidiary, on the other hand; provided, further, that “Indebtedness”
shall not include the Reduction Fee or any of the Specified Matters.
“Intellectual
Property” means all rights worldwide in and to any (i) trademarks, service marks, logos, trade names, trade dress, domain
names, social media accounts and other source identifiers, and all registrations and recordations, and all applications and filings
for registrations, recordals, renewals and extensions of, registrations, recordals and applications, and all goodwill associated
with any of the foregoing (collectively, “Trademarks”), (ii) patents, industrial design registrations and utility
models and all applications, recordals and filings for any of them, including all provisionals, divisionals, continuations, continuations-in-part,
reissues, reexaminations, renewals and extensions of or for, and all rights to claim priority, from or for, any of the foregoing
(collectively, “Patents”), (iii) mask works and copyrights, and all registrations of applications for, and
renewals and extensions of, any registration, recordal or filing for any masked work or copyright, and all moral rights associated
with, any work of authorship (collectively, “Copyrights”), (iv) trade secrets, know-how, and other proprietary
information, including inventions, recipes, formulas, specifications, methods, processes and algorithms, and (v) any other similar
type of proprietary right.
“IRS”
means the United States Internal Revenue Service.
“IT
Assets” means Software, systems, servers, computers, hardware, firmware, middleware, networks, data communications lines,
routers, hubs, switches and all other information technology equipment, and all associated documentation, in each case, used or
held for use in the operation of the Business.
“ITA”
means the Income Tax Act (Canada) and the regulations thereunder.
“Key
Employee” means each of Chris Wilkins, Mark Fleming, Brian Fox, Greg Pearson, Ken Van Ooyen, George Miketa, Nate Mailander,
Chris Whitehair, Jess Sweley, Matt Spyers and Lura Lentz.
“knowledge
of the Seller,” “Seller’s knowledge” or any other similar knowledge qualification in this Agreement
means the actual knowledge of the individuals set forth in Section 1.01(a) of the Disclosure Schedule.
“Legacy
Group” means (i) with respect to U.S. federal income Taxes, any affiliated group of corporations (as defined in Section
1504(a) of the Code) of which any Purchased Subsidiary was a member (other than a Seller Group) and (ii) with respect to any other
Taxes, any consolidated, combined, unitary or other group of which any Purchased Subsidiary was a member (other than a Seller
Group).
“Liability”
means any liability, cost, expense, debt or obligation of any kind, character, or description, and whether known or unknown, accrued,
absolute, contingent or otherwise, and regardless of when asserted or by whom.
“Lien”
means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest or encumbrance in respect
of such property or asset.
“Material
Adverse Effect” means any change, effect, development, circumstance, event or condition that, individually or together
with any other change, effect, development, condition, circumstance, event or condition, has a material adverse effect on (i)
the business, assets, properties, condition (financial or otherwise) or results of operations of the Purchased Subsidiaries, taken
as a whole, or (ii) the ability of the Seller or the Purchased Subsidiaries to timely perform their respective obligations under
this Agreement or to timely consummate the transactions contemplated by this Agreement on or prior to the End Date, except for
any such change, effect, development, circumstance, event or condition resulting from or arising in connection with (A) changes
in the financial or securities markets, including in interest rates or currency exchange rates, (B) changes in economic, regulatory
or political conditions generally, (C) changes or conditions affecting generally the industries in which the Purchased Subsidiaries
operates, (D) changes in Applicable Law, GAAP or other applicable accounting or regulatory standards or principles, or in authoritative
interpretations thereof, (E) acts of war, sabotage or terrorism, or cyberattacks or any escalation or worsening thereof, (F) the
announcement of this Agreement or pendency or consummation of the transactions contemplated hereby, or any facts or circumstances
relating to Buyer, including the impact of any of the foregoing on the relationships, contractual or otherwise, of the Purchased
Subsidiaries with third parties, (G) any
failure of the Purchased Subsidiaries to meet any internal, published or industry financial
estimates, forecasts or projections for any period (it being understood that any change, effect, development, circumstance, event
or condition that has contributed to such failure may be taken into account in determining whether there has been, or would reasonably
be expected to be, a Material Adverse Effect, unless it is otherwise excluded from the definition thereof pursuant to a clause
other than this clause (G)), (H) seasonal fluctuations affecting the Purchased Subsidiaries, (I) changes attributable to actions
or omissions by or on behalf of Buyer or any of its Affiliates, (J) any actions taken or omitted to be taken by Seller or any
of its Affiliates that are required or expressly contemplated to be taken pursuant to this Agreement, (K) the failure of Buyer
to consent (or timely consent) to the taking of an action (or omission of an action) by Seller or any of its Affiliates as a result
of Buyer’s consent rights pursuant to Section 5.01,
or (L) earthquakes, floods, hurricanes, tornadoes, natural disasters or other “acts of God”; provided, however,
that in the case of clauses (A) through (E) and (L) any such change, effect, development, circumstance, event or condition shall
nevertheless be considered as constituting or contributing to a Material Adverse Effect to the extent such change, effect, development,
circumstance, event or condition, individually or in the aggregate, has a disproportionate, materially adverse effect on the business,
assets, properties, condition (financial or otherwise) or results of operations of the Purchased Subsidiaries, taken as whole,
relative to other companies operating in the same industry as the Purchased Subsidiaries.
“Multiemployer
Plan” means a “multiemployer plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA to which (i)
any Purchased Subsidiary contributes on behalf of any employee or (ii) any ERISA Affiliate of any Purchased Subsidiary contributes
on behalf of any Business Employee.
“Pending
Tax Matter” means those audits, investigations, and controversies set forth on Section
3.19 of the Disclosure Schedule.
“Person”
means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization,
including a Governmental Authority.
“Post-Closing
Tax Period” means any Tax period beginning after the Closing Date; and, with respect to a Straddle Tax Period, the portion
of such Tax period beginning after the Closing Date.
“Post-Closing
Tax Representations” means those representations and/or warranties contained in Sections 3.19(b),
(e), (f),
(g), (k),
(m), (n),
(r), (s)
and (t) and Section
3.17(o).
“Pre-Closing
Tax Period” means any Tax period ending on or before the Closing Date; and, with respect to a Straddle Tax Period, the
portion of such Tax period ending on the Closing Date.
“Pre-Closing
Transactions” means the transactions described in Section 1.01(b) of the Disclosure Schedule.
“Purchased
Subsidiaries” means the Purchased Company and American Italian Pasta Co., 0808414 B.C. Ltd., BFG Canada Ltd., Carriage
House Companies, Inc., Cottage Bakery, Inc., IAPC Holding B.V., Linette Quality Chocolates, Inc., Nutcracker Brands, Inc., Pasta
Lensi, S.r.l., Ralcorp Frozen Bakery Products, Inc. and Western Waffles Corp.
“Purchased
Subsidiary Benefit Plan” means a Benefit Plan that is, or as of the Closing will be, sponsored, maintained or entered
into by a Purchased Subsidiary.
“Purchased
Subsidiary Employee” means any Business Employee who, as of immediately prior to the Closing Date, is Employed by a
Purchased Subsidiary.
“Reduction
Fee” is the fee, if any, required to be paid by the Purchased Subsidiaries pursuant to that certain Office Lease Agreement,
dated as of September 26, 2011, by and between St. Louis BOA Plaza, LLC, as landlord, and Ralcorp Holdings, Inc., as tenant, with
respect to the property located at 800 Market Street, St. Louis, Missouri in order to reduce the premises leased thereunder by
a full floor as of October 31, 2016.
“Remedial
Action” means any investigation, remediation, clean-up, abatement, removal or, to the extent performed in connection
with any of the foregoing, monitoring of Hazardous Substances.
“Representative”
means, with respect to any Person, such Person’s directors, officers, employees, counsel, financial advisors, auditors,
agents and other authorized representatives.
“Retained
Business” means any business now, previously or hereafter conducted by Seller or any of its Subsidiaries or Affiliates
other than the Business.
“Retained
Subsidiaries” means all of the direct and indirect Subsidiaries of Seller other than the Purchased Subsidiaries.
“Seller
Benefit Plan” means any Benefit Plan that is not a Purchased Subsidiary Benefit Plan.
“Seller
Group” means, (i) with respect to U.S. federal income Taxes, the affiliated group of corporations (as defined in Section
1504(a) of the Code) of which Seller is a member and (ii) with respect to any other Taxes, any consolidated, combined, unitary
or other group of which Seller or any of its Affiliates (other than a Purchased Subsidiary) is the common parent for Tax purposes.
“Seller
Retained Marks” means any and all Trademarks owned by Seller or any of its Affiliates (other than the Purchased Subsidiaries),
including “ConAgra”, “ConAgra Foods”, “H.K. Anderson”, “Kangaroo”, “Gelit”
and all variations thereof and any Trademarks confusingly similar thereto.
“Seller
Transaction Expenses” means all unpaid fees and expenses incurred at or prior to the Closing and payable by any of the
Purchased Subsidiaries to any Person in connection with the negotiation, execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby or under the other Transaction Documents, including, without duplication (i) the fees
and expenses of legal counsel, investment advisers and accountants, (ii) any fees related to any amounts payable to Centerview
Partners LLC and Goldman Sachs & Co. payable in connection with the transactions contemplated hereunder or under the other
Transaction Documents, and (iii) any costs, fees and expenses to complete the transactions contemplated by the Pre-Closing Transactions;
provided, however, that the Transaction Expenses shall not include any such fees, expenses or other amounts (x)
to the extent included in Closing Net Indebtedness or Closing Working Capital or paid at or prior to the Closing or (y) in respect
of the commitments made by Buyer or any of its Affiliates (including the Debt Financing).
“Shares”
means the common stock, par value $0.01 per share, of the Purchased Company.
“Software”
means all computer software and databases, including source code and object code and all files, data, scripts, application programming
interfaces, manuals, design notes, programmers’ notes, architecture, algorithms and other items and documentation related
thereto or associated therewith, and any derivative works, fixes, upgrades, updates, enhancements, new versions, previous versions,
new releases and previous releases thereof.
“Specific
Purchased Marks” means the Trademarks set forth on Section 1.01(c) of the Disclosure Schedule.
“Specific
Seller Retained Marks” means the Trademarks set forth on Section 1.01(d) of the Disclosure Schedule.
“Straddle
Tax Period” means a Tax period that begins on or before the Closing Date and ends thereafter.
“Subsidiary”
means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly
owned by such Person.
“Supply
Agreements” means the four supply agreements to be entered into between Buyer and Seller at the Closing in substantially
the forms attached as Exhibit D hereto.
“Supporting
Documentation” means the files and analysis used by the Seller to prepare Exhibit A, a copy of which is attached as
Section 1.01(e) of the Disclosure Schedule.
“Tax”
means (i) any tax or other like assessment (including estimated taxes) or charge of any kind whatsoever (including withholding
on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any
Governmental
Authority responsible for the imposition of any such tax (domestic or foreign) (a “Taxing Authority”),
(ii) in the case of any of the Purchased Subsidiaries, any liability for any Combined Tax and (iii) in the case of any of the
Purchased Subsidiaries, any liability for the payment of any amount of the type described in clause (i) as a result of being or
having been before the Closing a member of a Legacy Group.
“Tax
Asset” means any of those U.S. federal or state income Tax attributes set forth on Section
8.06(b) of the Disclosure Schedule (under the heading “Tax Asset”) that are actually carried forward for U.S. federal
or state income Tax purposes by a Purchased Subsidiary into a Post-Closing Tax Period.
“Tax
Return” means any report, return, statement, declaration, election, designation, document, communication, fulfillment
or information return, including any schedule or attachment thereto and any amendment thereof, filed or required to be filed or
fulfilled with any Taxing Authority with respect to Taxes (including estimated Taxes).
“Tax
Sharing Agreement” means any agreement or arrangement (whether or not written) binding any of the Purchased Subsidiaries
that provides for the allocation, apportionment, sharing or assignment of any Tax liability or benefit, or the transfer or assignment
of income, revenues, receipts, or gains for the purpose of determining any Person’s Tax liability that was entered into
(or assumed) on or prior to the Closing Date, provided that such term shall not include (i) customary commercial leases,
(ii) contracts entered into in the ordinary course of business that are not primarily related to Taxes or (iii) this Agreement
(agreements excluded under clause (i) or (ii) shall be, “Ordinary Course Tax Sharing Agreements”).
“Trademark
License Agreement” means a trademark license agreement to be entered into between Buyer and Seller at the Closing in
substantially the form attached as Exhibit C hereto.
“Transaction
Documents” means, collectively, this Agreement, the Transition Services Agreements, the Trademark License Agreement,
the Supply Agreements and the Co-Manufacturing Agreements.
“Transfer
Tax” means any excise, sales, use, value added, registration, stamp, recording, documentary, conveyancing, franchise,
property, transfer or other similar Tax.
“Transition
Services Agreements” means the two transition services agreements to be entered into between Buyer and Seller at the
Closing in substantially the forms attached as Exhibit B hereto.
“Treasury
Regulations” means the rules and regulations promulgated by the U.S. Treasury Department under the Code.
“Unfunded
Foreign Plan Obligations” means all unfunded liabilities for deferred compensation, pension benefits, pension schemes,
termination indemnities, and compensation
related to any period of time prior to the Closing with respect to all non-U.S. Business
Employees, except for the Trattamento Fine Rapporto and other liabilities reflected on the financial statements of the Purchased
Subsidiaries.
(b)
Each of the following terms is defined in the Section set forth opposite such term:
Term
|
|
Section
|
Accounting Referee |
|
2.04(c) |
Agreement |
|
Preamble |
Allocation Schedule |
|
8.04(c) |
Alternate Debt Financing |
|
7.12(b) |
Audited Financial Statements |
|
5.06(b) |
Balance Sheet |
|
3.07 |
Balance Sheet Date |
|
3.08 |
Basis Reduction Cap |
|
8.04(b) |
Business Employee |
|
3.17(k) |
Buyer |
|
Preamble |
Buyer DC Plan |
|
9.04 |
Buyer-Filed Tax Returns |
|
8.01(b) |
Buyer FSA Plan |
|
9.11 |
Buyer Fundamental Representations |
|
11.01 |
Buyer Indemnified Parties |
|
11.02(a) |
Buyer Tax Loss |
|
8.06(a) |
Buyer Welfare Plan |
|
9.09 |
Cap |
|
11.02(a) |
Closing |
|
2.02(a) |
Closing Purchase Price |
|
2.01 |
Closing Statement |
|
2.04(a) |
Competing Business |
|
5.03 |
Compliant |
|
7.12(e)(ii) |
Copyrights |
|
Definition of
“Intellectual Property” |
Covered Business Employee |
|
7.05(a) |
Current Representation |
|
7.06(a) |
Damages |
|
11.02(a) |
Debt Financing |
|
4.05(a) |
Debt Financing Commitments |
|
4.05(a) |
Deductible |
|
11.02(a) |
Designated Person |
|
7.06(a) |
Dispute Notice |
|
2.04(b) |
Dispute Period |
|
11.03(a) |
Disputed Item |
|
2.04(b) |
e-mail |
|
13.01 |
Employee List |
|
3.17(k) |
Term |
|
Section |
End Date |
|
12.01(b) |
Enforceability Exceptions |
|
3.02 |
Environmental Matters |
|
11.05 |
Estimated Closing Net Indebtedness |
|
2.03 |
Estimated Closing Statement |
|
2.03 |
Estimated Closing Working Capital Adjustment |
|
2.03 |
Estimated Seller Transaction Expenses |
|
2.03 |
Financial Information |
|
3.07 |
Financing Related Parties |
|
13.06 |
Financing Sources |
|
4.05(a) |
Indemnified Party |
|
11.03(a) |
Indemnifying Party |
|
11.03(a) |
Inside Basis |
|
8.04(b) |
Interim Financial Statements |
|
5.06(c) |
Leased Real Property |
|
3.13(c) |
Marketing Period |
|
7.12(e)(i) |
Material Contract |
|
3.10(b) |
Non-U.S. Benefit Plans |
|
3.17(a) |
Notice Period |
|
11.04(a) |
Ordinary Course Tax Sharing Agreements |
|
Definition of “Tax
Sharing Agreement” |
Owned Real Property |
|
3.13(a) |
Patents |
|
Definition of
“Intellectual Property” |
PBGC |
|
3.17(h) |
Permits |
|
3.15 |
Permitted Commitment Reduction |
|
4.05(a) |
Permitted Liens |
|
3.13(a) |
Post-Closing Representation |
|
7.06(a) |
Potential Contributor |
|
11.08 |
Pre-Closing Occurrence |
|
7.10 |
Purchased Company |
|
Recitals |
Purchased Policy |
|
7.10 |
Purchased Policy Claims |
|
7.10 |
Purchased Subsidiary Securities |
|
3.06(b) |
Real Property |
|
3.13(c) |
Real Property Leases |
|
3.13(b) |
Recovery Costs |
|
7.10 |
Redacted Fee Letter |
|
4.05(a) |
Registered Intellectual Property Rights |
|
3.14(a) |
Related Party Contract |
|
3.25 |
Term |
|
Section |
Required Financial Information |
|
5.06(c) |
Restricted Period |
|
5.03 |
Retained Policy |
|
7.10 |
Retained Policy Claims |
|
7.10 |
Ripon Closure |
|
9.16 |
Securities Financing |
|
4.05(a) |
Seller |
|
Preamble |
Seller Business Employee |
|
9.01 |
Seller DC Plan |
|
9.04 |
Seller Equity Awards |
|
9.03 |
Seller-Filed Tax Returns |
|
8.01(a) |
Seller FSA Plan |
|
9.11 |
Seller Fundamental Representations |
|
11.01 |
Seller Tax Loss |
|
8.06(b) |
Seller Tax Records |
|
8.02(b) |
Seller Welfare Plan |
|
9.09 |
Specified Matters |
|
11.06(b) |
Taxing Authority |
|
Definition of “Tax” |
Third Party Claim |
|
11.03(a) |
Top Customers |
|
3.21 |
Top Suppliers |
|
3.21 |
Trademarks |
|
Definition of
“Intellectual Property” |
Transaction Bonus |
|
9.15 |
Transferred Employee |
|
9.01 |
Trustee |
|
5.12 |
WARN |
|
9.12 |
Warranty Breach |
|
11.02(a)(i) |
Section 1.02.
Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and
“hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored
in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections,
Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used
in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular
term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”,
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words
“without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”,
“written” and comparable
terms refer to printing, typing and other means of reproducing words (including electronic
media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented
from time to time in accordance with the terms thereof. References to any Person include the successors and permitted assigns
of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including,
respectively. References to “law,” “laws” or to any Applicable Law shall be deemed to refer to such law
or Applicable Law as amended from time to time, except as otherwise specified herein, and to any rules or regulations promulgated
thereunder. All references to any time herein shall refer to Eastern Time. The parties have participated jointly in the negotiation
and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as jointly drafted by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provision of this Agreement.
Article
2
Purchase and Sale
Section 2.01.
Purchase and Sale of the Shares. Upon the terms and subject to the conditions of this Agreement, Seller agrees
to sell (or cause to be sold) to Buyer, and Buyer agrees to purchase from Seller, the Shares at the Closing. Seller shall transfer
and deliver (or cause to be transferred and delivered) to Buyer at the Closing valid title to such Shares free and clear of any
Lien. The purchase price for the Shares (the “Closing Purchase Price”) is an amount equal to (i) $2,700,000,000,
plus (ii) Estimated Closing Working Capital Adjustment, minus (iii) Estimated Closing Net Indebtedness, minus
(iv) the amount of Estimated Seller Transaction Expenses. The Closing Purchase Price shall be paid as provided in Section
2.02 and shall be subject to adjustment as provided in Section 2.05.
Section 2.02.
Closing. (a) The closing (the “Closing”) of the purchase and sale of the Shares
hereunder shall take place at 10:00 a.m., New York City time at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue,
New York, New York, on the later of (i) the third Business Day after the date on which all of the conditions set forth in Article
10 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to
the extent permitted by Applicable Law, waiver of those conditions by the party or parties entitled to the benefit thereof) have
been satisfied (or, to the extent permitted by Applicable Law, waived), and (ii) the third Business Day after the final day of
the Marketing Period, or at such other time or place as Buyer and Seller may agree.
(b)
At the Closing:
(i)
Buyer shall:
(A)
deliver to Seller a duly executed counterpart to each other Transaction Document to which Buyer or any Affiliate thereof
is a party;
(B)
to the extent requested by Seller, on behalf of Seller or the Purchased Subsidiaries, as applicable, deliver to the payees
of the Seller Transaction Expenses, such portion of the Seller Transaction Expenses set forth and in accordance with the final
bills and wire transfer instructions delivered by Seller to Buyer no later than five Business Days prior to the Closing; and
(C)
deliver to Seller, in exchange for the Shares, an amount equal to the Closing Purchase Price in immediately available funds
by wire transfer to an account or accounts designated by Seller, by notice to Buyer; and
(ii)
Seller shall deliver to Buyer:
(A)
a duly executed counterpart to each other Transaction Document to which Seller or any Affiliate thereof is a party;
(B) a
statement, signed under penalties of perjury and dated no more than 30 days prior to the Closing Date, that satisfies the
requirements of Treasury Regulation Section 1.1445-2(b)(2) and confirms that Seller is not a “foreign person” as
defined in Section 1445 of the Code;
(C) duly
executed resignation letters, effective as of the Closing, from each director and officer of the Purchased Subsidiaries, in
their capacity as such, identified in writing by Buyer to Seller at least 10 Business Days prior to the Closing, or
evidence of such persons’ removal from such positions;
(D)
a certificate of an executive officer of Seller certifying to a true and correct copy of the resolutions of Seller approving
the transactions contemplated by this Agreement and that such resolutions are in full force and effect; and
(E)
certificates for the Shares duly endorsed or accompanied by stock powers duly endorsed in blank, with any required transfer stamps
affixed thereto.
Section 2.03.
Pre-Closing Estimates. No later than five Business Days prior to the scheduled Closing Date, Seller shall cause
to be prepared and delivered to Buyer a statement (the “Estimated Closing Statement”) setting forth
Seller’s good faith estimate of (i) the Closing Working Capital Adjustment (“Estimated Closing Working Capital
Adjustment”), (ii) Closing Net Indebtedness (“Estimated Closing Net Indebtedness”), (iii) the amount
of Seller Transaction Expenses (“Estimated Seller Transaction Expenses”) and (iv) the Closing Purchase Price
based thereon (in each case which estimates shall be subject to the review and reasonable comments of Buyer, which Seller shall
consider in good faith), which Estimated Closing Statement shall be substantially in the form attached as Exhibit A hereto
and prepared in accordance with GAAP consistently applied with the accounting methods used in Exhibit A and its Supporting
Documentation.
Section 2.04.
Purchase Price Adjustment Amount Calculation. (a) As promptly as practicable, but no later than 90 days after the
Closing Date, Seller shall cause to be prepared and delivered to Buyer a statement (the “Closing Statement”),
along with supporting documentation in a form consistent with the Supporting Documentation, setting forth Seller’s calculation
of (i) Closing Working Capital, (ii) Closing Net Indebtedness, (iii) Seller Transaction Expenses, and (iv) the Closing Purchase
Price based thereon, which Closing Statement shall be substantially in the form attached as Exhibit A hereto and prepared
in accordance with GAAP consistently applied with the accounting methods used in Exhibit A and its Supporting Documentation.
(b)
If Buyer disagrees with Seller’s calculation of the Closing Working Capital Adjustment, Closing Net Indebtedness,
Seller Transaction Expenses or the Closing Purchase Price as set forth in the Closing Statement, Buyer may, within 45 days after
delivery of the Closing Statement, deliver a written notice to Seller (a “Dispute Notice”) disagreeing with
such calculation and which specifies Buyer’s calculation of such items and in reasonable detail Buyer’s grounds for
such disagreement. The Dispute Notice shall specify those items or amounts as to which Buyer disagrees (each, a “Disputed
Item”), and Buyer shall be deemed to have agreed with all other items and amounts contained in the Closing Statement.
If Buyer notifies Seller that Buyer agrees with the Closing Statement within 45 days after receipt thereof or fails to deliver
a Dispute Notice within such 45 day period, the Closing Statement delivered by Seller shall be conclusive and binding on Seller
and Buyer and the parties shall be deemed to have agreed thereto, in the first case, on the date Seller receives the notice and,
in the second case, on such 45th day.
(c)
If Buyer duly delivers a Dispute Notice, Buyer and Seller shall, during the 30 days following such delivery, use their
reasonable best efforts to reach agreement on each Disputed Item in order to determine the Closing Purchase Price. If Buyer and
Seller are unable to reach such agreement during such period, they shall promptly thereafter jointly retain a nationally recognized
accounting firm, who shall not have any material relationship with Buyer or Seller (the “Accounting Referee”)
and cause such Accounting Referee promptly to review this Agreement and the Disputed Items for the purpose of calculating the
Closing Purchase Price. In making such calculation, the Accounting Referee shall consider only those Disputed Items as to which
Buyer and Seller have failed to reach agreement. Buyer and Seller shall use commercially reasonable efforts to cause the Accounting
Referee to complete its work and render its determination within 30 days of its engagement. The Accounting Referee shall deliver
to Buyer and Seller, as promptly as practicable, a written report setting forth such calculation. Such report shall be final and
binding upon Buyer and Seller. The cost of such review and report shall be borne (i) by Seller if Seller is awarded less than
50% of the sum of all Disputed Items submitted to the Accounting Referee, (ii) by Buyer if Buyer is awarded less than 50% of the
sum of all Disputed Items submitted to the Accounting Referee and (iii) otherwise equally by Buyer and Seller.
(d)
Buyer and Seller agree that they will, and agree to cause their respective independent accountants and Subsidiaries to,
cooperate and assist in the preparation of the Closing Statement and the calculation of the Closing Purchase Price and in the
conduct of the
reviews referred to in this Section 2.04, including the making available to the extent necessary
of books, records, work papers and personnel.
(e)
No fact or event, including any market or business development, occurring on or after the Closing, and no change in GAAP
or Applicable Law after the date hereof, shall be taken into consideration in the calculations to be made pursuant to Section
2.04.
Section 2.05.
Adjustment of Closing Purchase Price. (a) If the Purchase Price Adjustment Amount is positive, Buyer shall pay to
Seller, in the manner provided in Section 2.05(b), the amount thereof. If the Purchase Price Adjustment Amount
is negative, Seller shall pay to Buyer, in the manner provided in Section 2.05(b), the amount thereof. The “Purchase
Price Adjustment Amount” means an amount equal to (i) (x) Final Closing Working Capital Adjustment minus (y)
Estimated Closing Working Capital Adjustment, minus (ii) (x) Final Closing Net Indebtedness minus (y) Estimated
Closing Net Indebtedness, minus (iii) (x) Final Seller Transaction Expenses minus (y) Estimated Seller Transaction Expenses.
“Final Closing Working Capital”, “Final Closing Net Indebtedness” and “Final Seller Transaction
Expenses” mean Closing Working Capital, Closing Net Indebtedness, and Seller Transaction Expenses respectively, (x) as set
forth in the Closing Statement if Buyer does not duly deliver a timely Dispute Notice or (y) if a timely Dispute Notice is delivered
(A) as agreed between Seller and Buyer pursuant to Section 2.04(c) or (B) in the absence of such agreement, as
determined by the Accounting Referee pursuant to Section 2.04(c); provided that in no event shall Final
Closing Working Capital, Final Closing Net Indebtedness or Final Seller Transaction Expenses be higher than the highest value
or lower than the lowest value for such item claimed by either party in the Dispute Notice or Closing Statement, as applicable.
(b)
Any payment pursuant to this Section 2.05 shall be made by Buyer or Seller, as the case may be, at a mutually
convenient time within five Business Days after the determination of the Purchase Price Adjustment Amount pursuant to Section
2.04, by wire transfer of immediately available funds to such account or accounts of such other party as may be designated by
such other party. The amount of any payment to be made pursuant to this Section 2.05 shall bear interest on a
daily basis, from and including the Closing Date, to but excluding the date of payment, at a rate per annum equal to the rate
of interest publicly announced by JPMorgan Chase Bank from time to time as its prime rate in effect at its office located at 270
Park Avenue, New York, New York in effect from time to time during the period from the date such payment was required to be made
hereunder, to the date of payment. Such interest shall be payable at the same time as the payment to which it relates and shall
be calculated on the basis of a year of 365 days and the actual number of days elapsed.
Article
3
Representations and Warranties of Seller
Except as
set forth in the Disclosure Schedule (but subject to Section
13.12), Seller represents and warrants to Buyer as of the date hereof and on the Closing Date that:
Section 3.01.
Corporate Existence and Power. Seller is a corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all corporate powers and authority and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its business in all material respects as and to the extent
now conducted.
Section 3.02.
Corporate Authorization. The execution, delivery and performance by Seller of this Agreement and the consummation
by Seller of the transactions contemplated hereby are within Seller’s corporate powers and have been duly authorized by
all necessary corporate action on the part of Seller. The execution, delivery and performance of each other Transaction Document
to which Seller or any of its Affiliates is a party, by Seller and any such Affiliates, and the consummation by Seller of the
transactions contemplated thereby, are within Seller’s and any such Affiliate’s corporate powers and have been, or
will be prior to their execution, delivery and performance, duly authorized by all necessary corporate action on the part of Seller
and any such Affiliates. Assuming due and valid execution by each other party hereto, this Agreement constitutes a valid and binding
agreement of Seller, enforceable against Seller in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity
(collectively, the “Enforceability Exceptions”)). Assuming due and valid execution by each other party thereto,
each other Transaction Document to which Seller or any of its Affiliates is a party constitutes or, upon the execution and delivery
thereof by Seller and any such Affiliate, shall constitute, a valid and binding agreement of Seller and any such Affiliate, enforceable
against Seller and any such Affiliate in accordance with its terms, subject to the Enforceability Exceptions.
Section 3.03.
Governmental Authorization. The execution, delivery and performance by Seller of this Agreement and the other
Transaction Documents to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby
require no action by or in respect of, or filing with, any Governmental Authority, other than (i) compliance with any applicable
requirements of the HSR Act or the Competition Act; (ii) compliance with any other applicable Competition Laws; (iii) compliance
with any applicable requirements of the Securities Exchange Act of 1934; and (iv) any such action or filing as to which the
failure to make or obtain, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 3.04.
Noncontravention. The execution, delivery and performance by Seller of this Agreement and the other Transaction
Documents to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby do not and
will not, (i) violate the certificate of incorporation or bylaws of Seller, (ii) assuming compliance with the matters
set forth in Section 3.03, violate any Applicable Law, (iii) require any consent, notice or other action
by any Person under, result in a violation or breach of the terms, conditions or provisions of, constitute a default under, or
give rise to any right of termination, cancellation or acceleration of any right or obligation of Seller or to a loss of any benefit
to which Seller or any Purchased Subsidiary is entitled under any provision of any agreement or other instrument
binding upon
Seller or any Purchased Subsidiary or (iv) result in the creation or imposition of any Lien on any Shares or asset of any
Purchased Subsidiary, except for any Permitted Liens, with such exceptions, in the case of each of clauses (ii) through (iv),
as, individually or in the aggregate, would not reasonably be expected to be material to the Purchased Subsidiaries taken as a
whole.
Section 3.05.
Ownership of Shares. The authorized capital stock of the Purchased Company consists of 100 Shares (of which 100
are outstanding as of the date hereof). All of the Shares have been duly authorized, are validly issued, fully paid and non assessable,
and are owned of record and beneficially by Seller, free and clear of any Lien other than Permitted Liens. Seller will transfer
and deliver (or cause to be transferred and delivered) to Buyer, on the Closing Date, good and valid title to such Shares free
and clear of any Lien other than Permitted Liens. Except for this Agreement, there are no binding agreements, arrangements, warrants,
options, puts, rights or other commitments, of any character or to which Seller is a party relating to the issuance, sale, purchase,
redemption, conversion, exchange, registration, voting or transfer of any of the Shares.
Section 3.06.
Purchased Subsidiaries. (a) Each Purchased Subsidiary is duly organized and validly existing
under the laws of its jurisdiction of organization and has all organizational powers and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations,
permits and approvals the absence of which, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(b)
The authorized and issued and outstanding shares, membership interests or other voting or equity interests of the Purchased
Subsidiaries are set forth in Section 3.06(b) of the Disclosure Schedule. Such issued and outstanding shares, membership
interests or other voting or equity interests of the Purchased Subsidiaries are owned beneficially and of record directly or indirectly
by Seller (in the case of the Purchased Company) or the Purchased Company (in the case of any other Purchased Subsidiary) free
and clear of any Lien other than Permitted Liens, and have been duly authorized and validly issued and are fully paid and non
assessable. Except for the securities contemplated by the previous sentence, there are no outstanding (i) shares of capital stock
or voting securities of any Purchased Subsidiary, (ii) securities of any Purchased Subsidiary convertible into or exchangeable
for shares of capital stock or voting securities of such Purchased Subsidiary or (iii) options or other rights to acquire from
any Purchased Subsidiary, or other obligations of the Purchased Subsidiary to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of such Purchased Subsidiary (the foregoing, collectively,
“Purchased Subsidiary Securities”). There are no outstanding obligations of any Purchased Subsidiary to repurchase,
redeem or otherwise acquire any outstanding Purchased Subsidiary Securities.
Section 3.07.
Financial Statements. Section 3.07 of the Disclosure Schedule contains true, correct
and complete copies of the (i) unaudited consolidated balance sheets of the Purchased Subsidiaries as of May 25, 2014 and May
31, 2015, and the related unaudited
statements of income of the Purchased Subsidiaries for the years then ended and (ii) the unaudited
consolidated balance sheet of the Purchased Subsidiaries as of August 30, 2015 (the “Balance Sheet”) and the
related unaudited statement of income of the Business for the quarter then ended (the foregoing clauses (i) and (ii),
collectively, the “Financial Information”). The Financial Information has been compiled by Seller from
Seller’s books and records that (i) is subject to the controls and procedures of Seller’s accounting systems and (ii)
was prepared in accordance with the internal accounting policies used by Seller, which are consistent with GAAP in all material
respects. The Financial Information presents fairly in all material respects the information purported to be represented thereby
as of the relevant dates thereof and for the periods covered thereby, except that the Financial Information gives effect to the
Pre-Closing Transactions (other than the divestiture of the Chicago and Grand Rapids facilities). As of the date of delivery by
Seller to Buyer and as of the Closing Date, the Required Financial Information delivered to Buyer in accordance with Section
5.06 will have been prepared in accordance with GAAP applied on a consistent basis and will fairly present in all material respects
(except in the case of the Interim Financial Information, subject to year-end adjustments) the financial position of the Purchased
Subsidiaries as of the dates thereof and the results of operations of the Purchased Subsidiaries for the periods involved, except
that the Required Financial Statements give effect to the Pre-Closing Transactions. As of the date of delivery by Seller to Buyer
and as of the Closing Date, the Interim Financial Statements will have been reviewed by Seller’s independent auditors as
provided in the procedures specified by the AICPA in AU 722.
Section 3.08.
Absence of Certain Changes. Since August 30, 2015 (the “Balance Sheet Date”):
(a)
the business of the Purchased Subsidiaries has been conducted in the ordinary course consistent with past practices,
(b)
there has not been any event, occurrence, development or state of circumstances or facts that, individually or in the aggregate,
has had or would reasonable be expected to have a Material Adverse Effect; and
(c)
the Purchased Subsidiaries have not taken any action that, if taken during the period from the date of this Agreement through
the Closing Date without Buyer’s consent, would constitute a breach of clauses (a), (h), (k)
through (n) or (q) of Section 5.01.
Section 3.09.
No Undisclosed Material Liabilities. There are no liabilities of the Purchased Subsidiaries of any kind, asserted
or unasserted, known or unknown, whether absolute, contingent, accrued or otherwise, other than (a) liabilities provided
for or disclosed in the Balance Sheet; (b) liabilities incurred in the ordinary course of business since the Balance Sheet Date;
(c) liabilities pursuant to or arising under any agreements, instruments or other matters disclosed in this Agreement or the Disclosure
Schedule or the other Transaction Documents; (d) liabilities arising under executory contracts or instruments of any of the
Purchased
Subsidiaries; and (e) other undisclosed liabilities which, individually or in the aggregate, are not material to the Purchased
Subsidiaries taken as a whole.
Section 3.10.
Material Contracts. (a) As of the date of this Agreement none of the Purchased Subsidiaries are party to
or bound by:
(i)
any lease (whether of real or personal property) requiring (A) annual rentals of $500,000 or more or (B) aggregate payments
by the Purchased Subsidiaries of $5,000,000 or more, in each case, that cannot be terminated on not more than 180 days’
notice without payment by the Purchased Subsidiaries of any material penalty;
(ii)
any agreement (excluding statements of work and purchase orders) for the purchase of materials, supplies, goods, services,
equipment or other tangible assets requiring either (A) annual payments by the Purchased Subsidiaries of $5,000,000 or more
or (B) aggregate payments by the Purchased Subsidiaries of $15,000,000 or more (assuming no renewal or extension, whether pursuant
to an “evergreen” provision or otherwise), in each case, that cannot be terminated on not more than 30 days’
notice without payment by the Purchased Subsidiaries of any material penalty;
(iii)
any agreement (excluding statements of work, customer templates, customer system generated orders and purchase orders)
for the sale of any services or products which involved the payment to any Purchased Subsidiary of more than $5,000,000 in the
fiscal year ended May 31, 2015 or is reasonably expected to involve the payment to any Purchased Subsidiary of more than $5,000,000
in the fiscal year ending May 31, 2016 (assuming no renewal or extension, whether pursuant to an “evergreen” provision
or otherwise);
(iv)
any agreement under which a Purchased Subsidiary has, directly or indirectly, made any (A) advance, loan or extension of
credit to any Person (other than a Purchased Subsidiary), in each case other than in the ordinary course of business, or (B) capital
contribution to, or investment in, any Person (other than in any other Purchased Subsidiary) in excess of $500,000;
(v)
any agreements relating to the incurrence, assumption or guarantee of any Indebtedness for borrowed money with outstanding
principal amount in excess of $500,000;
(vi)
any individual agreement for capital expenditures involving payments of more than $500,000 individually or in the aggregate
after the date hereof;
(vii)
any material partnership, joint venture or other similar agreement or arrangement;
(viii)
any agreement that limits the freedom of the Purchased Subsidiaries to compete in any line of business or with any Person
or in any geographic area and which would so limit the freedom of the Purchased Subsidiaries after the Closing Date;
(ix)
any material agreement between the Purchased Subsidiaries, on the one hand, and Seller or any Retained Subsidiary, on the
other hand, in each case involving amounts in excess of $500,000;
(x)
any agreement pursuant to which a Purchased Subsidiary has acquired or disposed of any material business (whether by merger,
sale of stock, sale of assets or otherwise) entered into during the five-year period immediately preceding the date hereof, in
each case involving amounts in excess of $1,000,000;
(xi)
any agreement or covenant not to sue relating to the development, ownership, use or enforcement of any material Intellectual
Property Rights (excluding non-exclusive licenses granted to customers in the ordinary course of business and commercially available
off-the-shelf Software having a replacement cost of less than $500,000);
(xii)
any material agreement relating to the IT Assets, including any material agreement for telecommunication services, data
center services, disaster recovery services, or other similar services, in each case, that provides for the payment of compensation,
fees or payments in excess of $500,000 in the 2015 calendar year;
(xiii)
any employment agreements, change of control agreements, retention agreements or severance agreements (exclusive of generally
applicable severance policy) with any Key Employee;
(xiv)
any agreements with any individual consultant or independent contractor that provide services to the Business that provide
for the payment to such Person of compensation, fees or payments in excess of $250,000 in the 2015 calendar year;
(xv)
any agreements relating to any staffing companies, temporary employment agencies, or similar companies that provide services
to the Business that provide for the payment of compensation, fees or payments in excess of $500,000 in the 2015 calendar year;
and
(xvi)
any non-competition, non-solicitation and confidentiality agreements with any Business Employee whose current base salary
exceeds $250,000 in the 2015 calendar year (other than agreements that are substantially similar to the Purchased Subsidiaries’
form of non-competition, non-solicitation and confidentiality agreement).
(b)
Each agreement, contract, lease, arrangement or commitment required to be disclosed pursuant to Section
3.10(a) (each, a “Material Contract”) is a valid and binding agreement of the Purchased Subsidiary party thereto
and is in full force and effect, and none of
such Purchased Subsidiary or, to the knowledge of the Seller as of the date hereof,
any other party thereto is in default or breach under the terms of any such Material Contract, except in each case, as, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 3.11.
Litigation. As of the date of this Agreement, (a) no Purchased Subsidiary is subject to any outstanding injunction,
judgment, order, decree or ruling issued by any Governmental Authority, and (b) there are no Actions pending against or, to the
knowledge of Seller, threatened against, any Purchased Subsidiary, (i) that seek as the primary remedy the imposition of equitable
remedies against any Purchased Subsidiary or (ii) that would reasonably be expected to result in liability to the Purchased Subsidiaries
in excess of $50,000. There is no claim, action, suit, inquiry, proceeding, complaint, charge, hearing, grievance or arbitration
in excess of $50,000 pending or, to the knowledge of Seller, threatened against or affecting such Seller that, if determined or
resolved adversely to Seller, would have or would reasonably be expected to have a Material Adverse Effect. As of the date of
this Agreement, there is no Action pending or, to the knowledge of the Seller, threatened against or affecting Seller that, if
determined or resolved adversely to Seller, would have or would reasonably be expected to have a Material Adverse Effect. There
is no pending or, to the knowledge of the Seller, threatened material Action alleging that the Purchased Subsidiaries’ product
labels, product claims or product advertisements are misleading to consumers or the public.
Section 3.12.
Compliance with Laws. Each Purchased Subsidiary is, and since May 31, 2015 has been, in compliance with all
Applicable Laws, including Applicable Laws administered or issued by the U.S. Food and Drug Administration, the U.S. Department
of Agriculture or Health Canada relating specifically to the use, manufacture, packaging, licensing, labeling, distribution, or
sale of any food products, including with respect to nomenclature and labeling, registration and record keeping in respect of
any products of the Business, except in each case as would not reasonably be expected to be material to the applicable Purchased
Subsidiary. Since May 31, 2015, no Purchased Subsidiary has received any written notice relating to any products of the Business
from any Governmental Authority indicating that it is or may be in violation of any Applicable Law. To the knowledge of the Seller,
no Purchased Subsidiary is under investigation with respect to the violation of any Applicable Law. Since January 29, 2013, none
of the Purchased Subsidiaries or, to the knowledge of the Seller, any of their respective directors, officers, employees or agents,
with respect to the Business, (i) has used any funds for any unlawful contribution, endorsement, gift, entertainment or other
unlawful expense relating to political activity, (ii) has made any direct or indirect unlawful payment to any foreign or domestic
official or employee of a Governmental Authority, (iii) has violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977 and (iv) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment
to any Person, and none of the Purchased Subsidiaries or, to the knowledge of the Seller, any of their respective directors, officers,
employees or agents, with respect to the Business, is, or is directly or indirectly owned or controlled by, any Person that is
currently the subject of any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury.
Section 3.13.
Properties; Liens. (a) Section 3.13(a) of the Disclosure Schedule set forth a complete and
accurate list, with property addresses and the names of the record owners, of all real property owned by the Purchased Subsidiaries
(the “Owned Real Property”). A Purchased Subsidiary holds good, valid and marketable fee simple title
to each parcel of Owned Real Property, and good title to all tangible personal property owned by such entity, in each case, free
and clear of all Liens other than Permitted Liens. “Permitted Liens” means, collectively: (i) Liens
disclosed in Section 3.13(a) of the Disclosure Schedule; (ii) Liens disclosed on the Balance Sheet or notes thereto
or securing liabilities reflected on the Balance Sheet or notes thereto and Liens incurred since the Balance Sheet Date in the
ordinary course of business for amounts owed not to exceed $50,000; (iii) Liens for Taxes, assessments and similar charges that
are not yet delinquent, or that are being contested in good faith by appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP; (iv) mechanic’s, materialman’s, carrier’s, repairer’s,
worker’s, warehouseman’s and other similar Liens arising or incurred in the ordinary course of business and that relate
to obligations that are not yet more than 30 days past due or, if more than 30 days past due, are being contested in good faith
by appropriate proceedings; (v) statutory or contractual Liens of landlords; (vi) leases, licenses or other agreements
for the occupancy of Owned Real Property that are in effect as of the date hereof or entered into after the date hereof in the
ordinary course of business and subject to the terms of this Agreement; (vii) zoning, building codes and other land use laws regulating
the use or occupancy of the Real Property or the activities conducted thereon which are imposed by any Governmental Authority
which do not, individually or in the aggregate, materially interfere with the present use of the Real Property or materially impair
the value of the affected Real Property; (viii) any adverse circumstance affecting title to any Real Property that
would be disclosed by an accurate land survey of such Real Property; (ix) Liens constituting non-exclusive licenses or sublicenses
in respect of Intellectual Property Rights granted in the ordinary course of business; (x) purchase money Liens for personal
property and Liens securing rental payments under capital lease arrangements; (xi) Liens which will be extinguished or released
in full as of or prior to the Closing; or (xii) restrictive covenants, easements, imperfections or irregularities of title
which do not, individually or in the aggregate, materially interfere with the present use of the Real Property or materially impair
the value of any Real Property. To Seller’s knowledge, no adverse circumstance exists affecting title to any Real Property
that would be disclosed by an accurate land survey of such Real Property, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. All facilities located on or comprising the Owned Real Property and
required for the operation of the Business as currently conducted (i) have been operated and maintained in all material respects
in accordance with all Applicable Law, (ii) are or may be supplied with utilities and other services reasonably necessary for
the operation of such facilities as currently conducted, (iii) are in good condition and the systems located therein are in good
working order and condition, and (iv) do not encroach on any adjoining property owned by others or public rights of way, except
as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There are no outstanding
options, rights of first offer or rights of first refusal to purchase any Owned Real Property or any portion thereof or interest
therein. There are no pending, or to Seller’s
knowledge, threatened proceedings by any Governmental Authority to condemn,
take, expropriate or demolish any Owned Real Property or part thereof.
(b)
Seller has made available to Buyer copies of all deeds, title policies and surveys regarding the Owned Real Property in
Seller’s possession or control. Seller has made available to the Buyer correct and complete copies of all leases, lease
guaranties, subleases, and other material agreements for the leasing, use or occupancy of, or otherwise granting a right in or
relating to the Leased Real Property (collectively, the “Real Property Leases”).
(c)
Section 3.13(c) of the Disclosure Schedule sets forth a list by street address of all the real property that
is leased, subleased or occupied pursuant to similar agreements by the Purchased Subsidiaries (the “Leased Real Property”
and, together with the Owned Real Property, the “Real Property”). A Purchased Subsidiary has a valid and enforceable
leasehold interest in each Real Property Lease free and clear of all Liens other than Permitted Liens. All facilities located
on or comprising the Leased Real Property and required for the operation of the Business as currently conducted (i) have been
operated and maintained in all material respects in accordance with all Applicable Law, (ii) are or may be supplied with utilities
and other services reasonably necessary for the operation of such facilities as currently conducted, and (iii) are in good condition
and the systems located therein are in good working order and condition, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 3.14.
Intellectual Property. (a) Section 3.14(a) of the Disclosure Schedule contains a list of
all registrations and applications for registration or issuance of Patents, Trademarks, and Copyrights owned by the Purchased
Subsidiaries (the “Registered Intellectual Property Rights”). The Purchased Subsidiaries own all Registered
Intellectual Property Rights free and clear of any Lien, other than Permitted Liens. Each such item of Registered Intellectual
Property Rights that is material to the Business is, to the knowledge of the Seller, valid, subsisting and enforceable and no
such item of Registered Intellectual Property Rights has been abandoned or adjudged invalid or unenforceable. Each item of Registered
Intellectual Property Rights comprising a Trademark material to the Business is owned by the Purchased Subsidiaries and has been
used and is currently used in connection with the Business in a manner sufficient to avoid abandonment or cancellation of any
such Trademark. The Purchased Subsidiaries have used commercially reasonable efforts to police the quality of all products and
enforce adequate quality control measures to protect its rights in such Trademarks material to the Business, if any, that it has
licensed to others. All maintenance fees, annuity fees and renewal fee payments, and all renewal affidavits and other applicable
documents required to establish or maintain any material Registered Intellectual Property Right which are issued or pending have
been timely paid or filed with the appropriate Governmental Authority or other authorities, and, at least three Business Days
prior to the Closing Date, Seller shall have provided Buyer with a list of all such payments or filings that, as of 10 or fewer
Business Days prior to the Closing Date, will be due less than 90 days after the Closing.
(b)
The Seller, the Purchased Subsidiaries and the Retained Subsidiaries have used commercially reasonable efforts to maintain
all material Intellectual Property comprising trade secrets owned or used by any of the Purchased Subsidiaries in confidence.
To the knowledge of the Seller, no employee is in violation of any written agreement under which such employee assigns or is otherwise
obligated to assign to a Purchased Subsidiary all right, title and interest in and to any material Intellectual Property.
(c)
The Seller, the Purchased Subsidiaries and the Retained Subsidiaries have not, other than in the ordinary course of business
and to an extent not material to the Business, granted any licenses of any Intellectual Property used in connection with the Business
or entered into any other written agreements restricting the use by the Purchased Subsidiaries in any material respect of any
Intellectual Property owned, used or held for use in connection with the Business.
(d)
No Actions are pending or, to the knowledge of the Seller, threatened which challenge the validity or enforceability of
any rights in respect of any of the Registered Intellectual Property Rights or any other material Intellectual Property owned
by the Purchased Subsidiaries, or which allege that the Purchased Subsidiaries infringe or otherwise violate the Intellectual
Property of any third party. (i) The present conduct of the Business and present products and services of the Purchased Subsidiaries
do not infringe or violate any Intellectual Property Rights of any third party and (ii) the conduct of the Business and products
and services of the Purchased Subsidiaries since January 29, 2013 have not infringed or violated, any Intellectual Property Rights
of any third party, except in each case for any individual infringement or violation that does not, and would not reasonably be
expected to, result in a liability of any Purchased Subsidiary in excess of $500,000. To the knowledge of Seller, no third party
is infringing or violating any Registered Intellectual Property Right or any other Intellectual Property owned by any of the Purchased
Subsidiaries in any material respect.
(e)
To the knowledge of the Seller, the IT Assets are (i) adequate for, and operate and perform in all material respects in
accordance with their documentation and functional specifications and otherwise as required in connection with, the current operation
of the Business (taking into account the services to be provided pursuant to the other Transaction Documents) and (ii) free from
material bugs, defects, viruses and malware, and have not materially malfunctioned or failed within the past two years. Seller
and the Purchased Subsidiaries have used commercially reasonable efforts to implement backup, security and disaster recovery measures
and technology consistent with industry standards and, to the knowledge of the Seller, no Person has obtained unauthorized access
to any IT Assets.
(f)
Assuming receipt of all required consents, approvals and authorizations, on the Closing Date the Purchased Subsidiaries
will own free and clear of any Lien, other than Permitted Liens, or have the right to use all material Intellectual Property and
all material IT Assets necessary to conduct the Business in the same manner as historically and currently conducted by the Seller
and its Affiliates (taking into account all other Transaction Documents).
Section 3.15.
Permits. The Purchased Subsidiaries possess all material governmental permits, approvals, orders, authorizations,
consents, licenses, certificates, franchises, exemption of, or filings or registrations with, or issued by, any Governmental Authority
necessary for the operation of the Purchased Subsidiaries’ business as currently conducted (the “Permits”).
The Permits are valid and in full force and effect. Seller is not in default or violation, and no condition exists that with notice
or lapse of time or both would constitute a default or violation, under the Permits, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 3.16.
Finders’ Fees. Except for Centerview Partners LLC and Goldman Sachs & Co., whose fees shall be
paid by Seller, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized
to act on behalf of Seller who might be entitled to any fee or commission in connection with the transactions contemplated by
this Agreement or any other Transaction Document.
Section 3.17.
Employee Benefit Plans. (a) Section 3.17(a) of the Disclosure Schedule contains a
complete and accurate list of each Purchased Subsidiary Benefit Plan, material Seller Benefit Plan and each Multiemployer Plan
, including the sponsor of each such Benefit Plan and the contributing employer of each such Multiemployer Plan, and whether such
Benefit Plan is primarily for the benefit of Business Employees primarily based outside of the U.S. (the “Non-U.S. Benefit
Plans”). For each material Seller Benefit Plan, Seller has provided or made available to Buyer a correct and complete
summary or copy of such plan (provided that complete plan documents and all amendments thereto and the most recent determination
or opinion letter received from the IRS have been provided with respect to any Benefit Plan that is subject to Section
9.04). For each Purchased Subsidiary Benefit Plan, and each plan or arrangement included on Section 9.05 of the Disclosure
Schedule, to the extent applicable, Seller has provided or made available to Buyer: (i) a correct and complete copy of such plan
(or in the case of individual agreements that are based on a form agreement, a copy of such form), including all amendments thereto,
and in the case of any unwritten plan, a summary thereof, (ii) the most recently filed annual return/report (Form 5500), including
all schedules thereto, (iii) the most recent determination or opinion letter received from the IRS for Purchased Subsidiary Benefit
Plans intended to be qualified under the Code and any determination letter application that is currently in progress, (iv) the
most recent actuarial valuation and financial statement, (v) all material reports, letters or other communications received since
January 29, 2013 from any Governmental Authority regarding the Purchased Subsidiary Benefit Plan, (vi) all trust agreements, insurance
contracts, and other funding agreements (including group annuity contracts, insurance policies, administrative services contracts,
and investment management agreements) related to such Purchased Subsidiary Benefit Plan, (vii) the three most recent nondiscrimination
testing results and (viii) the most recent summary plan description, including any summary of material modifications. For each
Multiemployer Plan, Seller has provided or made available to Buyer the following documents in its or its ERISA Affiliates’
possession: (1) plan documents and all amendments thereto, (2) participation agreement and all amendments thereto, (3) trust agreement
and all amendments thereto, (4) current withdrawal liability estimate from the Multiemployer Plan, (5) rehabilitation plan and
elections thereto, (6) contribution base
units and contribution rates for the last ten years, (7) all material communications
from plan trustees, union or any Governmental Authority with the Seller or its ERISA Affiliates since January 29, 2013 and that
would reasonably be expected to result in a material Liability to the Buyer or the Purchased Subsidiaries, and (8) the latest
actuarial valuation report.
(b)
(i) No Benefit Plan (A) is subject to Title IV of ERISA, (B) contains or to the knowledge of Seller has ever contained
a “defined benefit provision” as such term is defined in subsection 147.1(l) of the Income Tax Act (Canada),
(C) provides any post-retirement medical, dental, life insurance or welfare benefits (other than coverage mandated by Applicable
Law), or (D) is a Multiemployer Plan and (ii) no Purchased Subsidiary nor any ERISA Affiliate of a Purchased Subsidiary maintains
or contributes to, or has maintained or contributed to since January 29, 2013, any plan subject to Title IV of ERISA or any Multiemployer
Plan. No Non-US Benefit Plan is a defined benefit pension plan or scheme.
(c)
Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination
or opinion letter from the IRS or has applied to the IRS for such a letter within the applicable remedial amendment period or
such period has not expired, and, to the knowledge of the Seller, nothing has occurred that would reasonably be expected to adversely
affect the qualified status of any such Benefit Plan.
(d)
No material Action (other than routine claims for benefits) is pending against or involves or, to the knowledge of the
Seller, is threatened against or threatened to involve, any Purchased Subsidiary Benefit Plan or, to the knowledge of the Seller,
a Multiemployer Plan.
(e)
Each Purchased Subsidiary Benefit Plan has been established, maintained, funded, operated, and all benefits, contributions
and premiums, taxes and expenses relating thereto have been paid in material compliance with such plan’s terms, any agreements
relating thereto, and Applicable Law. Each Non-US Benefit Plan required to be registered or approved has been registered or approved
with applicable regulatory authorities. To the knowledge of the Seller, no fact or circumstance exists which would reasonably
be expected to adversely affect the registered status of any Non-US Benefit Plan.
(f)
The consummation of the transactions contemplated by this Agreement, either alone or in conjunction with any other event
(where such other event would not alone have an effect described in this sentence), will not give rise to any payment under any
Benefit Plan, or accelerate the time of payment or vesting, increase or require the funding of any amount of compensation or benefits
due to, or result in forgiveness of any debt of, in each case, any Business Employee or other individual service provider of the
Purchased Subsidiaries.
(g)
Beginning on January 1, 2015, the Seller, the Purchased Subsidiaries or the Retained Subsidiaries have made an offer of
minimum essential coverage to full time Business Employees and their dependents such that the Purchased Subsidiaries are not responsible
for any assessable payment under Section 4980H(a) or (b) of the Code.
(h)
With respect to each Benefit Plan that is subject to Title IV of ERISA, (i) the Purchased Subsidiaries and their ERISA
Affiliates have satisfied the minimum funding standards of Section 430 of the Code; (ii) no reportable event within the meaning
of Section 4043(c) of ERISA has occurred since January 29, 2013, other than any such event for which the 30-day notice period
has been waived by the Pension Benefit Guaranty Corporation (the “PBGC”), (iii) since January 29, 2013, all
premiums required to be paid to the PBGC since January 29, 2013 have been timely paid in full; (iv) no cessation of operations
that is treated as a withdrawal under Section 4062(e) of ERISA has occurred, (v) all notices related to reportable events, annual
funding notices, notices required under Sections 204(h), 4010, 4062 and 4063 of ERISA, and notices related to unpaid contributions
required to be provided to the PBGC since January 29, 2013 and participants have been made, and (vi) the Purchased Subsidiaries
and their ERISA Affiliates have no unsatisfied liabilities under Title IV of ERISA, other than for PBGC premiums or plan contributions
that are due but not delinquent under Section 4007 of ERISA. With respect to each Multiemployer Plan: (1) neither the Purchased
Subsidiaries nor any of their ERISA Affiliates has completely or partially withdrawn from, or incurred any “withdrawal liability”
(pursuant to Part I of Subtitle E of Title IV of ERISA), to any such plan which has not been satisfied in full, (2) none of the
Purchased Subsidiaries nor any of their ERISA Affiliates has received any notification that any such plan is in reorganization,
has been terminated, is insolvent, or has experienced a mass withdrawal or is reasonably expected to be in reorganization, to
be insolvent, to be terminated, or to experience a mass withdrawal, (3) neither the execution or delivery of this Agreement nor
the consummation of the transactions contemplated in this Agreement will result in the Buyer or Purchased Subsidiaries incurring
any “withdrawal liability” (pursuant to Part I of Subtitle E of Title IV of ERISA) to any such plan, (4) all contributions
required to be made since January 29, 2013 to such a Multiemployer Plan have been timely paid in full, and (5) the Purchased Subsidiaries
and each of their ERISA Affiliates have performed all obligations required to be performed by them under, and are not in violation
or default under, any Multiemployer Plan.
(i)
Section 3.17(i) of the Disclosure Schedule sets forth, to the Seller’s best knowledge, a reasonably accurate estimate
of any withdrawal liability (pursuant to Part I of Subtitle E of Title IV of ERISA) for each Multiemployer Plan to which any Purchased
Subsidiary contributes on behalf of any employee or any ERISA Affiliate of any Purchased Subsidiary contributes on behalf of any
Business Employee.
(j)
There are no pending, promised, or committed material undertakings to increase post-employment health, life and welfare
benefits to Business Employees or former employees of the Purchased Subsidiaries and their dependents or to extend such benefits
to new classes of Business Employees or former employees of the Purchased Subsidiaries and their dependents.
(k)
Seller has provided to Buyer within the time frame specified below, a true, accurate and complete list of the name of each
employee who is primarily dedicated to the Business as of the date hereof or as of the date of the revised list contemplated by
the following sentence, as applicable (each a “Business Employee”), including such employee’s employing
entity, work location, current base compensation, cash and equity bonus opportunity for the current year,
actual cash and equity
bonus payments in the prior year, start date of services (including with Seller, a Retained Subsidiary, a Purchased Subsidiary
or any of their respective Affiliates) and title or position (the “Employee List”). At least three Business
Days prior to the Closing Date, Seller shall have provided Buyer a revised version of the Employee List that reflects information
that is current as of 10 or fewer Business Days prior to the Closing Date. Notwithstanding the foregoing, Seller may anonymize
or aggregate the foregoing data to the extent that Seller reasonably determines is necessary to comply with any Applicable Laws
relating to data privacy.
(l)
(i) No Purchased Subsidiary is a party to or subject to, or is currently negotiating in connection with entering into,
any collective bargaining agreement, collective agreement, works council, or other similar agreement with a union, trade union,
council of trade unions, employee bargaining agency, affiliated bargaining agent or other labor organization, nor are any Purchased
Subsidiary Employees represented by a union or other labor organization for purposes of collective bargaining, including by way
of certification, interim certification, voluntary recognition, or succession rights, (ii) since January 29, 2013, to the knowledge
of the Seller there has not been, nor has there been any threat of, any union, trade union, council of trade unions, employee
bargaining agency, affiliated bargaining agent or other labor organization campaign or petition for certification to become the
bargaining representative of any Business Employees, nor any labor strike, slowdown, work stoppage, lockout, concerted refusal
to work overtime affecting any Business Employees; and (iii) there are no written agreements that modify the terms of the collective
bargaining agreements, collective agreements, work council, or other similar agreements entered into by the Purchased Subsidiaries
and, to the knowledge of the Seller, the Purchased Subsidiaries have not committed any material breaches of their obligations
under the aforementioned agreements.
(m)
(i) Each Purchased Subsidiary is in material compliance with all Applicable Law pertaining to employment, employee safety,
occupational health, employee classification and employment practices, including those relating to labor management relations,
wages, hours, overtime, vacation pay, discrimination, sexual harassment, human rights, pay equity, civil rights, affirmative action,
work authorization, immigration, safety and health and continuation coverage under group health plans, and (ii) there are no material
actions, suits, claims, investigations, grievances, arbitration proceedings, unfair labor practice charges or other legal proceedings
against any Purchased Subsidiary pending, or, to Seller’s knowledge threatened to be brought, initiated or filed, in connection
with any Business Employee or former employee of a Purchased Subsidiary or applicant for employment with, or independent contractor
or consultant of any Purchased Subsidiary, including any claim or allegation relating to unfair labor practices, employment discrimination,
harassment, retaliation, equal pay, improper classification or any other employment related matter arising under Applicable Law.
The Purchased Subsidiaries in Canada have each materially complied with any orders issued under occupational health and safety
legislation and there are no appeals of any orders currently outstanding.
(n)
There are no Unfunded Foreign Plan Obligations under any Purchased Subsidiary Benefit Plan.
(o)
The acquisition of the Shares pursuant to this Agreement will not constitute a change in the ownership or effective control
of (or a change in the ownership of a substantial portion of the assets of) the Seller (or, if applicable, the common parent of
the Seller Group including the Seller) for purposes of Section 280G or the Treasury Regulations promulgated thereunder. None of
the Seller, Retained Subsidiaries or Purchased Subsidiaries has any obligation to gross up any Business Employees for Taxes.
Section 3.18.
Environmental Compliance. (a) Except for matters that are disclosed on Section 3.18 of
the Disclosure Schedule:
(i)
with respect to the Purchased Subsidiaries, the Business and the Real Property, Seller and its Purchased Subsidiaries are
and since January 29, 2013 have been in material compliance with, and no material liability has arisen under, all applicable Environmental
Laws as in effect on the date hereof;
(ii)
with respect to the Purchased Subsidiaries, the Business and the Real Property, (x) the Seller and its Purchased Subsidiaries
possess all material Permits required by all applicable Environmental Laws as in effect on the date hereof; (y) all such Permits
are valid and in full force and effect; and (z) neither Seller nor any of its Subsidiaries are in material default or violation,
and, to the knowledge of the Seller, no condition exists that with notice or lapse of time or both would constitute a material
default or violation, under such Permits;
(iii)
(x) no written notice, demand, order, judgment, decree, request for information, complaint or penalty has been received
or entered into by Seller or any of its Purchased Subsidiaries, and (y) there is no Action pending or, to the knowledge of the
Seller, threatened, in the case of each of (x) and (y), which (A) alleges a material violation of or material liability arising
under any Environmental Law, (B) relates to the Purchased Subsidiaries, the Business or the Real Property and (C) has not been
settled, dismissed, paid or otherwise resolved, with no material outstanding obligations remaining;
(iv)
there have been no releases of Hazardous Substances at the Real Property, and the Purchased Subsidiaries have not released
Hazardous Substances at any real property formerly owned, leased or operated by any Purchased Subsidiary or at any real property
to which the Business or any Purchased Subsidiary has sent hazardous waste for disposal, except for such releases that would not
result in material liability to any Purchased Subsidiary;
(v)
the Seller (solely with respect to the Purchased Subsidiaries, the Business and the Real Property), the Purchased Subsidiaries
and their predecessors have not, by contract, assumed or retained any material liability or obligation pertaining to environmental
compliance or releases of Hazardous Substances as a result of the acquisition or disposition of any assets or real property; and
(vi)
Seller has provided copies of all Phase I environmental site assessment reports and Phase II reports relating to the Real
Property conducted since January 29, 2013, which, in each case, are in the possession or control of the Purchased Subsidiaries
or the Seller.
(b)
The representations and warranties in Section 3.09 (but solely to the extent Section 3.09 pertains
to environmental matters) and this Section 3.18 are the exclusive representations or warranties made by Seller
with respect to Environmental Laws, Hazardous Substances or any other environmental matters.
Section 3.19.
Taxes. Seller hereby represents and warrants to Buyer that:
(a)
Each of the Purchased Subsidiaries has timely filed, or caused to be timely filed, with the appropriate Taxing Authorities,
all income Tax Returns and other material Tax Returns that are required to be filed or fulfilled by, or with respect to, each
of the Purchased Subsidiaries, and each such Tax Return is true, correct and complete in all material respects, and all Taxes
shown as due on any such Tax Return have been timely paid;
(b)
Since the Balance Sheet Date, neither the Seller nor any Purchased Subsidiary has(i) changed any material Tax election
or other material Tax practice or material Tax procedure of any of the Purchased Subsidiaries, (ii) made any material Tax election
with respect to a Purchased Subsidiary inconsistent with its past practice, (iii) changed any method of accounting or accounting
period used by any Purchased Subsidiary for Tax purposes, (iv) amended any material Tax Return of any Purchased Subsidiary, or
(v) entered into any material agreement with any Taxing Authority (including a “closing agreement” under Code Section
7121) with respect to any Tax or Tax Returns;
(c)
No Purchased Subsidiary has any material liability for any delinquent Taxes (whether or not relating to any Tax Return);
(d)
Each Purchased Subsidiary has timely and properly withheld (i) all material Taxes from payments to its employees, agents,
contractors, shareholders, lenders, and other Persons and (ii) all material sales, use, ad valorem, and value added Taxes and
each Purchased Subsidiary has timely remitted all Taxes actually withheld to the proper Taxing Authority in accordance with all
Applicable Laws;
(e)
There is no claim, audit, action, suit, proceeding, examination or investigation now pending or threatened in writing against
or with respect to any of the Purchased Subsidiaries in respect of any material Tax and neither the Seller nor any Purchased Subsidiary
has received in the past two years a written notice from any Taxing Authority that any Purchased Subsidiary is required to pay
Taxes or file Tax Returns in a jurisdiction in which such Purchased Subsidiary does not file Tax Returns or pay Taxes;
(f)
No Purchased Subsidiary (i) has been a member of an affiliated group filing a consolidated U.S. federal income Tax Return
(other than a Seller Group or a Legacy Group), (ii)
has any liability for Taxes of another Person, other than a member of a Seller
Group or a Legacy Group, under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S.
law), (iii) has any liability for Taxes of another Person as a successor or transferee (other than a member of a Seller Group
or a Legacy Group) or (iv) has any liability for any Tax of a Seller Group (or member thereof other than another Purchased Subsidiary)
other than those Taxes that are Combined Taxes or that are set forth in clauses (i), (ii), or (iii);
(g)
As of the Closing Date, no Purchased Subsidiary is a party to, is otherwise bound by or has any obligation under, any Tax
Sharing Agreement;
(h)
No Purchased Subsidiary has participated or engaged in any transaction that constitutes a “listed transaction”
within the meaning of U.S. Treasury Regulations Section 1.6011-4(b)(2);
(i)
During the two year period ending on the date hereof, no Purchased Subsidiary was a distributing corporation or a controlled
corporation in a transaction intended to be governed in whole or in part by Section 355 of the Code;
(j)
There are no Liens for Taxes on any assets of any of the Purchased Subsidiaries (or on any shares of any of the Purchased
Subsidiaries), other than Permitted Liens;
(k) No request for a private letter ruling, request for administrative relief, request for technical advice, request for a
change of any method of accounting, or any other similar request is pending with any Taxing Authority, in each case, that could
have a material and adverse effect on the Taxes or Tax Returns of any Purchased Subsidiary;
(l) No Purchased Subsidiary is subject to a material Tax holiday, Tax incentive or Tax grant in any jurisdiction;
(m) No Purchased Subsidiary is required to include an item of income, or exclude an item of deduction, for any Post-Closing
Tax Period as a result of (i) an installment sale transaction occurring on or before the Closing governed by Code Section 453
(or any similar provision of state, local or non-U.S. Laws); (ii) a transaction occurring on or before the Closing that was reported
as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii)
any prepaid amount; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period or (v) an agreement entered
into with any Taxing Authority (including a “closing agreement” under Code Section 7121) on or prior to the Closing
Date;
(n) No election (including a protective election) has been made pursuant to Code Section 108(i) that could affect the Taxes
of any Purchased Subsidiary for a Post-Closing Tax Period;
(o)
Each Purchased Subsidiary is properly classified as a corporation for U.S. federal income tax purposes and no election
under Treasury Regulation Section 301.7701-3 has been made (or is pending) with respect to any Purchased Subsidiary;
(p)
No Purchased Subsidiary (i) with respect to any circumstances with respect to which an applicable income Tax treaty is
in force, has a “permanent establishment” for any applicable income Tax treaty purposes, or (ii) with respect to any
circumstances with respect to which no applicable income Tax treaty is in force, engages in (or has engaged) in a trade or business,
in each case, in a country other than the country in which such Purchased Subsidiary is incorporated or otherwise organized;
(q)
Each of the Purchased Subsidiaries has complied in all material respects (including maintaining appropriate documentation)
with all transfer pricing rules applicable to the Purchased Subsidiaries under Applicable Laws (including those contained in the
Code or the ITA);
(r)
Each of the Purchased Subsidiaries has not, and has never been deemed to have for purposes of the ITA, acquired or had
the use of property for proceeds greater than the fair market value thereof from, or disposed of property for proceeds less than
the fair market value thereof to, or received or performed services or had the use of property for other than the fair market
value from or to, or paid or received interest or any other amount other than at a fair market value rate to or from, any Person
with whom it does not deal at arm’s length within the meaning of the ITA;
(s)
The Shares are not “taxable Canadian property” within the meaning of the ITA; and
(t)
There are no circumstances existing which could result in the application of Section 17, Section 78, Section 79, or Sections
80 to 80.04 of the ITA, or any equivalent provision under Applicable Laws, to the Purchased Subsidiaries and none of the Purchased
Subsidiaries has claimed nor will claim any reserve under any provision of the ITA or any equivalent provincial provision, if
any amount could be included in the income of such Purchased Subsidiary for any period ending after the Closing.
This Section
3.19, and the representations and warranties in Section 3.17
that relate to Taxes, contain the sole and exclusive representations and warranties of Seller with respect to Taxes.
Section 3.20.
Sufficiency. Assuming receipt of all required consents, approvals and authorizations, on the Closing Date the Purchased
Subsidiaries will own, possess, have a valid license to, have a valid lease in or otherwise have the right to use all of the rights,
properties and assets necessary to conduct the Business in substantially the same manner as currently conducted on the date hereof
(and as conducted during the 12 months preceding the date hereof) by the Seller and its Affiliates (taking into account all other
Transaction Documents and except for Intellectual Property Rights, IT Assets and insurance), including the assets set forth on
Section
3.20 of the Disclosure Schedule (except for immaterial assets and assets disposed of in the ordinary course
of business).
Section 3.21.
Customers and Suppliers. Section 3.21 of the Disclosure Schedule sets forth a true, correct
and complete list of names of the 30 largest customers for the Purchased Subsidiaries taken as a whole (the “Top Customers”)
by fiscal year 2015 annual revenue and the 30 largest suppliers for the Purchased Subsidiaries taken as a whole (the “Top
Suppliers”) by fiscal year 2015 annual expenditures, and the dollar amount of purchases or sales, as applicable, for
each Top Customer and Top Supplier during the year ended May 31, 2015 and the three-month period ended August 30, 2015. As of
the date hereof, no Top Supplier or Top Customer has notified the Purchased Subsidiaries in writing that it intends to cease or
substantially reduce the purchase or supply of products, goods or services of or to the Business.
Section 3.22.
Accounts Receivable. All accounts receivable of the Purchased Subsidiaries reflected on the books and records of
the Purchased Subsidiaries (a) are reflected in accordance with GAAP consistently applied with the accounting methods used in
Exhibit A and its Supporting Documentation, (b) have arisen from bona fide transactions in the ordinary course of business
and (c) to the knowledge of the Seller as of the date hereof, are good, genuine and valid receivables (subject to no counterclaims,
deduction, credit or offset) in all material respects, in the aggregate amount thereof, except to the extent of the allowance
for doubtful accounts and subject to customary trade discounts.
Section 3.23.
Inventory. As of the date hereof, the inventories reflected on the Balance Sheet and the inventories acquired or
manufactured since the Balance Sheet Date, other than, in each case, inventory sold since the Balance Sheet Date, consist of items
of quality and quantity usable and salable in the ordinary course of business at market values not less than the carrying value
on the books of the Purchased Subsidiaries; the values of obsolete materials and materials of below-standard quality have been
written down to realizable market value, or adequate reserves have been provided therefor; and the values at which such inventories
are carried reflect the lower of cost and fair market value in accordance with GAAP consistently applied with the accounting methods
used in Exhibit A and its Supporting Documentation. To the knowledge of the Seller, all products of the Purchased Subsidiaries
which were manufactured by or on behalf of the Purchased Subsidiaries prior to the Closing were manufactured in compliance with
all applicable product specifications, good manufacturing practices and Applicable Law The levels of inventory of the Purchased
Subsidiaries have, since the Balance Sheet Date, been maintained in the ordinary course of business consistent with the reasonably
anticipated requirements of the Purchased Subsidiaries.
Section 3.24.
Product Warranty, Recalls and Label Claims. Since May 31, 2015, there have been no written claims against the Purchased
Subsidiaries alleging any defects in their products, or alleging any failure of the products or services of the Purchased Subsidiaries
to meet applicable specifications, warranties or contractual commitments in each case that would reasonably be expected to result
in a liability of any Purchased Subsidiary in excess of $250,000. The Purchased Subsidiaries’ finished goods which have
been produced but not sold by the
Purchased Subsidiaries prior to the date hereof, or which have been sold to customers during
the 12 calendar months prior to the date hereof, are free from material defects and conform in all material respects to applicable
specifications, warranties and contractual commitments. Since May 31, 2015, no products produced or sold by the Purchased Subsidiaries
have been subject to any customer-wide, product-wide or field-wide recall (but excluding any ordinary course product returns or
customer satisfaction campaigns) and, to the knowledge of the Seller as of the date of this Agreement, no facts or circumstances
exist that would reasonably be expected to result in any such recall.
Section 3.25.
Affiliated Transactions. Section 3.25 of the Disclosure Schedule sets forth a list of any contracts
(other than (x) the Transaction Documents and other contracts expressly contemplated hereby or thereby and (y) contracts related
to a Person’s employment or role as a director or similar contract or arrangement) by and between any Purchased Subsidiary,
on the one hand, and Seller, any Affiliate of Seller (other than any Purchased Subsidiary) or any officer, director or employee
of Seller or any such Affiliate of Seller, on the other hand (each, a “Related Party Contract”). Each Related
Party Contract is on commercially reasonable terms.
Section 3.26.
No Other Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
ARTICLE 3, NEITHER SELLER NOR ANY OTHER PERSON MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT
TO THE SHARES, SELLER, THE PURCHASED SUBSIDIARIES OR ANY OF THEIR RESPECTIVE AFFILIATES OR THE BUSINESS, AND SELLER EXPRESSLY
DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, FORECASTS, PROJECTIONS, STATEMENTS OR INFORMATION, WHETHER MADE OR FURNISHED
BY SELLER OR ANY OF ITS AFFILIATES OR ANY OF ITS OR THEIR REPRESENTATIVES OR ANY OTHER PERSON.
Article
4
Representations and Warranties of Buyer
Buyer represents
and warrants to Seller as of the date hereof and on the Closing Date that:
Section 4.01.
Corporate Existence and Power. Buyer is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and has all corporate powers and authority and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations,
permits, consents and approvals the absence of which would not prevent or materially delay the transactions contemplated by this
Agreement or any other Transaction Document to which Buyer or any of its Affiliates is a party.
Section 4.02.
Corporate Authorization. The execution, delivery and performance by Buyer of this Agreement and the consummation
of the transactions contemplated hereby are within the corporate powers of Buyer and have been duly authorized by all necessary
corporate action on the part of Buyer. The execution, delivery and performance of each other Transaction
Document to which Buyer
or any of its Affiliates is a party, by Buyer and any such Affiliates, and the consummation of the transactions contemplated thereby,
are within Buyer’s and any such Affiliate’s corporate powers and have been, or will be prior to their execution, delivery
and performance, duly authorized by all necessary corporate action on the part of Buyer and any such Affiliates. Assuming due
and valid execution by each other party hereto, this Agreement constitutes a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, subject to the Enforceability Exceptions. Assuming due and valid execution by each
other party thereto, each other Transaction Document to which Buyer or any of its Affiliates is a party constitutes or, upon the
execution and delivery thereof by Buyer and any such Affiliate, shall constitute, a valid and binding agreement of Buyer and any
such Affiliate, enforceable against Buyer and any such Affiliate in accordance with its terms, subject to the Enforceability Exceptions.
Section 4.03.
Governmental Authorization. The execution, delivery and performance by Buyer and its Affiliates of this Agreement
and each other Transaction Document to which Buyer or its Affiliate are a party and the consummation of the transactions contemplated
hereby and thereby require no action by or in respect of, or filing with, any Governmental Authority other than (i) compliance
with any applicable requirements of the HSR Act or the Competition Act, (ii) compliance with any other applicable Competition
Laws and (iii) any such action or filing as to which the failure to make or obtain would not, individually or in the aggregate,
prevent or materially delay the consummation of the transactions contemplated by this Agreement or any other Transaction Document
to which Buyer or any of its Affiliates is a party.
Section 4.04.
Noncontravention. The execution, delivery and performance by Buyer and its Affiliates of this Agreement and
each other Transaction Document to which Buyer or its Affiliates are a party and the consummation of the transactions contemplated
hereby and thereby do not and will not (i) violate the certificate of incorporation or bylaws of Buyer or such Affiliates,
(ii) assuming compliance with the matters set forth in Section 4.03, violate any Applicable Law, (iii) require
any consent, notice or other action by any Person under, result in a violation or breach of any of the terms, conditions or provisions
of, constitute a default under, or give rise to any right of termination, cancellation or acceleration of any right or obligation
of Buyer or such Affiliates or to a loss of any benefit to which Buyer or such Affiliates are entitled under any provision of
any agreement or other instrument binding upon Buyer or such Affiliates or (iv) result in the creation or imposition of any
material Lien on any asset of Buyer or such Affiliates, with such exceptions, in the case of each of clauses (ii)
through (iv), as would not, individually or in the aggregate, prevent or delay the consummation of the transactions
contemplated by this Agreement or any other Transaction Document to which Buyer or any of its Affiliates is a party.
Section 4.05.
Financing. (a) Buyer has delivered to Seller complete and correct fully executed copies of the commitment
letter, dated as of the date hereof, by and among Bank of America, N.A., JPMorgan Chase Bank, N.A., Wells Fargo Bank, National
Association, SunTrust Bank, Bank of Montreal and certain of their respective affiliates (together with any other Persons (other
than Buyer or any of its Affiliates) that otherwise have entered into or will enter into
agreements in connection with the Debt
Financing or debt or other financing in connection with the transactions contemplated by this Agreement, together with their respective
Affiliates, and their and any such Affiliates’ officers, directors, employees, agents and representatives involved in any
Debt Financing, or, if applicable, the Alternate Debt Financing, collectively, the “Financing Sources”) (such
letters, together with all annexes, exhibits, schedules and other attachments thereto, as may be amended or modified to the extent
permitted hereunder, the “Debt Financing Commitments”), pursuant to which the lenders (and certain of their
Affiliates) party thereto have committed, severally and not jointly, subject to the terms and conditions set forth therein, to
lend the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees
and expenses (the “Debt Financing”). As of the date hereof, none of the Debt Financing Commitments has been
amended or modified in any respect, no provisions or rights therein have been waived, the respective commitments contained in
the Debt Financing Commitments have not been withdrawn, terminated, rescinded or otherwise modified in any respect, nor is any
such amendment, modification, withdrawal or rescission currently contemplated except as expressly set forth therein with respect
to reductions in the amount of the commitments contained in the Debt Financing Commitments with proceeds from a public or private
offering of equity or debt securities consummated on or prior to the Closing (a “Securities Financing”) (any
such reduction, a “Permitted Commitment Reduction”). Except for fee letters relating to fees with respect to
the Debt Financing (complete copies of which have been provided to the Seller, with only fee, “securities demand,”
flex and certain other economic terms redacted (as the same may be amended or modified to the extent permitted hereunder, the
“Redacted Fee Letter”), provided that such redactions do not relate to any terms that would adversely affect
the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing), as of the
date of this Agreement there are no side letters or other contracts or understandings related to the funding of the Debt Financing
other than the Debt Financing Commitments and Redacted Fee Letter delivered to the Buyer prior to the date of this Agreement (other
than any customary engagement letter that does not impact the conditionality or amount of the Debt Financing). Buyer has fully
paid any and all commitment fees or other fees in connection with the Debt Financing Commitments that are payable on or prior
to the date of this Agreement and, as of the date hereof, the Debt Financing Commitments are in full force and effect and are
legal, valid, binding and enforceable obligations of Buyer and, to the knowledge of Buyer, each of the other parties thereto,
subject to the Enforceability Exceptions. As of the date hereof, assuming the accuracy of the representations and warranties of
the Seller set forth in Article 3 in all material respects, no event has occurred that, with or without notice,
lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Buyer or, to the knowledge
of Buyer, any other party thereto under any of the Debt Financing Commitments. As of the date hereof, Buyer is not aware of any
fact, event or other occurrence that makes any of the representations or warranties of Buyer under any Debt Financing Commitment
inaccurate in any respect taking into account any materiality or other qualifications set forth therein. There are no conditions
precedent or contingencies directly or indirectly related to the funding of the full amount of the Debt Financing (including any
flex provisions) other than the conditions precedent expressly set forth in the Debt Financing Commitments. Assuming the commitments
contained in the Debt Financing Commitments are funded in accordance with their terms (after giving effect to the flex
provisions
and notwithstanding any Permitted Commitment Reductions), Buyer will have at and after the Closing funds sufficient to (i) pay
the Closing Purchase Price, (ii) pay any and all fees and expenses required to be paid by Buyer in connection with the acquisition
of the Shares and the Debt Financing, and (iii) satisfy all of the other payment obligations of Buyer contemplated hereunder.
(b)
Buyer acknowledges and agrees that notwithstanding anything to the contrary in this Agreement, the consummation of any
financing transaction shall not be a condition to the obligation of Buyer to consummate the transactions contemplated by this
Agreement or the other Transaction Documents.
Section 4.06.
Litigation. There are no Actions pending against or, to the knowledge of Buyer, threatened against, Buyer,
except for such Actions as would not reasonably be expected, individually or in the aggregate, to prevent or materially delay
the transactions contemplated by this Agreement or any other Transaction Document to which Buyer or any of its Affiliates is a
party.
Section 4.07.
Finders’ Fees. Except for Morgan Stanley & Co. LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, whose fees and expenses shall be paid by Buyer, there is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of Buyer who might be entitled to any fee or commission in connection
with the transactions contemplated by this Agreement or the other Transaction Documents.
Section 4.08.
Inspections; No Other Representations. Buyer is an informed and sophisticated purchaser, and has engaged
expert advisors, experienced in the evaluation and purchase of property and assets such as the Purchased Subsidiaries and the
Shares as contemplated hereunder. Buyer acknowledges and agrees that the Purchased Subsidiaries and the Shares are sold on an
“as is where is” basis and Buyer agrees to accept the Purchased Subsidiaries and the Shares in the condition they
are in on the Closing Date and without reliance upon any express or implied representations or warranties of any nature made by
or on behalf of or imputed to Seller, except as expressly set forth in Article 3 of this Agreement. Without limiting
the generality of the foregoing, Buyer acknowledges that Seller makes no representation or warranty with respect to (i) any projections,
estimates or budgets delivered to or made available to Buyer or its Representatives of future revenues, future results of operations
(or any component thereof), future cash flows or future financial condition (or any component thereof) of the Purchased Subsidiaries
or their future business and operations or (ii) except as expressly set forth in this Agreement, any other information or documents
made available to Buyer or its Representatives with respect to the Purchased Subsidiaries.
Section 4.09.
Purchase for Investment. Buyer is purchasing the Shares for investment for its own account and not with a
view to, or for sale in connection with, any distribution thereof. Buyer (either alone or together with its advisors) has sufficient
knowledge and
experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment
in the Shares and is capable of bearing the economic risks of such investment.
Section 4.10.
Qualified Stock Purchase. The transaction occurring pursuant to Section 2.01 of this Agreement qualifies
as a “qualified stock purchase” within the meaning of Section 338(d)(3) of the Code.
Article
5
Covenants of Seller
Seller agrees
that:
Section 5.01.
Conduct of the Business. From the date hereof until the Closing Date, except (v) for the Pre-Closing Transactions,
(w) as set forth in Section 5.01 of the Disclosure Schedule, (x) as contemplated by this Agreement or the other
Transaction Documents, (y) as required by Applicable Law or (z) with Buyer’s written consent, Seller shall (i) conduct the
Purchased Subsidiaries’ business in the ordinary course consistent with past practice in all material respects, and (ii)
use its reasonable best efforts to (A) preserve intact the Purchased Subsidiaries’ business, operations, organization, goodwill
and reputation, (B) maintain the good will of the Purchased Subsidiaries’ customers, suppliers, lenders and other Persons
to whom the Purchased Subsidiaries sells goods or provides services, (C) keep available the services of key employees of the Business,
and (D) maintain substantially the same levels of coverage of insurance as provided on the date hereof. Without limiting the generality
of the foregoing, from the date hereof until the Closing Date, except (v) for the Pre-Closing Transactions, (w) as set forth in
Section 5.01 of the Disclosure Schedule, (x) as contemplated by this Agreement, (y) as required by Applicable
Law or (z) with Buyer’s written consent, Seller shall cause the Purchased Subsidiaries not to:
(a)
amend in any material respect the articles of incorporation, bylaws or other similar organizational documents of any Purchased
Subsidiary;
(b)
authorize, issue, sell or otherwise dispose of any equity securities of the Purchased Subsidiaries, or split, combine or
reclassify any of the equity securities of the Purchased Subsidiaries or redeem, purchase, repurchase, retire or otherwise acquire
any of its outstanding equity securities, or grant any options, warrants, or rights with respect to any equity securities in the
Purchased Subsidiaries’ capital or bonds, debentures, notes or other corporate security other than with respect to transactions
between the Purchased Subsidiaries;
(c)
cease to operate the Purchased Subsidiaries’ properties (either permanently or temporarily other than scheduled shut
downs for routine maintenance) or cease to carry on a material part of the Business as operated or carried on immediately before
the date hereof;
(d)
effect any dissolution, winding-up, liquidation or termination of the Purchased Subsidiaries;
(e)
acquire a material amount of assets from any other Person except (i) pursuant to existing contracts or commitments
or (ii) otherwise in the ordinary course of business consistent with past practice;
(f)
acquire any material business or Person, by merger, amalgamation or consolidation, purchase or sale of substantial assets
or equity interests, or by any other manner;
(g)
sell, lease, license or otherwise dispose of any material assets of the Purchased Subsidiaries except (i) pursuant
to existing contracts or commitments, (ii) cash dividends or other cash distributions to Seller or its Affiliates or (iii) otherwise
in the ordinary course of business consistent with past practice;
(h)
transfer to any person any rights to the Registered Intellectual Property Rights or any other material Intellectual Property
Rights owned by the Purchased Subsidiaries, except in connection with sales of the Purchased Subsidiaries’ products or services
in the ordinary course of business;
(i)
create or otherwise incur any Lien on the material assets of the Purchased Subsidiaries, other than Permitted Liens;
(j)
incur any capital expenditures, except for (i) those contemplated by the capital expenditure budget attached as Section
5.05 of the Disclosure Schedule, and (ii) unbudgeted capital expenditures not to exceed $500,000 individually or $1,000,000 in
the aggregate;
(k)
issue, create, assume, guarantee or incur any additional indebtedness for borrowed money in an aggregate principal amount
exceeding $500,000 individually or $1,000,000 in the aggregate (net of any amounts of indebtedness discharged during such period),
other than (x) in the ordinary course of business, (y) that will be settled or repaid in full prior at or to Closing or (z) solely
between or among Purchased Subsidiaries;
(l)
enter into any arrangement pursuant to which any Purchased Subsidiary shall assume, guarantee or otherwise become liable
with respect to the liabilities (other than indebtedness for borrowed money, which is the subject of Section 5.01(k))
of any Person (other than any Purchased Subsidiaries), other than (x) in the ordinary course of business or (y) that will be settled
or repaid in full prior at or to Closing;
(m)
other than in connection with actions permitted by Section 5.01(j), make any material loans, advances or capital
contributions to, or investments in, any other Person, other than (i) in the ordinary course of business consistent with past
practice, (ii) to any other Purchased Subsidiary or (iii) amounts that will be repaid in full at or prior to the Closing;
(n)
waive or cancel any material claim, account receivable, trade account or right outside the ordinary course of business;
(o)
except as required by Applicable Law, amend or modify in any material respect or terminate any Material Contract or Real
Property Lease;
(p)
enter into any contract that would have been a Material Contract had it been entered into prior to the date hereof except,
solely with respect to Material Contracts relating to the purchase of raw materials that have a term of less than one year, in
the ordinary course of business consistent with past practice;
(q)
settle or offer to settle, any material Action involving the Purchased Subsidiaries, except where the amount paid in settlement
or compromise does not exceed (i) the amount of any reserves reflected on the Balance Sheet in respect of such Action or (ii)
the aggregate coverage provided for under any insurance policy in respect of such Action, in either case, so long as such settlement
does not impose any non-monetary terms and conditions on the Purchased Subsidiaries after the Closing;
(r)
make any material change in any method of financial accounting, except for any such change required by reason of a concurrent
change in GAAP or other Applicable Law;
(s)
materially increase the compensation or benefits of the Business Employees other than in the ordinary course of business
consistent with past practice or as required by Applicable Law or the terms of any Benefit Plan or collective bargaining or other
labor agreement;
(t)
enter into, adopt, amend, or terminate any employment agreement, or terminate or hire any Key Employee, or other Business
Employee above the grade of director or engage in a reduction in force with respect to the Business Employees;
(u)
enter into, adopt, amend or terminate any Purchased Subsidiary Benefit Plan or any Benefit Plan, except in each case as
would not reasonably be expected to result in a liability that is material to the Purchased Subsidiaries taken as a whole;
(v)
enter into, materially amend, or terminate any collective bargaining agreement, collective labor agreement or similar agreements
with respect to Business Employees; or
(w)
agree or commit to do, whether or not in writing, any of the foregoing.
For the avoidance
of doubt, nothing in this Section 5.01 shall restrict
Seller or any of its Subsidiaries, in any respect, from taking any action to (i) cause each Purchased Subsidiary to dividend,
distribute or otherwise pay to Seller or any of its Affiliates any or all of the cash and cash equivalents of such Purchased Subsidiary;
(ii) remove, or cause any Subsidiary to remove and pay to Seller or any of its Affiliates any cash and cash equivalents held in
any bank account of any Purchased Subsidiary, (iii) settle intercompany balances between any Purchased Subsidiary, on the one
hand, and Seller or any Retained Subsidiary, on the other hand, and make capital increases or decreases in connection therewith,
(iv) in connection with any of the foregoing clauses (i), (ii) or (iii), cause any Purchased Subsidiary to incur indebtedness
for
borrowed money from another Purchased Subsidiary and (v) otherwise comply with or give effect to the provisions of this Agreement.
Section 5.02.
Confidentiality. Seller shall not, and shall cause its controlled Affiliates and Representatives not to,
for a period of two years after the Closing Date, directly or indirectly, without Buyer’s consent, disclose to any third
party (other than each other and their respective Representatives) any confidential or proprietary information related to the
Business or the Purchased Subsidiaries or that is disclosed to Seller pursuant to the exercise of its rights under Section
7.07 hereof; provided that the foregoing restriction shall not (a) apply to any information (i) generally available to,
or known by, the public (other than as a result of disclosure in violation of this Section 5.02) or (ii) independently
developed by Seller or any of its Affiliates (other than by the Purchased Subsidiaries prior to the Closing), or (b) prohibit
any disclosure (i) required by Applicable Law so long as, to the extent practicable and legally permissible, Seller provides Buyer
with reasonable prior notice of such disclosure and a reasonable opportunity (at Buyer’s sole expense) to contest such disclosure
or (ii) made in connection with the enforcement of any right or remedy relating to any of the Transaction Documents or the transactions
contemplated thereby.
Section 5.03.
Noncompetition. As an inducement to cause Buyer to enter into this Agreement, Seller agrees that during the 36-month
period commencing on the Closing Date (the “Restricted Period”), neither Seller nor any of its Subsidiaries
shall engage, directly or indirectly, in the Business as it exists on the Closing Date (a “Competing Business”);
provided that nothing herein shall prohibit (i) the acquisition by Seller or any of its Subsidiaries of a diversified business
having not more than 20% of its sales (based on its latest annual financial statements) attributable to any Competing Business;
(ii) the acquisition by Seller or any of its Subsidiaries of a diversified business for an aggregate purchase price of $100,000,000
or less having more than 20% of its sales (based on its latest annual financial statements) attributable to any Competing Business
(so long as Seller uses its reasonable best efforts to divest such Competing Business or a portion thereof (or, at Seller’s
option, cease conducting the Competing Business or a portion thereof) so that the Competing Business represents not more than
20% of such diversified business’s sales (based on its latest annual financial statements), within 18 months following consummation
of such acquisition) or (iii) the acquisition, holding of investments or direct or indirect ownership by Seller or any of its
Subsidiaries of any voting stock, capital stock or other equity interest of any Person engaged in a Competing Business, so long
as such ownership interest represents not more than 20% of the aggregate voting power or outstanding capital stock or other equity
interests of such Person. For the avoidance of doubt and notwithstanding the foregoing, the development, manufacture, sale and/or
servicing of any products sold or in production in a line of business other than the Business (as conducted on the Closing Date)
by Seller or any of its Affiliates shall not be considered a Competing Business, and a Competing Business shall not include the
development, manufacture, sale, use or distribution, anywhere in the world, of any product that is being manufactured or sold
by Seller or any of its Subsidiaries on the Closing Date, but is not included in the Business. This Section 5.03
shall cease to be applicable to any Person at such time as it is no longer a Subsidiary of Seller and shall not apply to any Person
that purchases assets, operations or a business from
Seller or one of its Subsidiaries, if such Person is not a Subsidiary or
Affiliate of Seller after such transaction is consummated. This Section 5.03 does not apply to any Subsidiary
of Seller in which a Person who is not an Affiliate of Seller holds equity interests and with respect to whom Seller or another
Subsidiary, as applicable, has contractual or legal obligations as of the date of this Agreement (including fiduciary duties of
representatives on the board of directors or similar body of such Subsidiary) limiting Seller’s ability to impose on the
subject Subsidiary a non-competition obligation such as that in this Section 5.03.
Section 5.04.
Termination of Intercompany Arrangements. On or prior to Closing, Seller shall take any and all actions necessary
to (a) terminate any contract between a Purchased Subsidiary and Seller or any Retained Subsidiary and (b) repay or otherwise
settle any indebtedness for borrowed money owed by a Purchased Subsidiary to Seller or any Retained Subsidiary.
Section 5.05.
Capital Expenditures. From the date hereof until the Closing Date, the Seller shall use commercially reasonable
efforts to cause the Purchased Subsidiaries to incur capital expenditures in accordance with the budgeted amounts to be spent
on all capital projects pursuant to the capital expenditures budget attached as Section 5.05 of the Disclosure Schedule,
including all repairs and maintenance amounts budgeted with regard to repairs and maintenance for the Purchased Subsidiaries’
machinery, equipment and buildings.
Section 5.06.
Financial Information. (a) The Seller shall deliver (or cause to be delivered) to the Buyer
as promptly as practicable after the date of this Agreement an audited combined balance sheet and related combined statements
of operations, comprehensive income, business equity and cash flows of the Purchased Subsidiaries as of and for the fiscal years
ended May 25, 2014 and May 31, 2015 and audited combined statements of operations, comprehensive income, business equity and cash
flows of the Purchased Subsidiaries for the period from January 29, 2013 to May 26, 2013 in each case giving effect to the Pre-Closing
Transactions.
(b)
In the event the Marketing Period has not concluded on or prior to July 30, 2016, the Seller shall deliver (or cause to
be delivered) to the Buyer as promptly as practicable following the end of its fiscal year ended May 29, 2016 an audited combined
balance sheet and related combined statements of operations, comprehensive income, business equity and cash flows of the Purchased
Subsidiaries for the fiscal year then ended and giving effect to the Pre-Closing Transactions (together with the information set
forth in Section 5.06(a), but only to the extent required to be delivered by Seller hereunder as of the date of determination,
the “Audited Financial Statements”).
(c)
The Seller shall deliver (or cause to be delivered) to the Buyer as promptly as practicable following the end of the fiscal
quarter ended November 29, 2015, an unaudited condensed combined balance sheet of the Purchased Subsidiaries as of November 29, 2015,
and November 23, 2014 and combined statements of operations, comprehensive income, business equity and cash flows of the Purchased
Subsidiaries for the six-month period ended November 29, 2015 and November 23, 2014, in each case giving effect to the Pre-Closing
Transactions.
For each subsequent fiscal quarter ended after November 29, 2015 (but excluding, for the avoidance of doubt, the
quarter ended May 29, 2016), in the event the Marketing Period has not concluded on or prior to 60 days following the end of the
applicable quarter, the Seller shall deliver (or cause to be delivered) to the Buyer as promptly as practicable following the
end of the applicable fiscal quarter unaudited condensed combined balance sheets and related statement of operations, comprehensive
income, business equity and cash flows of the Purchased Subsidiaries, together with the corresponding periods in the applicable
prior fiscal year, to the extent not previously provided, in each case giving effect to the Pre-Closing Transactions (the information
set forth in this Section 5.06(c), but only to the extent required to be delivered by Seller hereunder as of the date
of determination, the “Interim Financial Statements” and together with the Audited Financial Statements, the
“Required Financial Information”).
(d)
Seller shall deliver (or cause to be delivered) to the Buyer as promptly as practicable unaudited condensed combined statements
of operations of the Purchased Subsidiaries for the nine-month period ended February 22, 2015 and February 23, 2014, in each case
giving effect to the Pre-Closing Transactions.
(e)
Seller will deliver or cause to be delivered within 20 days following the end of each month following the date hereof,
a schedule of the amount and purpose of the capital expenditures made by the Purchased Subsidiaries during such preceding monthly
period.
Section 5.07.
Pre-Closing Transactions. Prior to the Closing the Seller shall complete the Pre-Closing Transactions and shall
provide reasonable evidence of such completion to Buyer.
Section 5.08.
Exclusivity. Seller shall, and shall cause the Purchased Subsidiaries and shall direct their respective directors,
officers, employees, representatives and agents to immediately cease and cause to be terminated any existing discussions or negotiations
with any Persons (other than the Buyer, the Seller and their respective Affiliates or any of their respective agents and representatives)
conducted heretofore on behalf of Seller or the Purchased Subsidiaries with respect to any Acquisition Transaction. None of Seller,
the Purchased Subsidiaries or any of their respective directors, officers, employees, representatives or agents will directly
or indirectly, solicit, initiate, facilitate, or knowingly encourage (including by way of furnishing or disclosing non-public
information) the making of any proposal with respect to any Acquisition Transaction or negotiate or otherwise facilitate, encourage,
solicit, initiate or engage in discussions, negotiations or submissions of proposals or offers with any Person (other than the
Buyer, the Seller and their respective Affiliates or any of their respective agents and representatives) with respect to any Acquisition
Transaction, enter into any written agreement, arrangement or understanding requiring it to abandon, terminate, or fail to consummate
the transactions contemplated by this Agreement or otherwise knowingly cooperate in any way with or assist or participate in,
facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing.
Section 5.09.
Waiver of Restrictions. Seller agrees that, after the Closing, it shall, and shall cause its Affiliates to,
upon request from Buyer, waive any restrictions that Seller or its
Affiliates may enforce against any other Person that would
prevent, impede or delay such Person from entering into negotiations, agreements, arrangements or understandings with Buyer with
respect to a possible transaction involving any portion of the Business or any of the Purchased Subsidiaries (including any restrictions
on such Persons with respect to potential financing sources).
Section 5.10.
Recordals for Registered Intellectual Property Rights. Prior to or promptly after the Closing Date, Seller
shall, at Seller’s expense, effect all (i) releases of all Liens (other than Permitted Liens) recorded against any Registered
Intellectual Property Rights, including, if applicable, releases of Liens (other than Permitted Liens) on Registered Intellectual
Property Rights for filing with the United States Patent and Trademark Office and the United States Copyright Office; (ii) effect
all necessary assignment, corrective change of ownership and recordals with the United States Patent and Trademark Office, the
United States Copyright Offices, and all other U.S., international and foreign Governmental Authorities, domain name registrars
and other similar authorities for all Registered Intellectual Property Rights where such Registered Intellectual Property Rights
is still recorded in the name of legal predecessors of the Purchased Subsidiaries or any Person other than the Purchased Subsidiaries
or where the relevant recordals for such Registered Intellectual Property Rights are incorrect for any other reason.
Section 5.11.
Documentation for Registered Intellectual Property Rights. To the extent in the possession or under the control
of Seller or any of its Affiliates (other than the Purchased Subsidiaries), the Seller shall provide (and shall cause its Affiliates
(other than the Purchased Subsidiaries) to provide) to the Buyer promptly after the Closing Date, (i) copies of all file histories
for the Registered Intellectual Property Rights; (ii) a list of the names, addresses, email addresses, and phone numbers of prosecution
counsel and agents for the Registered Intellectual Property Rights; and (iii) the current docket information (including information
on the payment of any registration, maintenance, or renewal fees or the filing of any documents, corrections, or replies to any
Governmental Authority) for the Registered Intellectual Property Rights.
Section
5.12. Redemption of Notes. With respect to that certain
(a) Senior Secured Indenture, dated as of August 14, 2009, by and among the Purchased Company, the guarantors party thereto and
Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), (b) First Supplement Indenture, dated as
of August 14, 2009, by and among the Purchased Company, the guarantors party thereto and the Trustee, providing for the issuance
by the Purchased Company of 6.625% notes due August 15, 2039, (c) Second Supplemental Indenture, dated as of July 26, 2010, by
and among the Purchased Company, the guarantors party thereto and the Trustee, providing for the issuance by the Purchased Company
of 4.950% notes due August 15, 2020, and (d) Third Supplemental Indenture, dated as of January 29, 2013, by and among the Purchased
Company, the guarantors party thereto and the Trustee, the Seller shall, and shall cause the Purchased Subsidiaries to, on or
before the Closing Date, redeem or repurchase all notes outstanding under any of the foregoing indentures, and pay or cause to
be paid all sums payable by the Purchased Company under any of the foregoing indentures (including any make-whole premiums owed
in connection with such redemptions or repurchases).
Article
6
Covenants of Buyer
Buyer agrees
that:
Section 6.01.
Confidentiality. All information provided or made available to Buyer, its Affiliates or any of their respective
Representatives pursuant to any of the Transaction Documents or in connection with any of the transactions contemplated thereby,
whether provided prior to or after the date hereof, shall be subject to the Confidentiality Agreement. The Confidentiality Agreement
shall terminate at the Closing with respect to that portion of the Confidential Information (as defined in the Confidentiality
Agreement) as relates to the Business and the Purchased Subsidiaries and otherwise shall continue in full force and effect following
the Closing. If this Agreement is terminated, for any reason, prior to the Closing, the Confidentiality Agreement shall continue
in full force and effect in accordance with its terms. However, Seller acknowledges and agrees that notwithstanding anything to
the contrary in this Agreement or in the Confidentiality Agreement (including Section 3 thereof which shall terminate and be of
no further force and effect as of the Closing Date), following the Closing Date, Buyer shall not be prohibited, directly or indirectly,
from entering into negotiations, agreements, arrangements or understandings with any other Person with respect to a possible transaction
involving the sale of any portion of the Business or any of the Purchased Subsidiaries, and Buyer may share any Confidential Information
(as defined in the Confidentiality Agreement) with such other Person for that purpose; provided, however, that Buyer
shall cause such other Persons to execute a confidentially or similar agreement that provides substantially similar protections
of Seller’s and the Purchased Subsidiaries’ confidential information as set forth in the Confidentiality Agreement.
Buyer shall not, and shall cause its controlled Affiliates and Representatives not to, directly or indirectly, without Seller’s
consent, disclose to any third party (other than each other and their respective Representatives and the Financing Sources and
their respective Representatives) any of the terms or conditions of any of the Transaction Documents (other than this Agreement
(but excluding, for clarity, the exhibits and schedules to the Agreement)); provided that the foregoing restriction shall
not (a) apply to any information generally available to, or known by, the public (other than as a result of disclosure in violation
of this Section 6.01) or (b) prohibit any disclosure (i) required by Applicable Law so long as, to the extent practicable
and legally permissible, Buyer provides Seller with reasonable prior notice of such disclosure and a reasonable opportunity (at
Seller’s sole expense) to contest such disclosure or to seek and obtain confidential treatment with respect to all or any
portion of such disclosure or (ii) made in connection with the enforcement of any right or remedy relating to any of the Transaction
Documents or the transactions contemplated thereby.
Article
7
Covenants of Buyer and Seller
Buyer and
Seller agree that:
Section 7.01.
Reasonable Best Efforts; Further Assurance. (a) Subject to the terms and conditions of this Agreement, Buyer
and Seller shall use their respective reasonable best efforts to take, or cause to be taken, all actions (including instituting
litigation or any other Action) and to do, or cause to be done, all things necessary or desirable under Applicable Law to consummate
the transactions contemplated by this Agreement and the other Transaction Documents as soon as practicable, including (i) preparing
and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary
or desirable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents
and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations
required to be obtained from any Governmental Authority or other third party that are necessary or desirable to consummate the
transactions contemplated by this Agreement and the other Transaction Documents as soon as practicable. Seller and Buyer agree
to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may
be necessary or desirable in order to consummate or implement expeditiously the transactions contemplated by this Agreement, to
vest in Buyer ownership of the Purchased Subsidiaries.
(b)
In furtherance and not in limitation of the foregoing, each of Buyer and Seller shall make required filings pursuant to
applicable Competition Laws, including the filing of a Notification and Report Form pursuant to the HSR Act, a pre-merger notification
form and request for an Advance Ruling Certificate pursuant to the Competition Act, with respect to the transactions contemplated
by this Agreement as promptly as practicable. Each of Buyer and Seller shall supply as promptly as practicable any additional
information and documentary material that may be requested pursuant to the HSR Act and any other applicable Competition Laws and
shall take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting periods under
the HSR Act and any other Competition Laws, and to obtain Competition Act Approval, as soon as practicable. The Buyer and Seller
will each pay half of all filing fees incurred in connection with the filings contemplated in this Section 7.01.
(c)
If any objections are asserted with respect to the transactions contemplated by this Agreement or any other Transaction
Documents under the HSR Act or any other applicable Competition Law, or if any Action is instituted or threatened by any Governmental
Authority or any private party challenging any of the transactions contemplated by this Agreement or any other Transaction Document
as violative of the HSR Act or any other Competition Law, Buyer shall use its best efforts to promptly resolve such objections.
In furtherance of the foregoing, Buyer shall, and shall cause its Subsidiaries and Affiliates to, take all actions, including
(i) agreeing to hold separate or to divest any of the businesses or properties or assets of Buyer or any of its Affiliates
and any assets of any Purchased Subsidiary, (ii) terminating any existing relationships and contractual rights and obligations,
(iii) terminating any venture or other arrangement, (iv) creating any relationship, contractual rights or obligations
of the Purchased Subsidiaries or Buyer or any of its Affiliates; (v) effectuating any other change or restructuring of the
Purchased Subsidiaries or Buyer or any of its Affiliates and (vi) opposing, fully and vigorously, (A) any administrative
or judicial action or proceeding that is initiated or threatened to be initiated challenging this Agreement or the consummation
of the transactions contemplated
hereby and (B) any request for, the entry of, and seek to have vacated or terminated, any
order that could restrain, prevent or delay the consummation of the transactions contemplated hereby, including in the case of
either (A) or (B) by defending through litigation any action asserted by any Person in any
court or before any Governmental Authority, and vigorously pursuing all available avenues of administrative and judicial appeal
(and, in each case, to enter into agreements or stipulate to the entry of an order or decree or file appropriate applications
with any Governmental Authority in connection with any of the foregoing and in the case of actions by or with respect to the Purchased
Subsidiaries, by consenting to such action), as may be required (x) by the applicable Governmental Authority in order to resolve
such objections as such Governmental Authority may have to such transactions under the HSR Act or any other applicable Competition
Law or (y) by any domestic or foreign court or other tribunal, in any Action challenging such transactions as violative of the
HSR Act or any other applicable Competition Law, in order to avoid the entry of, or to effect the dissolution, vacating, lifting,
altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions
contemplated by this Agreement as soon as practicable and in any event prior to June 24, 2016.
Section 7.02.
Certain Filings. Seller and Buyer shall cooperate with one another (i) in determining whether any action
by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, approvals or waivers are
required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated
by this Agreement or the other Transaction Documents and (ii) in taking such actions or making any such filings, furnishing information
required in connection therewith and seeking to obtain any such actions, consents, approvals or waivers in a timely manner. To
the extent permitted by the relevant Governmental Authority and Applicable Law, Buyer and Seller shall (a) allow each other (including
their outside counsel) to attend and participate in all meetings, discussions and other communications with all Governmental Authorities
in connection with the review of the transaction contemplated by this Agreement; (b) promptly and fully inform each other of any
written or material oral communications received from or given to any Governmental Authority relating to the transactions contemplated
by this Agreement and provide them with copies of any such written communication; (c) permit each other to review in advance,
with reasonable time and opportunity to comment, any proposed submission, correspondence or other communication to any Governmental
Authority; and (d) provide reasonable prior notice to and, to the extent practicable, consult with each other in advance of any
meeting, material conference or material discussion with any Governmental Authority relating to the transaction. Without limiting
in any respect the parties’ obligations contained in this Agreement, in the event that the parties disagree with respect
to strategy or tactics in connection with a Governmental Authority’s review of the transaction, Buyer’s decision will
control.
Section 7.03.
Public Announcements. The parties agree to obtain the written consent (which shall not be unreasonably withheld,
conditioned or delayed) of the other before issuing any press release or making any public statement with respect to the Transaction
Documents or the transactions contemplated thereby; provided, however, that a party may, without the prior consent
of the other party, but only following consultation with the other party to the extent
practicable, issue such public disclosure
as may be required by Applicable Law or any listing agreement with any national securities exchange to which the disclosing party
is subject.
Section 7.04.
Notices of Certain Events. Each of Seller and Buyer shall promptly notify the other party of: (i) any
notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with
the transactions contemplated by any Transaction Documents if the failure to obtain such consent would be reasonably likely to
have a Material Adverse Effect; (ii) any material notice or other communication from any Governmental Authority in connection
with the transactions contemplated by any Transaction Documents; (iii) the commencement of any Action that, if pending on
the date of this Agreement, would have been required to be disclosed pursuant to, in the case of Seller, Section
3.11, or, in the case of Buyer, Section 4.06; or (iv) any fact or occurrence which any such party obtains knowledge
after the date hereof and which if existing and known at the date of this Agreement would have been required to be set forth or
disclosed in or pursuant to this Agreement and which would cause a condition to any party’s obligations under this Agreement
not to be fully satisfied. Seller will, as soon as reasonably practicable, advise Buyer of any knowledge of Seller of a breach
(notwithstanding any grace or cure period) of any Material Contract after the date hereof which would reasonably be expected to
result in the modification, amendment, termination or cancellation of such Material Contract. Notwithstanding anything to the
contrary contained herein, Seller’s failure to comply with this Section 7.04 shall not, in and of itself, (x)
be taken into account in determining whether the conditions set forth in Section 10.02 have been satisfied or (y)
entitle any Buyer Indemnified Party to indemnification, except to the extent such Buyer Indemnified Party was actually prejudiced
by such failure.
Section 7.05.
Non-solicit; Non-hire. (a) For a period of 18 months following the Closing Date, Seller shall not, and shall
cause its Subsidiaries not to, directly or indirectly solicit (or cause to be directly or indirectly solicited) for employment
any employee of Buyer or its Subsidiaries who is a Transferred Employee as of immediately following the Closing (any such employee,
a “Covered Business Employee”); provided that (i) the foregoing restriction shall not apply to
(A) generalized searches for employees through media advertisements of general circulation, employment search firms, open
job fairs or other similar means which are not specifically targeted at such Covered Business Employees or hiring any person that
responds to the same or (B) any Covered Business Employee whose employment is terminated by the Buyer or any of its Affiliates
(including any Purchased Subsidiary) and (ii) with respect to any Covered Business Employee who voluntarily ceases employment
with Buyer or its Affiliates (including any Purchased Subsidiary), the foregoing restriction shall terminate upon the date that
is six months following the cessation of such Covered Business Employee’s employment with Buyer or its Affiliates (including
any Purchased Subsidiary). Notwithstanding the foregoing, Seller and its Subsidiaries shall not, directly or indirectly, employ
or engage in consulting or any other business activity with any Key Employee for a period of twelve months following the Closing
Date.
(b)
For a period of 18 months following the Closing Date, Buyer shall not, and shall cause its Affiliates (including the Purchased
Subsidiaries) not to, directly or indirectly solicit (or
cause to be directly or indirectly solicited) for employment any person
who is at the time of such solicitation or was within the six months preceding such solicitation an employee of Seller or any
of its Subsidiaries (other than any Transferred Employee) with the title of “Director” (or any comparable or senior
title) and/or in a plant manager role and/or with whom Buyer had contact or who (or whose performance) became known to Buyer in
connection with Buyer’s evaluation, negotiation or consummation of the transactions contemplated hereby; provided
that (i) the foregoing restriction shall not apply to (A) generalized searches for employees through media advertisements
of general circulation, employment search firms, open job fairs or other similar means which are not specifically targeted at
such persons or hiring any person who responds to the same or (B) any such person whose employment is terminated by Seller
or any of its Affiliates, (ii) with respect to any such person who voluntarily ceases employment with Seller or its Affiliates,
the foregoing restrictions shall terminate upon the date that is six months following the cessation of such person’s employment
with Seller or its Affiliates and (iii) in the case of employees of Seller or its Subsidiaries who provide services to Buyer
pursuant to the Transition Services Agreements, the foregoing restriction shall apply until the 18-month anniversary of the last
date on which the services of such employees are provided pursuant thereto (provided that this clause (iii) shall
not apply to any person whose employment is terminated by Seller or any of its Affiliates other than for cause).
Section 7.06.
Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege. (a) Buyer waives
and agrees not to assert, and agrees to cause its Affiliates (including, after the Closing, the Purchased Subsidiaries) to waive
and not to assert, any conflict of interest arising out of or relating to the representation, after the Closing (the “Post-Closing
Representation”), of Seller or any of its Affiliates or any shareholder, officer, employee or director of Seller or
any of its Affiliates (any such Person, a “Designated Person”) in any matter involving or relating to this
Agreement or any other Transaction Document or the transactions contemplated hereby or thereby, by any legal counsel currently
representing Seller or any of its Affiliates, including any Purchased Subsidiary, in connection with this Agreement or any other
Transaction Document or the transactions contemplated hereby or thereby (the “Current Representation”).
(b)
Buyer waives and agrees not to assert, and agrees to cause its Affiliates (including, after the Closing, the Purchased
Subsidiaries) to waive and to not assert, any attorney-client privilege with respect to any communication between any legal counsel
and any Designated Person occurring during the Current Representation in connection with any Post-Closing Representation, including
in connection with a dispute with Buyer or any of its Affiliates, and following the Closing, with any Purchased Subsidiary, it
being the intention of the parties hereto that all such rights to such attorney-client privilege and to control such attorney-client
privilege shall be retained by Seller; provided that the foregoing waiver and acknowledgement of retention shall not extend
to any communication not involving this Agreement or any other Transaction Document or the transactions contemplated hereby or
thereby, or to communications with any Person other than the Designated Persons and their advisers.
(c)
Buyer, on behalf of itself and its Affiliates (including, after the Closing, the Purchased Subsidiaries) agrees that no
communications (including email or other written communications) subject to attorney-client privilege in connection with the Current
Representation shall be subject to disclosure, directly or indirectly, to Buyer or any Person acting on behalf of Buyer, and the
Purchased Subsidiaries shall, without the necessity of further documentation of transfer, be deemed to have irrevocably assigned
and transferred to Seller the attorney-client privilege and expectation of client confidence with respect to all such communications,
and all books and records and other documents of the Purchased Company or the Purchased Subsidiaries containing any such advice,
communication or other materials, and the same shall be controlled by Seller and shall not be claimed by, and no copies shall
be retained by, Buyer or any Purchased Subsidiary.
(d)
Nothing in this Section is intended to or shall be deemed to operate as a waiver of any applicable privilege or protection
that could be asserted to prevent disclosure of any confidential communication by any legal counsel currently representing Seller
or any of its Affiliates, including any Purchased Subsidiary.
(e)
Seller and Buyer agree to take, and to cause their respective Affiliates to take, all steps reasonably necessary to implement
the intent of this Section 7.06.
Section 7.07.
Access to Information; Cooperation. (a) From the date hereof until the Closing Date (or, if earlier, the termination
of this Agreement), and subject to Applicable Law and the Confidentiality Agreement, Seller will (i) give Buyer, its counsel and
other authorized Representatives (including the Financing Sources and any other potential financing sources) full access to the
properties, books and records of the Purchased Subsidiaries, (ii) furnish to Buyer, its counsel and other authorized Representatives
(including the Financing Sources and any other potential financing sources) such financial and operating data and other information
relating to the Purchased Subsidiaries as such Persons may reasonably request, (iii) instruct the employees, independent accountants,
counsel and financial advisors of Seller to fully cooperate with Buyer in its investigation of the Purchased Subsidiaries and
(iv) no later than the Closing Date, provide to Buyer copies of all material environmental compliance audits conducted since January
29, 2013 that are in the possession or under the control of the Seller and relating to the Real Property. Notwithstanding the
foregoing, from the date hereof until the Closing Date, Buyer and its agents shall not (A) conduct or cause to be conducted, without
Seller’s prior written consent, any invasive, intrusive or destructive inspections or other sampling or testing of the properties
of the Purchased Subsidiaries, including of the air, soil, soil gas, surface water, groundwater, building materials or other environmental
media thereon, (B) have access to any information to the extent relating to any Retained Business or (C) have access to any Seller
Tax Records.
(b)
From the date hereof until the seven year anniversary of the Closing Date, upon reasonable request, Buyer will afford promptly
to Seller and its authorized Representatives reasonable access to its properties, books, records, employees and auditors (i) to
the extent requested to permit Seller to prepare the Closing Statement, and (ii) to the extent requested to permit Seller or any
of its Affiliates to comply with their financial reporting, accounting or
auditing obligations with respect to any period ending
before the Closing Date, (iii) in connection with any Action related to the conduct or ownership of the Purchased Subsidiaries
for which Seller or such Affiliate has retained any liability under this Agreement and (iv) otherwise to the extent reasonably
required by Seller.
(c)
Any access granted to either party or its Representatives pursuant to this Section 7.07 shall
be (x) conducted in such manner as not to interfere unreasonably with the conduct of the business of the party granting such access
and (y) subject to compliance by the Person receiving such access with the Seller’s facility entry policies and procedures.
The party to whom such access or other cooperation is granted pursuant to this Section 7.07 shall bear all of
the out-of-pocket costs and expenses (including attorneys’ fees, but excluding reimbursement for general overhead, salaries
and employee benefits (other than administrative overhead directly attributable to requests for access made by or on behalf of
Buyer (e.g., overtime))) reasonably incurred by the other party or its Representatives in connection therewith.
(d)
Notwithstanding anything to the contrary contained herein, nothing in this Section 7.07 shall require
(A) Seller or Buyer, as applicable, to provide the other party or its Representatives with access to (i) personnel records of
employees relating to individual performance or evaluation records, medical histories or other information which, in the disclosing
party’s good faith opinion, is sensitive or the disclosure of which could subject such party or its Affiliates to risk of
liability or violation of any data privacy laws or (ii) information the disclosure of which, in the disclosing party’s good
faith opinion (x) would conflict with confidentiality obligations to which such party or any of its Affiliates is bound or (y)
would reasonably be expected to result in the forfeiture or waiver of any attorney-client or similar privilege; provided
that, in the case of this clause (y), the disclosing party shall use reasonable best efforts to provide the other party, to the
extent possible, with access to the relevant information in a manner that would not reasonably be expected to result in the forfeiture
or waiver of any such attorney-client or similar privilege, (B) either party’s independent accountants to make available
to the other party or its Representatives any work papers unless and until such Person has signed a customary confidentiality
and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such independent
accountants or (C) Seller to provide any cost or pricing information for any of Seller’s products that compete directly
with Buyer’s products; provided, however, that Seller shall provide any such competitively sensitive cost
or pricing information referred to in the foregoing clause (C) to Buyer pursuant to the terms of that certain Clean Team Agreement,
dated as of August 21, 2015, by and between Buyer and Seller.
Section 7.08.
Phase-out of Seller Retained Marks. (a) As soon as reasonably practicable after the Closing, but in any event, no
later than 12 months immediately after the Closing, Buyer shall, and shall cause the Purchased Subsidiaries to, (i) cease all
use of the Seller Retained Marks, (ii) deplete the inventory, labeling, stationery, forms, supplies, displays, advertising and
promotional materials, manuals, and other materials existing as of Closing that bear any Seller Retained Mark or remove, destroy
or strike over all Seller Retained Marks from the foregoing, (iii) remove all Seller Retained Marks from all assets, websites,
email and other online materials
and from all signage and other displays and (iv) no later than 10 days after the Closing, file
amendments to the Purchased Subsidiaries’ certificates of incorporation, articles of association or other organizational
documents with the applicable Governmental Authorities changing the names of the Purchased Subsidiaries to names that do not include
any of the Seller Retained Marks (or any variation or derivative thereof) or any other mark that is confusingly similar thereto.
Following the Closing, none of Buyer, its Affiliates or any of the Purchased Subsidiaries shall contest the validity or ownership
of any of the Seller Retained Marks or adopt or employ any Seller Retained Mark (or any variation or derivative thereof) or any
other Trademark that is confusingly similar thereto.
(b)
Without limiting the rights and obligations set forth in Section 7.08(a), subject to the terms and conditions
of this Agreement, the Seller (on behalf of itself and its Affiliates) hereby grants the Purchased Subsidiaries a limited, non-exclusive,
non-transferable, non-sublicensable, royalty-free right and license, during the period commencing on the Closing Date and ending
12 months immediately after the Closing Date, to use the Specific Seller Retained Marks but solely in connection with the distribution,
marketing, promotion and sale of the products of the Business existing as of the Closing Date that utilize such Specific Seller
Retained Marks as of the Closing Date. The Purchased Subsidiaries shall use the Specific Seller Retained Marks solely in the form
stipulated by the Seller and its Affiliates and shall conform to and observe such standards as the Seller and its Affiliates from
time to time prescribe, including standards relative to the (i) quality of products which bear the Specific Seller Retained Marks,
(ii) design and appearance of the Specific Seller Retained Marks, and (iii) manner, disposition and use of the Specific Seller
Retained Marks provided that such form and standards shall not vary in any material respect from the form and standards applicable
to the Specific Seller Retained Marks as of the Closing Date. The Seller shall have the right, upon request by Seller, to inspect
any product, material, designation, document or other media bearing the Specific Seller Retained Marks, including any marketing
or promotional material. For the avoidance of doubt, no inspection or Seller approval is necessary with respect to any product,
material, designation, document or other media bearing the Specific Seller Retained Marks which existed, or is substantially similar
to any such item which existed, prior to the Closing. All goodwill associated with the use of the Specific Seller Retained Marks
by the Purchased Subsidiaries shall inure to the sole and exclusive benefit of the Seller or its Affiliate, as applicable.
Section 7.09.
Transition License to Specific Purchased Marks. Subject to the terms and conditions of this Agreement, Buyer (on
behalf of itself and its Subsidiaries, including after the Closing, the Purchased Subsidiaries) hereby grants Seller and its Affiliates
a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license, during the period commencing on
the Closing Date and ending 12 months immediately after the Closing Date, to use the Specific Purchased Marks but solely in connection
with the distribution, marketing, promotion and sale of the products of Seller or its Affiliates existing as of the Closing Date
that utilize such Specific Purchased Marks as of the Closing Date. Seller and its Affiliates shall use the Specific Purchased
Marks solely in the form stipulated by the Purchased Subsidiaries and shall conform to and observe such standards as the Purchased
Subsidiaries from time to time prescribe, including standards relative to the (i) quality of products which bear the Specific
Purchased Marks, (ii) design and appearance of the Specific Purchased Marks, and (iii) manner, disposition and use of the Specific
Purchased Marks provided that such form and standards shall not vary in any material respect from the form and standards applicable
to the Specific Purchased Marks as of the Closing Date. The Purchased Subsidiaries shall have the right, upon request by a Purchased
Subsidiary, to inspect any product, material, designation, document or other media bearing the Specific Purchased Marks, including
any marketing or promotional material. For the avoidance of doubt, no inspection or Purchased Subsidiary approval is necessary
with respect to any product, material, designation, document or other media bearing the Specific Purchased Marks which existed,
or is substantially similar to any such item which existed, prior to the Closing. All goodwill associated with the use of the
Specific Purchased Marks by the Seller or its Affiliates shall inure to the sole and exclusive benefit of the Purchased Subsidiaries,
as applicable.
Section 7.10.
Insurance Coverage. From and after the Closing, the Purchased Subsidiaries shall cease to be insured
by the Seller’s insurance policies or by any of its self-insurance programs and the Seller shall retain all rights to control
such insurance policies and self-insurance programs, including the right to exhaust, settle, release, commute, buy back or otherwise
resolve disputes with respect to any of its insurance policies and self-insurance programs. The parties acknowledge that the Purchased
Subsidiaries and the Business may be entitled to the benefit of coverage under the insurance policies made available through Seller
as described on Section 7.10(a) of the Disclosure Schedule (the “Retained Policies”), and
the Retained Subsidiaries and the Retained Business may be entitled to the benefit of coverage under the insurance policies made
available through the Purchased Subsidiaries as described on Section 7.10(b) of the Disclosure Schedule
(the “Purchased Policies”), in each case with respect to acts, facts, circumstances or omissions occurring
prior to Closing (“Pre-Closing Occurrences”), and (a) Buyer hereby authorizes Seller to report any and all
Pre-Closing Occurrences arising in connection with the Retained Subsidiaries or the Retained Business to the applicable insurance
providers to the extent permitted under the Purchased Policies, and where not permitted, agrees to make such report on Seller’s
behalf (“Purchased Policy Claims”) and (b) Seller hereby authorizes Buyer to report any and all Pre-Closing
Occurrences arising in connection with the Purchased Subsidiaries or the Business to the applicable insurance providers to the
extent permitted under the Retained Policies, and where not permitted, agrees to make such report on Buyer’s behalf (“Retained
Policy Claims”). With respect to claims for Pre-Closing Occurrences made pursuant to the preceding sentence, whether
reported to the applicable insurance provider by Sellers or by Buyer, each party shall, and shall cause its respective Affiliates
to, use commercially reasonable efforts to obtain the benefit of the applicable insurance coverage and pay such benefit, if any,
to Seller (in respect of Purchased Policy Claims) or to Buyer (in respect of Retained Policy Claims) (net of any Recovery Costs
incurred by Buyer or by Seller, respectively, as a result of the same); provided that, (x) Seller shall be fully liable
for all uninsured or self-insured amounts in respect of any Purchased Policy Claims and Buyer shall be fully liable for all uninsured
or self-insured amounts in respect of any Retained Policy Claims, and (y) Seller (if in respect of Purchased Policy Claims) or
Buyer (if in respect of Retained Policy Claims) agrees to reimburse the other party promptly upon request for all out-of-pocket
and documented costs or expenses incurred by such other party or any Affiliate of such
other party in connection with making or
pursuing any claim pursuant to this Section 7.10, including the costs of filing a claim and any deductibles, premium
increases or other amounts that are or become payable by such other party or any Affiliate of such other party under the applicable
insurance policies or self-insurance programs as a result of claims made pursuant to this Section 7.10 (such costs
and expenses referred to in this clause (y), “Recovery Costs”). With respect to Pre-Closing Occurrences, Seller
(with respect to the Retained Policies) and Buyer (with respect to the Purchased Policies) shall maintain the coverage in effect
as of the Closing Date, or substantially similar coverage, in full force and effect.
Section 7.11.
Replacement of Guaranties. On or prior to Closing, Seller and Buyer shall use their reasonable best efforts
to cause the replacement, effective as of the Closing, of the letters of credit, guaranties, financial assurances, surety bonds,
performance bonds and other contractual obligations entered into by or on behalf of Seller or any of its Affiliates (other than
solely by any Purchased Subsidiary) in connection with the Purchased Subsidiaries, including those listed in Section
7.11 of the Disclosure Schedule; provided that if any such letter of credit, guaranty, financial assurance, surety bond,
performance bond or other contractual obligation is not replaced effective as of the Closing, Buyer shall indemnify Seller and
its Affiliates against, and hold each of them harmless from, any and all Damages incurred or suffered by Seller or any of its
Affiliates related to or arising out of the same.
Section 7.12.
Financing. (a) Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable to obtain the Debt Financing on the terms and conditions
(including the flex provisions) described in the Debt Financing Commitments and Buyer shall not agree to or permit any amendment
or modification to be made to, or any waiver of any provision or remedy under, the Debt Financing Commitments without the prior
written consent of the Seller, if such amendment, modification or waiver would (x) reduce the aggregate amount of the Debt Financing
below the amount required to consummate the transactions contemplated hereby, unless such reduction constitutes a Permitted Commitment
Reduction or (y) impose new or additional conditions or otherwise amend, modify or expand any conditions precedent to the receipt
of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing, (ii) make the funding
of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (iii) adversely
impact the ability of Buyer to enforce its rights against the other parties to the Debt Financing Commitments or the definitive
agreements with respect thereto, the ability of Buyer to consummate the purchase of the Shares or the likelihood of consummation
of the purchase of the Shares (provided, however, that Buyer may replace or amend the Debt Financing Commitments
(A) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing
Commitments as of the date of this Agreement, in each case in accordance with the Debt Financing Commitments as of the date hereof
so long as the addition of such parties could not reasonably be expected to have any of the effects described in clauses (i)
through (iii) above, (B) to correct typographical errors and (C) in accordance with the “market flex”
provisions thereof. Upon any such amendment, replacement, supplement or modification of the Debt Financing Commitments in
accordance
with this Section 7.12(a), the Buyer shall provide, within two days, an executed copy thereof to the Seller and the
term “Debt Financing Commitments” shall mean the Debt Financing Commitments as so amended, replaced, supplemented
or modified in accordance with this Section 7.12(a).
(b)
The Buyer shall use reasonable best efforts to (i) subject to any Permitted Commitment Reduction, maintain in effect the
Debt Financing Commitments until the Closing, (ii) satisfy on a timely basis all conditions and covenants applicable to Buyer
in the Debt Financing Commitments and otherwise comply with its obligations thereunder, (iii) negotiate and enter into definitive
agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contemplated by the
Debt Financing Commitments (provided that the Buyer shall not be obligated to negotiate and enter into any definitive agreements
with respect to any bridge financing to the extent the Buyer reasonably believes that the commitments of the Financing Sources
with respect thereto will be reduced to zero (0) pursuant to a Permitted Commitment Reduction on or prior to the Closing Date),
(iv) upon satisfaction of the conditions contained in the Debt Financing Commitments, consummate the Debt Financing at Closing,
and (v) enforce its rights under the Debt Financing Commitments. Without limiting the generality of the foregoing, Buyer shall
give the Seller prompt notice (which shall in no event be more than two Business Days from its knowledge thereof): (A) of any
material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably
be expected to give rise to any breach or default) by any party to any Debt Financing Commitment or definitive document related
to the Debt Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to
any: (1) breach, default, termination or repudiation by any party to any Debt Financing Commitment or any definitive document
related to the Debt Financing or any provisions of any Debt Financing Commitment or any definitive document related to the Debt
Financing or (2) material dispute or disagreement between or among any parties to any Debt Financing Commitment or any definitive
document related to the Debt Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect
to the terms of the Debt Financing or any definitive agreement with respect thereto); and (C) if Buyer will not be able to obtain
all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitments
or the definitive documents related to the Debt Financing. As soon as reasonably practicable, but in any event within two Business
Days after the date the Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by
the Seller relating to any circumstance referred to in clause (A), (B) or (C) of the immediately
preceding sentence; provided that in no event will Buyer be under any obligation to disclose any information that is subject
to attorney-client or similar privilege if Buyer shall have used reasonable best efforts to disclose such information in a way
that would not waive such privilege. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including
the flex provisions contained in the Redacted Fee Letter and excluding a Permitted Commitment Reduction) contemplated in the Debt
Financing Commitments, Buyer shall use its reasonable best efforts to arrange and obtain alternative financing from alternative
sources in an amount sufficient to consummate the acquisition of the Shares on terms not materially less favorable from the standpoint
of Buyer and the Seller than those in the Debt
Financing Commitments (taking into account the flex provisions) as promptly as
practicable following the occurrence of such event but no later than the Business Day immediately prior to the Closing Date (any
such transaction or other replacement of all or any portion of the Debt Financing, an “Alternate Debt Financing”).
Buyer shall promptly provide a correct and complete copy of each Alternate Debt Financing commitment (together with a redacted
copy of any related fee letter) to the Seller. Nothing herein shall prohibit Buyer from seeking to replace all or a portion of
the Debt Financing or any Alternate Debt Financing with proceeds from a Securities Financing.
(c)
Prior to the Closing, the Seller shall use its best efforts to, and to cause the Purchased Subsidiaries to, and shall use
its reasonable best efforts to cause their respective Representatives to, provide to Buyer, at the Seller’s sole expense,
all cooperation reasonably requested by Buyer in connection with the arrangement and consummation of the Debt Financing (including
the satisfaction of the conditions precedent set forth therein), any Alternate Debt Financing as set forth in Section
7.12(b), or any Securities Financing, including (in each case, to the extent reasonably requested):
(i)
participating in a reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting
due diligence sessions), drafting sessions and sessions between senior management and prospective lenders, investors and rating
agencies;
(ii)
assisting with the preparation of materials for rating agency presentations (and assisting in the obtaining of corporate,
credit and facility ratings from ratings agencies), offering documents, private placement memoranda, prospectus supplements, bank
information memoranda and similar documents required in connection with the Debt Financing, any Alternate Debt Financing and any
Securities Financing (including customary authorization and management representation letters) and all documentation and other
information required in connection with applicable “know your customer” and anti-money laundering rules and regulations,
including the U.S.A. Patriot Act of 2001;
(iii)
(A) assisting with the execution and delivery of any pledge and security documents, currency or interest hedging arrangements,
payoff and release letters, lien terminations, other definitive financing documents, or other certificates or documents as may
be reasonably requested by Buyer; (B) assisting with obtaining consents of accountants for use of their reports in any materials
relating to the Debt Financing and (C) cooperating to facilitate the pledging of collateral (including delivery to the Buyer of
(x) original certificates evidencing all outstanding shares, membership interests or other voting or equity interests (in each
case, to the extent evidenced by a certificate) of the Purchased Subsidiaries on or prior to the Closing Date and (y) any documents
requested by Buyer in connection with the preparation of intellectual property schedules);
(iv)
furnishing Buyer and the Financing Sources, as applicable, as promptly as practicable with the Required Financial Information;
(v)
Seller shall provide as promptly as practicable such other pertinent and customary financial and other information (including
a management’s discussion and analysis of the Purchased Subsidiaries) relating to the Purchased Subsidiaries as Buyer shall
reasonably request in order to market, syndicate and consummate the Debt Financing or any Alternate Debt Financing or consummate
any Securities Financing; it being understood that in no event shall the information required to be delivered by the Seller pursuant
to this clause (iv) be deemed to include or shall the Seller otherwise be required to provide (A) any description
of the Securities Financing or the Debt Financing or any Alternate Debt Financing, including any such description to be included
in liquidity and capital resources disclosure or any “description of notes,” (B) risk factors relating to the Debt
Financing, any Alternate Debt Financing or any Securities Financing, (C) separate subsidiary financial statements or any other
information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or “segment reporting,” (D)
Compensation Disclosure and Analysis required by Regulation S-K Item 402(b) or (E) any financial statements other than the Required
Financial Information;
(vi)
notwithstanding anything to the contrary in Section 7.12(c)(v), in providing monthly income statements
(excluding footnotes) of the Purchased Subsidiaries promptly following the 15th day after the end of the relevant monthly period;
and
(vii)
using reasonable best efforts to assist Buyer in obtaining accountants’ comfort letters, consents, surveys, legal
opinions from local outside counsel and title insurance as reasonably requested by Buyer for financings similar to the Debt Financing.
Nothing in
this Section 7.12(c) shall require such cooperation to the
extent it would interfere unreasonably with the business or operations of the Seller or its Subsidiaries. Neither the Seller nor
any of its Subsidiaries shall be required pursuant to this Section
7.12(b) to enter into or perform under any certificate, agreement, document or other instrument that is not contingent upon the
Closing or that would be effective prior to the Closing (other than the authorization letters and management representation letters
referred to in Section 7.12(c)(ii)) or, at Closing, effective
with respect to any entities other than the Purchased Subsidiaries. None of the Seller or any of its Subsidiaries shall be required
to take any action pursuant to this Section 7.12(c) that
would subject it to actual or potential liability for which it would not be indemnified hereunder or to bear any cost or expense
or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) or provide
or agree to provide any indemnity in connection with the Debt Financing, any Alternate Debt Financing, any Securities Financing
or any of the foregoing prior to the Closing. Buyer shall indemnify and hold harmless the Seller, its Subsidiaries and its and
their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments
and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing, any Alternate Debt Financing
or any Securities Financing (including any action taken in accordance with this Section
7.12(c)) and any information utilized in connection therewith (provided, however, that the indemnification obligation set forth
in this provision shall not prejudice
Buyer’s indemnification rights as provided in Section 11.02). Buyer shall, promptly
upon request by the Seller, reimburse the Seller for all reasonable out-of-pocket costs incurred by the Seller or its Subsidiaries
in connection with this Section 7.12(c). The Seller hereby
consents to the use of logos associated with the Business in connection with the Debt Financing; provided that such logos
shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the
Seller or any of its Subsidiaries.
(d)
Buyer acknowledges and agrees that the obtaining of the Debt Financing, or any Alternate Debt Financing or any Securities
Financing, is not a condition to Closing and reaffirm their obligation to consummate the transactions contemplated by this Agreement
irrespective and independently of the availability of the Debt Financing or any Alternate Debt Financing, subject to fulfillment
or waiver of the conditions set forth in Article 10. In addition, the completion of the issuance of the senior notes
pursuant to the Debt Financing Commitments is not a condition to Closing. In the event that all or any portion of the Debt Financing
to be obtained through the issuance of the senior notes as contemplated by the Debt Financing Commitments or any equity or other
Securities Financing, has not been obtained on or prior to the Closing, Buyer shall use its reasonable best efforts to cause,
no later than the Closing, the bridge facility to be drawn and the proceeds of the bridge facility contemplated by the Debt Financing
Commitments to be used to replace such portion of the senior notes and/or equity not issued at Closing.
(e)
For purposes of this Agreement,
(i)
the term “Marketing Period” shall mean the first period of 20 consecutive Business Days throughout which
(i) Buyer shall have all of the Required Financial Information and such Required Financial Information is Compliant, and (ii)
the conditions set forth in Section 10.01 shall be satisfied or waived (other than those conditions that by
their nature can only be satisfied at the Closing) and nothing has occurred and no condition exists that would cause any of the
conditions set forth in Section 10.02 to fail to be satisfied, assuming that the Closing Date were to be scheduled
for any time during such 20 consecutive Business Day period; provided that the Marketing Period will not be deemed to commence
if prior to the completion of the Marketing Period, (1) the Seller’s auditors shall have withdrawn their audit opinion contained
in the Required Financial Information or (2) the financial statements included in the Required Financial Information that is available
to Buyer on the first day of any such 20 consecutive Business Day period would be required to be updated in order to be Compliant
in accordance with Section 7.12(e)(ii) on any day during such 20 consecutive Business Day period, in which
case the Marketing Period shall not be deemed to commence until the receipt by Buyer of such Compliant updated financial statements;
provided, further, that the Marketing Period shall end on any earlier date that is the date on which all of the Debt Financing
or any Alternate Debt Financing as set forth in Section 7.12(b) is obtained; provided, further, that
if the Seller shall in good faith reasonably believe it has delivered the applicable Required Financial Information, it may deliver
to Buyer written notice to that effect (stating when it believes it completed such delivery), in which case the Marketing Period
shall be deemed to have commenced on the
date specified in that notice unless Buyer in good faith reasonably believes the Seller
has not completed delivery of the Required Financial Information and, within two Business Days after the delivery of such notice
by the Seller, delivers a written notice to the Seller to that effect (stating with reasonable specificity which Required Financial
Information Parent reasonably believes the Seller has not delivered); provided, further, that, notwithstanding the
foregoing, (a) under no circumstances shall the Marketing Period commence prior to January 4, 2016; (b) in the event that Compliant
Required Financial Information is not delivered by Seller to Buyer on or before January 15, 2016, then the Marketing Period shall
not commence prior to February 15, 2016, (c) in the event that Compliant Required Financial Information is not delivered by Seller
to Buyer on or before April 15, 2016, then the Marketing Period shall not commence prior to May 15, 2016, and (d) in the event
that Compliant Required Financial Information is not delivered by Seller to Buyer on or before July 15, 2016, then the Marketing
Period shall not commence prior to September 6, 2016;
(ii)
the term “Compliant” shall mean, with respect to the Required Financial Information, that
(A)
such Required Financial Information, taken as a whole, does not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make such Required Financial Information not misleading;
(B)
in the case of the Required Financial Information delivered in connection with the offering of senior notes as part of
the Debt Financing or any Alternate Debt Financing), such Required Financial Information is, and remains throughout the Marketing
Period, compliant in all material respects with all applicable requirements of Regulation S-X under the Securities Act of 1933,
as amended (excluding subsidiary financial statements or any other information of the type required by Regulation S-X Rule 3-09,
Rule 3-10 or Rule 3-16 or “segment reporting”), except (x) for the absence of audited financial statements for the
full fiscal year ended May 26, 2013, but subject to Seller’s compliance with Section 5.06(a), and (y) that the Required
Financial Information, to the extent audited, has been audited only in accordance with the generally accepted auditing standards
of the AICPA;
(C)
(1) the Seller’s auditors have not objected to the use of their audit opinions related to any audited financial statements
included in such Required Financial Information and (2) any interim quarterly financial statements included in such Required Financial
Information have been reviewed by the Seller’s independent auditors as provided in the procedures specified by the AICPA
in AU 722; and
(D)
in the case of the Required Financial Information delivered in connection with the offering of senior notes as part of
the Debt Financing, the
Seller’s auditors have confirmed that they are prepared to issue customary (as contemplated by the
AICPA in AU 634) comfort letters including negative assurance (by delivering drafts thereof) when customarily required to be delivered
during the Marketing Period.
Article
8
Tax Matters
Section 8.01.
Tax Returns; Allocation of Taxes. (a) Seller shall, at its sole cost and expense, (i) timely file or cause
to be timely filed, when due (taking into account any extension of a required filing date), all Tax Returns with respect to the
Purchased Subsidiaries that are required to be filed on or prior to the Closing Date or relate solely to a Pre-Closing Tax Period
and (ii) file or cause to be filed, when due (taking into account any extension of a required filing date), all Tax Returns that
relate to Combined Taxes (each such Tax Return, a “Seller-Filed Tax Returns”). All Seller-Filed Tax Returns
that are described in clause (ii) above, but only to the extent they could affect Taxes of the Purchased Subsidiaries
for any Post-Closing Tax Period, and all Seller-Filed Tax Returns described in clause (i) above, shall be prepared
in a manner consistent with past practice and without a change of any accounting method or other material election of the Purchased
Subsidiaries, unless otherwise required by Applicable Law. Any such Seller-Filed Tax Return due after the Closing Date that requires
the signature of any Purchased Subsidiary shall be submitted to Buyer for Buyer’s review and comment (together with schedules,
statements and, to the extent reasonably requested by Buyer, supporting documentation) at least 15 Business Days prior to the
due date (including any applicable extension) of such return. Subject to compliance with Section 8.01(c), Buyer shall
cause the appropriate Purchased Subsidiary to file all such Seller-Filed Tax Returns prepared by Seller and timely delivered to
Buyer in accordance with this Section 8.01.
(b)
Buyer shall file, at its sole cost and expense, or cause to be filed, when due (taking into account any extensions of a required
filing date), all Tax Returns with respect to the Purchased Subsidiaries that are due after the Closing Date and are not Seller-Filed
Tax Returns (each a “Buyer-Filed Tax Return”). Any Buyer-Filed Tax Return relating to a Straddle Tax Period
shall be prepared in a manner consistent with past practice and without a change of any election or accounting method of the Purchased
Subsidiaries, unless otherwise required by Applicable Law. Any Buyer-Filed Tax Return relating to a Straddle Period that is an
income Tax Return shall be submitted by Buyer to Seller for Seller’s review and comment (together with schedules, statements
and, to the extent reasonably requested by Seller, supporting documentation) at least 15 Business Days prior to the due date (including
any applicable extension) of such return; provided, however, no failure or delay in providing such Tax Returns shall
reduce the obligations of the Seller for any Taxes under this Agreement, except to the extent the Seller is actually prejudiced
by such failure or delay.
(c)
If (i) Seller, within 5 Business Days after receipt of any Buyer-Filed Tax Return from Buyer pursuant to Section
8.01(b), notifies Buyer in writing that it objects to any items in
such return or (ii) Buyer, within 5 Business Days after receipt
of any Seller-Filed Tax Return from Seller pursuant to Section 8.01(a), notifies Seller in writing that it objects
to any items in such return, the disputed item shall be resolved in a manner mutually agreeable to both parties within 5 Business
Days, and if not so resolved, then by a jointly retained Accounting Referee (which may be the same as or different from the Accounting
Referee retained pursuant to Section 2.04(c), if any) within a reasonable time, taking into account the deadline
for filing such return; provided, however, with respect to any matter that only relates to Taxes for a Pre-Closing
Tax Period and could not reasonably be expected to affect the Taxes or Tax Returns of any Purchased Subsidiary for a Post-Closing
Tax Period, the Buyer’s sole basis for objection with respect to such matter on a Seller-Filed Tax Return shall be that
such Tax Return has not been prepared in accordance with Applicable Law. Upon resolution of all such items, the relevant Tax Return
shall be adjusted to reflect such resolution and shall be binding upon the parties without further adjustment. The costs, fees
and expenses of such Accounting Referee and any interest or penalties imposed with respect to a Buyer-Filed Tax Return or a Seller-Filed
Tax Return that is filed after the due date for such return to the extent as resulting from compliance with this Section
8.01(c) shall be borne equally by Buyer and Seller. Notwithstanding any of the foregoing provisions, except to the extent otherwise
required pursuant to a “determination” within the meaning of Section 1313(a) of the Code (or any comparable provision
of state, local or foreign law), (A) Buyer shall not allow any Purchased Subsidiary to amend (1) a Seller-Filed Tax Return without
the prior written consent of the Seller, or (2) a Buyer-Filed Tax Return if such amendment would result in the payment of any
Covered Tax without the prior written consent of the Seller, and (B) Seller shall not file or amend any Seller-Filed Tax Return
if such amendment would give rise to any Tax payable by a Purchased Subsidiary or other Buyer Indemnified Party that is not a
Covered Tax without the prior written consent of the Buyer.
(d)
Buyer shall, subject to the right to be indemnified for Covered Taxes, timely pay or cause to be timely paid to the applicable
Taxing Authority all Taxes shown as due on any Buyer-Filed Tax Return filed under Section 8.01(b) in accordance with
Applicable Law and Seller shall timely pay or cause to be timely paid all Taxes shown as due on any Seller-Filed Tax Return filed
under Section 8.01(b) in accordance with Applicable Law. Seller shall pay to Buyer an amount equal to any Covered
Taxes shown as due and payable on any Buyer-Filed Tax Return, by the later of (i) 10 Business Days after Buyer, after having paid
such Taxes, submits to Seller an invoice evidencing such payment and (ii) 5 Business Days prior to the latest date on which such
Taxes are due and payable by Buyer without interest or penalties.
(e)
Seller shall include the Purchased Subsidiaries in any Tax Return for Combined Taxes, as applicable, through the close
of business on the Closing Date.
(f)
For purposes of this Agreement, in the case of a Straddle Tax Period, (i) the amount of any Taxes other than periodic Taxes
as described below, including sales, employment and income Taxes, of any Purchased Subsidiary for the Pre-Closing Tax Period shall
be determined based on an interim closing of the books as of the close of business on the Closing Date (to the extent reasonably
practicable taking into account the Purchased Subsidiary’s accounting systems) and (ii) the amount of property Taxes and
other similar Taxes imposed on a periodic
basis of any Purchased Subsidiary which relate to the Pre-Closing Tax Period shall be
deemed to be the amount of such Tax for the entire Straddle Tax Period multiplied by a fraction the numerator of which is the
number of days in the portion of the Straddle Tax Period ending on the Closing Date and the denominator of which is the number
of days in the entire Straddle Tax Period.
(g)
Notwithstanding anything to the contrary in this Agreement, all Transfer Taxes (other than Transfer Taxes associated with
the Pre-Closing Transactions or the transfer contemplated by Section 5.07) incurred in connection with the transactions
contemplated by this Agreement shall be borne half by Buyer and half by Seller. Each of Buyer and Seller (as applicable) shall
pay the other party for its allocable portion of any such Transfer Taxes properly shown as due and payable on any Tax Returns
relating to such Transfer Taxes prepared and filed by the other party within 10 Business Days after the party filing such Tax
Return, after having paid such Taxes, submits to the non-filing party an invoice evidencing such payment. All Transfer Taxes with
respect to the Pre-Closing Transactions or the transfer contemplated by Section 5.07 shall be paid by the Seller.
Section 8.02.
Cooperation on Tax Matters. (a) Subject to Section 8.02(b), Buyer and Seller agree
to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating
to the Purchased Subsidiaries (including access to books and records) as is reasonably necessary for the filing of all Tax Returns,
for determining and complying with any information reporting or withholding requirements pursuant to Applicable Laws, the making
of any election relating to Taxes, the preparation for any audit by any Taxing Authority, and the prosecution or defense of any
claim, suit or proceeding relating to any Tax. Buyer and Seller shall (i) retain all books and records with respect to Taxes pertaining
to the Purchased Subsidiaries until the expiration of any applicable statute of limitations and abide by all record retention
agreements entered into with any Taxing Authority for all periods required by such Taxing Authority, and (ii) use commercially
reasonable efforts to provide the other party with at least 30 days’ prior written notice before destroying any such books
and records, during which period the party receiving the notice can elect to take possession, at its own expense, of such books
and records. Seller and Buyer shall cooperate with each other fully, as and to the extent reasonably requested by the other party,
in the conduct of any audit or other proceeding relating to Taxes involving the Purchased Subsidiaries.
(b)
Notwithstanding anything to the contrary herein, except to the extent solely relating to the Purchased Subsidiaries, Seller
and its Affiliates shall not be required at any time to provide to Buyer any right to access or to review any Tax Return or Tax
work papers of Seller, any Seller Group, or any Affiliate of Seller (such Tax Returns or Tax work papers, the “Seller
Tax Records”).
Section 8.03.
Tax Refunds and Tax Benefits. (a) From and after the Closing, Buyer shall promptly pay to Seller the amount of any
refunds (whether in the form of cash or a direct credit against Taxes other than Covered Taxes) received by Buyer, any Affiliate
of Buyer or the Purchased Subsidiaries in respect of Covered Taxes (net of any Taxes imposed thereon
(including any income or
withholding Taxes that would be imposed on the repatriation of the refund to the Buyer) and any reasonable third-party out-of-pocket
expenses incurred by the Purchased Subsidiaries in obtaining such refund or credit), except to the extent that such refund or
credit (i) was taken into account in the determination of Final Closing Working Capital; (ii) was produced by the carryback of
any Tax Asset generated in a Post-Closing Tax Period; (iii) resulted from the payments of such Taxes made on or after Closing
Date to the extent the Seller (x) has not indemnified the Buyer or the applicable Purchased Subsidiary for such Taxes, or (y)
has otherwise borne the burden for such Taxes through their inclusion in Final Closing Working Capital; or (iv) gives rise to
a payment obligation by Buyer or any Purchased Subsidiary to any Person under Applicable Law or pursuant to a provision of a contract
or other agreement entered (or assumed) by any Purchased Subsidiary on or prior to the Closing Date. Buyer, at the sole cost and
expense of Seller, shall take any actions reasonably requested by Seller to seek any refunds.
(b)
Within 30 days of filing a Tax Return of a Buyer (or any of its Affiliates) (other than an estimated Tax Return) reflecting
a Section 8.03(b) Tax Benefit, Buyer shall pay to Seller the amount of the Section 8.03(b) Tax Benefit with respect to such Tax
Return (net of any costs or expenses owed by Seller that have not been previously paid); provided that if the Section 8.03(b)
Tax Benefit is in the form of an increased Tax refund, the amount owed with respect to such Section 8.03(b) Tax Benefit shall
not be paid by Buyer to Seller until 30 days after receiving the refund from the Taxing Authority. A “Section 8.03(b)
Tax Benefit” means (without duplication) any actual reduction in the aggregate United States federal or state income
Taxes paid by Buyer and its Affiliates for the taxable periods ending on or prior to December 31, 2021 (determined on a with and
without basis) to the extent such reduction results from the (x) use in any Post-Closing Tax Period of a Tax Asset or (y) a deduction
in any Post-Closing Tax Period with respect to Seller Transaction Expenses. If, subsequent to the payment by Buyer to Seller of
any Section 8.03(b) Tax Benefit, there shall be (i) a final determination by any Taxing Authority which results in a disallowance
or a reduction of the Tax Asset or the deduction for any Seller Transaction Expenses or (ii) any other reduction in the amount
of the Section 8.03(b) Tax Benefit realized by Buyer or any Affiliate of Buyer (included the Purchased Subsidiaries), Seller shall
repay to Buyer the amount of any resulting reduction (such reduction being computed consistently with the initial computation
of the Section 8.03(b) Tax Benefit) in the Section 8.03(b) Tax Benefit (and, to the extent the reduction is attributable to an
adjustment by any Taxing Authority, any penalties or interest relating to such adjustment) within 30 days of the reduction being
payable to the applicable Taxing Authority (or the filing of the Tax Return reflecting such reduced benefit). Buyer shall, and
shall cause the Purchased Subsidiaries to, use commercially reasonable efforts to claim any Tax benefits that will give rise to
a Section 8.03(b) Tax Benefit; provided that, Buyer shall not be required to take any action that (i) would result in Buyer
or any of its Affiliates incurring a Tax that is not a Covered Tax; (ii) would result in Buyer or any of its Affiliates incurring
any out-of-pocket expense that Seller is not paying (or reimbursing Buyer); (iii) would extend the applicable statute of limitations
with respect to the assessment or collection of any Tax of the Buyer or any of its Affiliates that is not a Covered Tax; (iv)
would cause Buyer or any of its Affiliates to take any position on any Tax Return that is not “more likely than not”
to be sustained if challenged by a Taxing Authority, provided that in the event that Buyer and Seller disagree as to whether a
position is “more likely than not” to
succeed,
Seller’s position shall prevail only if supported by an opinion (in a form reasonably acceptable to Buyer that permits the
Buyer and any relevant Affiliate to rely on the conclusions therein) of a nationally recognized law or accounting firm chosen
and paid for by Seller (and reasonably acceptable to Buyer); (v) would require Buyer or any of its Affiliates to change (or preclude
a change) their corporate structure; or (vi) would cause Buyer or any of its Affiliates to breach the terms of any contractual
obligation. Seller shall pay all costs and expenses of Buyer and its Affiliates in connection with claiming (or computing) any
Section 8.03(b) Tax Benefit.
Section 8.04.
Covenants. (a) From and after the Closing, Buyer covenants that it shall not cause or permit any Purchased
Subsidiary or any Affiliate of Buyer (i) to take any action on the Closing Date, but after the Closing, other than in the ordinary
course of business or as contemplated by this Agreement, including the distribution of any dividend or the effectuation of any
redemption that could give rise to any Tax liability or reduce any Tax Asset of Seller or a Seller Group, (ii) to make any election
under Section 338 of the Code or any comparable provision under Applicable Law with respect to any Purchased Subsidiary in
connection with the purchases under this Agreement, (iii) to change any Tax election, make any Tax election inconsistent
with past practice, amend any Tax Return, take any Tax position on any Tax Return, initiate any voluntary disclosure with respect
to Taxes or agree to waive or extend any statute of limitations for the assessment or collection of any Tax, or (iv) to take
any action or fail to take any action that could reasonably be expected to cause the transaction occurring pursuant to Section
2.01 of this Agreement to fail to qualify as a “qualified stock purchase” (within the meaning of Section 338(d)(3)
of the Code), in each case without the prior written consent of the Seller, and in the case of the foregoing clauses (i), (ii)
and (iii), with respect to any matter that relates to a Pre-Closing Tax Period.
(b)
Except as expressly required by this Agreement or with respect to any Pre-Closing Transaction, Seller covenants that, (i)
from the date hereof until the Closing Date, it shall not (and shall not allow any Purchased Subsidiary to) (A) change any Tax
election of, or relating to, any Purchased Subsidiary or change any other material practice or procedure of any of the Purchased
Subsidiaries relating to Taxes, (B) make any material Tax election with respect to a Purchased Subsidiary inconsistent with past
practice, (C) change any method of accounting or accounting period used by any Purchased Subsidiary for Tax purposes, (D) amend
any material Tax Return of any Purchased Subsidiary, (E) extend any statute of limitations for the assessment or collection of
any material Tax of any Purchased Subsidiary, (F) enter into any material agreement with any Taxing Authority (including a “closing
agreement” under Code Section 7121) with respect to any Tax or Tax Returns of any Purchased Subsidiary, or (G) surrender
a right of any Purchased Subsidiary to a material Tax refund; (ii) from the date hereof until the Closing Date, it shall not (and
shall not allow any Purchased Subsidiary to) take any action outside of the ordinary course of business not contemplated by this
Agreement that could materially increase the Tax liability of any Purchased Subsidiary or other Buyer Indemnified Party for a
Post-Closing Tax Period (for the avoidance of doubt, such actions shall not include the utilization by Seller of any Tax Asset
available to be utilized in the Pre-Closing Tax Period); and (iii) it shall not (and shall not allow any Purchased Subsidiary
to) make any election, or take any action that results in a deemed election, under Section 336 of the Code or any comparable
provision
under Applicable Law with respect to any Purchased Subsidiary in connection with this Agreement. In the event that, by application
of Treasury Regulations Section 1.1502-36(d), the inside basis of the Purchased Company’s assets (the “Inside Basis”)
would be required to be reduced by an amount in excess of $501,288,582 (decreased by the excess, if any, of the Closing Purchase
Price calculated pursuant to Section 2.04 over $2,700,000,000 and increased by the excess, if any, of $2,700,000,000
over the Closing Purchase Price calculated pursuant to Section 2.04) (the “Basis Reduction Cap”),
Seller shall timely make the election described in Treasury Regulations Section 1.1502-36(d)(6)(i) such that the amount of the
reduction in Inside Basis resulting from the application of Treasury Regulations 1.1502-36(d) does not exceed the Basis Reduction
Cap. If the Seller is required to make the election pursuant to the prior sentence, the Seller shall provide a draft of the election
form to the Buyer prior to the filing for Buyer’s reasonable review and comment.
(c)
Seller and Buyer agree that the transfer of the assets to the Purchased Subsidiaries pursuant to the Pre-Closing Transactions
shall be a fully taxable transaction and governed by Section 1001 of the Code. Within 180 days after the Closing Date, Buyer shall
deliver to Seller a schedule setting forth the value of the assets transferred to the Purchased Subsidiaries pursuant to the Pre-Closing
Transactions and allocating such value among such assets (the “Allocation Schedule”). In the event Seller does
not provide Buyer with comments within 30 days from receipt of the Allocation Schedule, such allocation shall be deemed final
by the parties hereto. In the event that Seller provides comments within such 30 day period, and the parties cannot agree on a
final allocation within 60 days after Buyer has delivered the Allocation Schedule to Seller, then the parties hereto shall each
prepare their own allocation. Buyer and Seller shall report, act, and file all Tax Returns and information reports consistently
with the Allocation Schedule, to the extent agreed to between the parties, and shall not take any position during the course of
any audit or other proceeding relating to Taxes that is inconsistent with the Allocation Schedule, to the extent agreed to between
the parties, unless required to do so by applicable law or a final determination of an applicable Taxing Authority.
(d)
Buyer shall enter into new gain recognition agreements with respect to those existing gain recognition agreements set forth
on Section 8.04(d) of the Disclosure Schedules pursuant to Section 1.367(a)-8 of the Treasury Regulations so as to
render the exception set forth in Section 1.367(a)-8(k)(10) available with respect to any “triggering event” arising
by reason of the transactions contemplated by this Agreement.
Section 8.05.
Tax Sharing. Any and all existing Tax Sharing Agreements between any Purchased Subsidiary and any member
of a Seller Group shall be terminated prior to the Closing Date. After such date none of the Purchased Subsidiaries, Seller or
any Affiliate of Seller shall have any further rights or liabilities thereunder.
Section 8.06.
Tax Indemnification. (a) From and after the Closing, Seller hereby indemnifies each Purchased Subsidiary and each
other Buyer Indemnified Party against and agrees to hold each of them harmless from (i) any Covered Tax, (ii) any liabilities,
costs, expenses (including reasonable expenses of investigation and attorneys’ fees and expenses),
arising out of or incident
to the imposition, assessment or assertion of any Covered Tax, including those incurred in the contest in good faith in appropriate
proceedings relating to the imposition, assessment or assertion of any such Covered Tax, and (iii) for all liability, costs, and
expenses incurred in connection with the filing of a Seller-Filed Tax Return (any item set forth in clause (i), (ii),
or (iii) of this Section 8.06(a) shall be a “Buyer Tax Loss”). The amount of Buyer
Tax Losses shall be computed applying the provisions of Section 11.06(a) mutatis mutandis.
(b)
From and after the Closing, Buyer hereby indemnifies Seller and its Affiliates against and agrees to hold each of them
harmless from any liabilities, costs, expenses (including reasonable expenses of investigation and attorneys’ fees and expenses),
arising out of or incident to the imposition, assessment or assertion of any Tax, including those incurred in the contest in good
faith in appropriate proceedings relating to the imposition, assessment or assertion of any such Tax, (i) of any Purchased Subsidiary
other than Covered Taxes or (ii) resulting from any breach of the representations and warranties contained in Section
4.10 (any item set forth in clause (i) or (ii) of this Section 8.06(b), a “Seller Tax Loss”). The
amount of Seller Tax Losses shall be computed applying the provisions of Section 11.06(a) mutatis mutandis.
(c)
If the Seller is (or would be, assuming an adverse determination from the relevant Taxing Authority) obligated to pay a
Tax under this Section 8.06 that is being contested or otherwise disputed with the applicable Taxing Authority and
there is a requirement (or there is a decision by the party controlling the contest) to pay the Tax (or any portion thereof) (including
as a deposit), the Seller shall timely and properly pay such amount to the applicable Taxing Authority on behalf of itself or
the applicable taxpayer and to the extent such amounts are subsequently recovered by a Purchased Subsidiary or other Buyer Indemnified
Party from the Taxing Authority, the Buyer shall pay such amount to the Seller.
Section 8.07.
Tax Contests. (a) From and after the Closing, if any Taxing Authority issues to Buyer, any Purchased Subsidiary
or any of their Affiliates (i) a written notice of its intent to investigate, audit or conduct any proceeding that could reasonably
be expected to give rise to a claim for any Covered Taxes or (ii) a written notice of deficiency for Covered Taxes, Buyer shall
notify Seller of its receipt of such communication from the Taxing Authority within 10 Business Days of receipt. No failure or
delay of Buyer in the performance of the foregoing shall reduce or otherwise affect the obligations or liabilities of Seller pursuant
to this Agreement, except to the extent Seller is actually prejudiced by such failure or delay.
(b)
Seller, at its sole cost and expense, shall control any investigation, audit or other proceeding solely for a Pre-Closing
Tax Period (and not with respect to any Straddle Period or portion thereof), including the Pending Tax Matters; provided,
however that (i) the Seller shall control such investigation, audit or other proceeding in good faith; (ii) the Seller
shall keep the Buyer reasonably informed regarding the status of such investigation, audit or other proceeding; (iii) the Buyer
shall have the right to participate in such investigation, audit or other proceeding; and (iv) the Seller shall not, without the
Buyer’s prior written permission (which shall not be unreasonably withheld, delayed, or conditioned), settle, resolve, or
abandon such investigation,
audit or other proceeding (or any portion thereof) if such settlement, resolution, or abandonment
could result in any Purchased Subsidiary or other Buyer Indemnified Party incurring a Tax that will not be fully paid by the Seller
pursuant to this Agreement.
(c)
Buyer, at its sole cost and expense, shall control all other investigations, audits or other proceedings relating to Taxes
or Tax Returns of the Purchased Subsidiaries relating to Pre-Closing Tax Periods (including all Straddle Periods); provided,
however, that (i) the Buyer shall control such investigation, audit or other proceeding in good faith; (ii) the Buyer shall
keep the Seller reasonably informed regarding the status of such investigation, audit or other proceeding; (iii) the Seller shall
have the right to participate in such investigation, audit or other proceeding; and (iv) the Buyer shall not, without the Seller’s
prior written permission (which shall not be unreasonably withheld, delayed, or conditioned), settle, resolve, or abandon (or
allow any Purchased Subsidiary to settle, resolve, or abandon) such investigation, audit or other proceeding (or any portion thereof)
if such settlement, resolution, or abandonment could result in a Covered Tax.
(d)
Notwithstanding any provision of this Section 8.07 to the contrary, the Seller shall, at its sole cost and
expense, exclusively control the conduct of any investigation, audit or other proceeding related to Taxes or Tax Returns of a
Seller Group; provided, however, that to the extent such investigation, audit or other proceeding could reasonably
be expected to affect the Taxes or Tax Returns of any Purchased Subsidiary for a Post-Closing Tax Period, Seller shall keep Buyer
reasonably informed regarding the status of such investigation, audit or other proceeding.
Section 8.08.
Survival. Notwithstanding anything in this Agreement to the contrary, the covenants and agreements to pay or indemnify
for Taxes contained in this Article 8 shall survive for the full period of all statutes of limitations for the collection
of the underlying Tax (giving effect to any waiver, tolling, mitigation or extension thereof) plus 60 days and all other covenants
and agreements contained in this Article 8 shall survive until performed.
Article
9
Employee Matters
Section 9.01.
Treatment of Business Employees. The Purchased Subsidiary Employees, and any Business Employees whose employment
transfers to Buyer or its Affiliates on or after the Closing Date in accordance with the next sentence, are referred to collectively
herein as “Transferred Employees”. Prior to the Closing Date, Seller shall (or shall cause one of its Affiliates
to) transfer the employment of each Business Employee who is Employed by Seller or a Retained Subsidiary to a Purchased Subsidiary;
provided that, if Seller reasonably determines that the employment of any such Business Employee cannot be transferred
to a Purchased Subsidiary prior to the Closing Date because of restrictions imposed by Applicable Law (each such employee, a “Seller
Business Employee”), (a) Buyer shall (or shall cause one of its Affiliates to) make an offer of employment to such Seller
Business Employee on terms consistent with those applicable to Transferred Employees generally under this Article
9, (b)
Seller and Buyer shall cooperate to cause such Seller Business Employee to become employed by Buyer or one of its Affiliates
on, or as soon as reasonably practicable following, the Closing Date and (c) from and after such Seller Business Employee’s
commencement of employment with Buyer and its Affiliates, such Seller Business Employee shall be considered a Transferred Employee
for all purposes under this Agreement. Seller shall be solely responsible for all severance and any other payments or benefits
with respect to any Purchased Subsidiary Employees or Seller Business Employees who terminate employment prior to the Closing
and/or who reject an offer of employment with the Buyer or the Purchased Subsidiaries.
Section 9.02.
Seller Benefit Plans. Except as otherwise provided in Section 9.05, Seller shall be responsible for
all liabilities related to any Benefit Plan that is sponsored or maintained by Seller or any of its ERISA Affiliates (other than
a Purchased Subsidiary).
Section 9.03.
Equity and Equity-Based Compensation. In connection with the transactions contemplated hereby and effective as of
the Closing, each outstanding option to purchase shares of Seller common stock and restricted stock unit with respect to Seller
common stock (together, “Seller Equity Awards”), in each case, held by a Transferred Employee as of the Closing
Date shall vest pro rata in an amount equal to (i) the total number of Seller shares underlying the Seller Equity Award multiplied
by (ii) a fraction, the numerator of which is the number of days elapsed from the grant date of the Seller Equity Award through
the Closing Date and the denominator of which is equal to the total number of days between the grant date and the end of the applicable
vesting period of the Seller Equity Award, less (ii) the number of shares with respect to such Seller Equity Award that had already
vested prior to the Closing Date.
Section 9.04.
US Defined Contribution Plans. With respect to each Transferred Employee who, as of immediately prior to
the Applicable Transfer Date, participates in a defined contribution plan that is intended to qualify under Section 401(a) of
the Code and that is sponsored by Seller or a Retained Subsidiary (a “Seller DC Plan”), Buyer shall (or shall
cause one of its Affiliates to), as soon as administratively practicable following the Applicable Transfer Date, (a) cover
such Transferred Employee under a defined contribution plan that is intended to qualify under Section 401(a) of the Code and that
is sponsored by Buyer or one of its Affiliates (a “Buyer DC Plan”) and (b) cause a Buyer DC Plan to accept
a direct trustee-to-trustee transfer of the full value of the accounts (including participant loans) of such Transferred Employee
from the Seller DC Plans and, as of such date Seller has caused the Seller DC Plan to transfer to the trust of Buyer DC Plan cash,
assets or a combination thereof in an amount equal to the Seller DC Plan account balances of the Transferred Employees (including
any promissory notes evidencing outstanding loan balances under the Seller DC Plan) as of the valuation date immediately preceding
such transfer.
Section 9.05.
Certain US Plans. Prior to the Closing, Seller shall take all actions necessary to properly transfer the sponsorship
of each of the Benefit Plans set forth on Section 9.05 of the Disclosure Schedule (to the extent such Benefit
Plans, or portions thereof, relate to Business Employees and former employees of the Business) to a Purchased Subsidiary in accordance
with Applicable Law and the terms of such plan provided that Seller shall not
transfer Liabilities and corresponding assets
related to employees who are not Business Employees or former employees of the Business. To the extent a Benefit Plan set forth
on Section 9.05 of the Disclosure Schedule or a Purchased Subsidiary Benefit Plan benefits employees who are not Business Employees
or former employees of the Business, Seller shall retain assets and Liabilities of such plans that relate to employees who are
not Business Employees or former employees of the Business. Notwithstanding the foregoing, if the sponsorship of any such Benefit
Plan is not transferred to a Purchased Subsidiary prior to the Closing, then effective as of the Closing, Buyer shall (or shall
cause one of its Affiliates to) assume sponsorship of, and all Liabilities and any assets relating to, such Benefit Plan to the
extent such assets and Liabilities relate to Business Employees and former employees of the Business and Seller shall not transfer
Liabilities and corresponding assets related to employees who are not Business Employees or former employees of the Business.
Section 9.06.
Labor and Individual Agreements. With respect to each collective bargaining or other labor agreement and each employment
or compensation agreement provided to Buyer with an individual to which a Purchased Subsidiary is a party or with respect to a
collective bargaining or other labor agreement that solely applies to Business Employees as of immediately prior to the Closing
Date, Buyer shall, and shall cause the applicable Purchased Subsidiary to, assume and comply with the terms of such agreement,
including using reasonable best efforts to cause the applicable Purchased Subsidiary to execute amended collective bargaining
agreements, new participation agreements or other plan documentation associated with Multiemployer Plans (provided that any such
participation agreement or other documentation, including any amended collective bargaining agreement, does not give rise to Liabilities
to the Purchased Subsidiaries in addition to those currently in effect as of the date hereof and is not on terms that are less
favorable than those in effect as of the date hereof), subject to any changes to such agreement as may be agreed upon between
Buyer or the applicable Purchased Subsidiary and the union, other labor organization or the individual that is a party thereto.
Section 9.07.
Accrued Vacation and Sick Leave. Buyer shall (or shall cause its Affiliates to) recognize and assume the Liability
with respect to accrued but unused vacation time and sick leave for all Transferred Employees; provided that in any jurisdiction
where payment of the value of accrued but unused vacation time to Transferred Employees is required by Applicable Law as of the
Applicable Closing Date (a) Seller will pay, or cause to be paid, all accrued but unused vacation time to such Transferred Employees
as soon as reasonably practicable after the Applicable Transfer Date, and (b) Buyer shall promptly, but in no event more than
30 days after being notified by Seller, reimburse Seller in respect of any such payment.
Section 9.08.
Service Credit. Buyer shall (or shall cause its Affiliates to) grant each Transferred Employee credit for years
of prior service with Seller, a Retained Subsidiary, a Purchased Subsidiary or any of their respective Affiliates or predecessors
of any such entity for purposes of vesting and eligibility under each employee benefit plan (excluding any defined benefit or
retiree health and welfare plan unless otherwise required by Applicable Law, a
collective bargaining agreement or the terms of
such plan) in which such Transferred Employee is eligible to participate that is sponsored or maintained by Buyer or any of its
Affiliates; provided, however, that such credit shall not result in a duplication of benefits.
Section 9.09.
Welfare Plans. As of the Applicable Transfer Date, each Transferred Employee shall cease participation in the health
and welfare benefit plans of Seller and the Retained Subsidiaries (each, a “Seller Welfare Plan”) and commence
or continue participation in the health and welfare benefit plans maintained by Buyer and its Affiliates (which, for the avoidance
of doubt, after the Closing shall include the Purchased Subsidiary Benefit Plans) in which each such Transferred Employee is eligible
to participate (each, a “Buyer Welfare Plan”). Seller and the Retained Subsidiaries shall be responsible for
providing benefits in respect of claims incurred under a Seller Welfare Plan for Transferred Employees and their beneficiaries
and dependents prior to the Applicable Transfer Date. Benefits in respect of claims incurred under a Buyer Welfare Plan for Transferred
Employees on or after the Applicable Transfer Date shall be provided by Buyer and its Affiliates. For purposes of this Section
9.09, the following claims shall be deemed to be incurred as follows (irrespective of whether such claim is made prior to, on,
or after the Closing): (a) life, accidental death and dismemberment and business travel accident insurance benefits, upon the
death or accident giving rise to such benefits and (b) health or medical, dental, vision care and/or prescription drug benefits,
upon provision of the applicable services, materials or supplies.
Section 9.10.
Pre-Existing Conditions and Co-Payments. Buyer shall (or shall cause its Affiliates to) undertake reasonable commercial
efforts to:
(a)
waive all limitations as to pre-existing conditions, exclusions, actively-at-work requirements and waiting periods with
respect to participation and coverage requirements applicable to the Transferred Employees (and their eligible dependents) under
any Buyer Welfare Plans in which the Transferred Employees are eligible to participate on or after the Applicable Transfer Date
to the extent that such limitations were waived or met under the applicable Seller Welfare Plan or health and welfare benefit
plans of the Purchased Subsidiaries; and
(b)
provide each Transferred Employee with credit for the dollar amount of all co-payments, deductibles and similar expenses
incurred by such Transferred Employee prior to the Applicable Transfer Date in satisfying any applicable deductible or out-of-pocket
requirements under any Buyer Welfare Plans in which such Transferred Employees are eligible to participate on or after the Applicable
Transfer Date.
Section 9.11.
Flexible Spending Accounts. As of the Applicable Transfer Date, Seller shall (or shall cause the) transfer from
the medical and dependent care account plans of Seller and the Retained Subsidiaries (each, a “Seller FSA Plan”)
to a Section 125 of the Code flexible spending account plan established or designated by Buyer (“Buyer FSA Plan”)
the account balances of the Transferred Employees, and Buyer shall be responsible for the obligations of the Seller FSA Plan to
provide benefits to the Transferred Employees with respect to such
transferred account balances on or after the Applicable Transfer
Date. Each Transferred Employee shall be permitted to continue to have payroll deductions made as most recently elected by such
Transferred Employee under the Seller FSA Plan. If the Applicable Transfer Date is other than December 31 of a calendar year,
then, as of the Applicable Transfer Date, as applicable, (i) Seller shall, within 30 days after the Applicable Transfer Date,
pay to Buyer an amount equal to the excess, if any, of the aggregate amount withheld from Transferred Employees’ compensation
under the Seller’s FSA for the plan year in which the Applicable Transfer Date occurs over the aggregate amount of reimbursements
paid to Transferred Employees under the Seller’s FSA for such plan year or (ii) Buyer shall, within 30 days after the Applicable
Transfer Date, pay to Seller an amount equal to the excess, if any, of the aggregate amount of reimbursements paid to Transferred
Employees under the Seller’s FSA for the plan year in which the Closing Date occurs over the aggregate amount withheld from
Transferred Employees’ compensation under the Seller’s FSA for such plan year.
Section 9.12.
WARN Act and Other Notices. Seller shall be liable for the provision of notice or payment in lieu of notice and
any applicable penalties under the Worker Adjustment and Retraining Notification Act (“WARN”), any similar
Applicable Law, or any similar provision in a collective bargaining agreement related to terminations for which the required initial
provision of notice occurs on or before the Closing Date. Seller and Seller’s Affiliates shall take all actions necessary
as it relates to notice and consultation requirements that arise on or before the Closing Date. Buyer shall be liable for the
provision of notice or payment in lieu of notice and any applicable penalties under WARN, any similar Applicable Law, or any similar
provision in a collective bargaining agreement related to terminations for which the required initial provision of notice occurs
after the Closing Date. Buyer and Buyer’s Affiliates shall take all actions necessary as it relates to notice and consultation
requirements that arise after the Closing Date. Prior to the Closing, Seller shall provide Buyer a schedule which shall, as of
the Closing Date, set forth a list of each Purchased Subsidiary Employee whose employment has been terminated involuntarily within
the 90-day period immediately preceding the Closing Date, together with such former employee’s work location.
Section 9.13.
Workers Compensation. Buyer shall be responsible for providing benefits in respect of all claims for workers compensation
benefits and shall assume any related workers compensation liabilities, in each case with respect to Transferred Employees and
former employees of the Purchased Subsidiaries; provided, however, that if Applicable Law does not permit Buyer
or its Affiliates to provide such benefits with respect to injuries or illnesses that arose prior to the Applicable Transfer Date,
Seller shall be responsible for providing such benefits and Buyer shall promptly, but in no event more than 30 days after being
notified by Seller, reimburse Seller in respect of any such benefits provided and indemnify Seller and its Affiliates for all
liability, costs, and expenses incurred in connection with the administration of such benefits. Without limiting anything in Section
11.02(c), the Parties shall use commercially reasonable efforts, and shall cooperate, to administer claims for workers compensation
benefits in a manner that, consistent with Applicable Law, is intended to minimize the cost of such benefits.
Section 9.14.
Treatment of Non-U.S. Transferred Employees. Prior to the date hereof, Buyer shall have, or shall have caused
its applicable Affiliate to, enter into an agreement with Pasta Lensi, S.r.l. to comply with all data privacy laws in connection
with the transactions contemplated by this Agreement. In addition to the other applicable terms and conditions of this Article
9, Buyer and its Affiliates shall comply in all material respects with any additional obligations or standards arising under Applicable
Laws governing the terms and conditions of the employment or severance of employment of any Transferred Employee located outside
of the U.S., subject to Seller’s obligations under Section 9.01. Buyer and its Affiliates shall comply with
all data privacy laws applicable to Transferred Employees and any information provided by Seller to Buyer with respect to Business
Employees, and Buyer hereby indemnifies Seller and its Affiliates against and agrees to hold each of them harmless from any and
all Damages incurred or suffered by Seller or any of its Affiliates with respect to any noncompliance by Buyer or its Affiliates.
Seller and its Affiliates shall comply with all data privacy laws applicable to Transferred Employees and Seller hereby indemnifies
Buyer and its Affiliates against and agrees to hold each of them harmless from any and all Damages incurred or suffered by Buyer
or any of its Affiliates with respect to any noncompliance by Seller or its Affiliates.
Section 9.15.
Transaction Payments. Seller shall be responsible for all retention payments and all change of control and sale
bonus amounts, in each case, granted prior to Closing as authorized by Seller and payable by the Seller, the Retained Subsidiaries,
or the Purchased Subsidiaries to any Transferred Employee, employees, or consultants that are triggered or made payable as a result
of the transactions contemplated in this Agreement, whether payments are to be made prior to, on, or after the Closing, and all
employer Taxes related thereto (any such amount, a “Transaction Bonus”). Seller and its Affiliates
agree to honor the terms and conditions of any retention agreements with the Business Employees put in place by Seller or its
Affiliates prior to the Closing.
Section 9.16.
Ripon Closure. Seller shall be responsible for any severance or other termination benefits that are triggered or
made payable as a result of the plant closing in Ripon Wisconsin in accordance with the Plant Closing Agreement between ConAgra
Foods located in Ripon, Wisconsin and I.B.T. Teamsters Local 200, dated as of July 15, 2015 and the Chicago & Midwest Regional
Joint Board, Local 91, dated as of July 7, 2015 (the “Ripon Closure”), whether payments are to be made prior
to, on, or after the Closing, all employer Taxes related thereto, and any retention costs, relocation costs, asset removal costs,
and asset retirement obligation costs as required by Statement No. 143 of the Financial Accounting Standards Board, in each case,
solely related to the Ripon Closure.
Section 9.17.
Withdrawal Liability. (a) Prior to the Closing Date, pursuant to Section 101(l) of ERISA Seller shall or shall cause
the applicable Purchased Subsidiary to request the estimated amount of withdrawal liability, if the Purchased Subsidiary withdrew
on the last day of the plan year preceding the date of the request, under Part I of Subtitle E of Title IV of ERISA for each Multiemployer
Plan to which any Purchased Subsidiary contributes, and shall furnish such estimate to Buyer promptly following receipt thereof.
(b)
Seller hereby indemnifies Buyer, its Affiliates, including the Purchased Subsidiaries, and agrees to hold each of them
harmless from any and all liabilities, including attorney’s and consulting fees, claims and causes of actions, that relate
to the “withdrawal liability” (pursuant to Part I of Subtitle E of Title IV of ERISA) of any multiemployer plan (as
defined in Section 3(37) or 4001(a)(3) of ERISA) to which Seller, a Purchased Subsidiary, or any of their respective ERISA Affiliates
contributes to, or has contributed to; provided that with respect to a Multiemployer Plan, Seller’s indemnity obligations
under this Section 9.17(b) apply only to the extent that such liability arises in connection with events occurring
prior to the Closing or in connection with the transactions contemplated by this Agreement. Section 9.17(b) shall
apply with respect to any withdrawal liability that arises in connection with the transfer of the collective bargaining agreements
between ConAgra Foods, Inc. and Bakery, Confectionery, Tobacco Workers & Grain Millers International Local 42, effective on
December 8, 2013, and between ConAgra Foods Inc. and Local No. 1 of the Bakery, Confectionery, Tobacco Workers & Grain Millers
International Union, effective May 19, 2013.
(c)
For further avoidance of doubt, Buyer will be solely responsible for any withdrawal liability assessed by the Multiemployer
Plans based on any action or decision taken or made by Buyer after Closing.
Section 9.18.
Transition Matters. (a) To the extent permitted by Applicable Laws and not in the possession of the
Purchased Subsidiaries, Seller shall use commercially reasonable efforts to transfer the originals of all personnel records for
Transferred Employees to Buyer or Buyer’s Affiliates, it being understood and agreed that Seller may retain copies of such
records.
(b)
To the extent Seller reasonably determines is permitted by Applicable Law and could not otherwise result in material Liability
to, or otherwise negatively impact, Seller or any of its Affiliates, following the Closing Date, Seller shall use commercially
reasonable efforts to provide in a timely manner to Buyer such information and documents relating to the Benefit Plans, employee
policies, payroll data, service crediting data, performance data and other employment-related information as may reasonably be
requested by Buyer to facilitate the transition of Transferred Employees to new or existing employee benefit plans or programs
of Buyer or Buyer’s Affiliates.
Section 9.19.
Assignment of Agreements. Effective as of the Closing, Seller shall have assigned to Buyer or a Purchased
Subsidiary all of rights and interests of Seller in any confidentiality, non-solicitation of clients, non-solicitation of employees
or consultants, noninterference, non-competition or non-disparagement agreement between Seller, on the one hand, and each Transferred
Employee, Business Employee, former employee, contractor and former consultant, on the other hand, to the extent such rights and
interests protect the interest of the Business and to the extent such assignment is permitted under Applicable Law and under the
terms of such agreement.
Section 9.20.
Cooperation. Each of Buyer and Seller recognize it to be in the best interests of the parties hereto and their respective
employees that the transactions in this Article 9
be
effected in an orderly manner and agree to devote their respective best efforts and to cooperate fully in complying with the provisions
of this Article 9. Without limiting the generality of the foregoing, each party agrees to execute, deliver and
file all documents and to take all such actions as are deemed necessary or desirable in order to carry out and perform the purpose
of this Article 9 and to facilitate the transactions referred to in this Article 9.
Section 9.21.
No Third Party Beneficiaries. Without limiting the generality of the last sentence of Section
13.08, nothing in this Article 9, express or implied, (a) is intended to or shall confer upon any Person
other than the parties hereto, including any Business Employee, any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement, (b) shall establish, or constitute an amendment, termination or modification of, or an undertaking
to amend, establish, terminate or modify, any benefit plan, program, agreement or arrangement or (c) shall create any obligation
on the part of Seller, Buyer or any of their respective Affiliates to employ any Business Employee for any period following the
Closing Date.
Article
10
Conditions to Closing
Section 10.01.
Conditions to Obligations of Buyer and Seller. The obligations of Buyer and Seller to consummate the Closing
are subject to the satisfaction or, where legally permitted, waiver by each party, of each of the following conditions:
(a)
any applicable waiting period under the HSR Act relating to the transactions contemplated hereby shall have expired or
been terminated;
(b)
the Competition Act Approval shall have been obtained; and
(c)
no provision of any Applicable Law shall prohibit the consummation of the Closing.
Section 10.02.
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is also subject to the
satisfaction or, in the sole discretion of Buyer, waiver of, each of the following further conditions:
(a)
Seller shall have performed in all material respects all of its obligations hereunder required to be performed by it on
or prior to the Closing;
(b)
each of the representations and warranties of Seller contained in this Agreement shall be true and correct as of the Closing
as though made at and as of such time (except that those representations and warranties which address matters only as of a particular
date shall be true and correct as of such particular date) except where the failure of such representations and warranties to
be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Material
Adverse Effect (disregarding any qualification in the text of the relevant representation or warranty as to materiality or Material
Adverse Effect);
provided, further, that the Seller Fundamental Representations (with regard to any materiality
or Material Adverse Effect qualification contained therein) shall be true and correct in all respects without regard to the foregoing
Material Adverse Effect qualification;
(c)
Buyer shall have received a certificate signed by an executive officer of Seller confirming the matters applicable to Seller
in Section 10.02(a) and Section 10.02(b);
(d)
on or prior to the Closing Date, Seller shall have delivered to Buyer all agreements, instruments and documents required
to be delivered by Seller pursuant to Section 2.02(b)(ii);
(e)
Seller shall have performed all of its obligations under Section 5.12 on or prior to the Closing Date; and
(f)
since the date of this Agreement there has not occurred a Material Adverse Effect.
Section 10.03.
Conditions to Obligation of Seller. The obligation of Seller to consummate the Closing is also subject to
the satisfaction or, in the sole discretion of Seller, waiver of each of the following conditions:
(a)
Buyer shall have performed in all material respects all of its obligations hereunder required to be performed by it at
or prior to the Closing;
(b)
each of the representations and warranties of Buyer contained in this Agreement shall be true and correct as of the Closing
as though made at and as of such time (except that those representations and warranties which address matters only as of a particular
date shall be true and correct as of such particular date) except where the failure of such representations and warranties to
be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a material
adverse effect on Buyer’s ability to consummate the transactions contemplated by this Agreement (disregarding any qualification
in the text of the relevant representation or warranty as to materiality or material adverse effect); provided, further,
that the Buyer Fundamental Representations (with regard to any materiality or material adverse effect qualification contained
therein) shall be true and correct in all respects without regard to the foregoing material adverse effect qualification;
(c)
Seller shall have received a certificate signed by an executive officer of Buyer confirming the matters applicable to Seller
in Section 10.03(a) and Section 10.03(b); and
(d)
on or prior to the Closing Date, Buyer shall have delivered to Seller all agreements, instruments and documents required
to be delivered by Buyer pursuant to Section 2.02(b)(i).
Section 10.04.
Frustration of Closing Conditions. Neither Buyer nor Seller may rely on the failure of any condition set forth in
this Article 10 to be satisfied if such failure was caused by such party’s breach of, or failure to comply
with, any provision of this Agreement.
Article
11
Survival; Indemnification
Section 11.01.
Survival of Representations, Warranties and Agreements. The representations and warranties of the parties
hereto contained in this Agreement shall survive the Closing until the 18-month anniversary of the Closing Date; provided
that the representations and warranties contained in Sections 3.01, 3.02, 3.05,
3.06, 3.16 and 3.25 (collectively, the “Seller Fundamental Representations”)
and Sections 4.01, 4.02, 4.07, 4.08 and 4.10 (collectively,
the “Buyer Fundamental Representations”) shall survive the Closing indefinitely; and provided, further,
that (A) the representations and warranties contained in Section 3.18 shall survive until the four-year anniversary
of the Closing Date; and (B) the Post-Closing Tax Representations shall survive the full period of all statutes of limitations
for the collection of the underlying Tax plus 60 days (giving effect to any waiver, tolling, mitigation or extension thereof)
and the other representations and warranties set forth in Section 3.19 shall not survive the Closing. The covenants
and agreements of the parties hereto contained in this Agreement shall survive Closing indefinitely or for the shorter period
explicitly specified therein. Notwithstanding the preceding two sentences, any breach or inaccuracy of any covenant, agreement,
representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the time at which it
would otherwise terminate pursuant to the preceding two sentences, if notice of the breach or inaccuracy thereof giving rise to
such right of indemnity shall have been given pursuant to Sections 11.03 or 11.04, as applicable,
to the party against whom such indemnity may be sought prior to such time.
Section 11.02.
Indemnification. (a) Effective at and after the Closing, Seller indemnifies Buyer, the Purchased Subsidiaries and
each of their respective Affiliates (the “Buyer Indemnified Parties”) against and agrees to hold each of them
harmless from any and all damages, dues, penalties, fines, costs, liabilities, obligations, losses, expenses, and fees, including
court costs and reasonable attorneys’ and accountants’ fees and expenses, but excluding any Buyer Tax Losses (which,
for the avoidance of doubt are covered by Section 8.06) (“Damages”) actually suffered by any Buyer
Indemnified Party to the extent arising out of or relating to: (i) any breach of any representation or warranty made in this
agreement (other than a breach of the Post-Closing Tax Representation, which shall be governed by Section 8.06) (each
such breach, a “Warranty Breach”) by Seller; (ii) any breach of covenant or agreement made or to be performed
by Seller or, prior to the Closing, the Purchased Subsidiaries, pursuant to this Agreement or (iii) any amounts of Indebtedness
of the Purchased Subsidiaries as of the Closing or Seller Transaction Expenses, in each case solely to the extent such amounts
are not deducted for purposes of determining the payment of the Closing Purchase Price at the Closing or taken into account in
the calculation of the Purchase Price Adjustment Amount; provided that with respect to indemnification by Seller for Warranty
Breaches pursuant to Section 11.02(a)(i), (A) Seller shall not be liable in respect of any such misrepresentation
or breach until the aggregate amount of all Damages with respect to all such misrepresentations and breaches exceeds $13,500,000
(the “Deductible”), and then only to the extent of such excess, and (B) Seller’s maximum liability for
all such misrepresentations and breaches shall not exceed $202,500,000
(the “Cap”); provided, further,
that such limitations shall not apply to any Warranty Breach related to the Seller Fundamental Representations or the Post-Closing
Tax Representations. Seller’s maximum aggregate liability, including with respect to the Seller Fundamental Representations,
shall be limited to an amount equal to the Purchase Price. For the avoidance of doubt, the Seller’s obligation for Taxes
and other Buyer Tax Losses of the Purchased Subsidiaries or other Buyer Indemnified Parties shall be governed by Section
8.06 and not this Section 11.02.
(b)
Effective at and after the Closing, Buyer indemnifies Seller and its Affiliates against and agrees to hold each of them
harmless from any and all Damages (but excluding Seller Tax Losses, which, for the avoidance of doubt are covered by Section
8.06) incurred or suffered by Seller or any of its Affiliates to the extent arising out of or relating to: (i) any breach
of any representation or warranty made in this agreement by Buyer (other than the representations and warranties contained in
Section 4.10); (ii) any breach of covenant or agreement made or to be performed by Buyer pursuant to this Agreement
(other than a covenant or agreement contained in Article 8, which for the avoidance of doubt are covered by Section
8.06); or (iii) the ownership or operation of the Purchased Subsidiaries after the Closing; provided that with respect
to indemnification by Buyer for Warranty Breaches pursuant to Section 11.02(b)(i) (other than with respect to
the Buyer Fundamental Representations), (A) Buyer shall not be liable in respect of any such misrepresentation or breach until
the aggregate amount of all Damages with respect to all such misrepresentations and breaches exceeds the Deductible, and then
only to the extent of such excess, and (B) Buyer’s maximum liability for all such misrepresentations and breaches shall
not exceed the Cap. Buyer’s maximum aggregate liability, including with respect to Buyer Fundamental Representations, shall
be limited to an amount equal to the Purchase Price. For the avoidance of doubt, the Buyer’s obligation for Taxes and other
Seller Tax Losses is governed by Section 8.06 and not this Section 11.02.
(c)
Notwithstanding the foregoing, the Deductible and Cap shall not apply to the Seller’s obligation for Covered Taxes
or other Buyer Tax Losses and no such amounts shall be included in determining whether the Deductible or Cap applies to other
Damages.
Section 11.03.
Procedures. (a) Each Person seeking indemnification under this Article 11 (the “Indemnified
Party”) shall give prompt written notice to the Person from whom indemnification is sought (the “Indemnifying
Party”) of the assertion of any claim or the commencement of any Action by any third party (“Third Party Claim”);
provided that the failure of the Indemnified Party to give notice as provided in this Section 11.03(a)
shall not relieve any Indemnifying Party of its obligations under Section 11.02, except to the extent that such
failure actually prejudices the rights of any such Indemnifying Party. Such notice shall set forth in reasonable detail such claim
and the basis for indemnification (taking into account the information then available to the Indemnified Party). Thereafter, the
Indemnified Party shall deliver to the Indemnifying Party, as promptly as reasonably practicable following the Indemnified Party’s
receipt thereof, copies of all written notices and documents (including any court papers) received by the Indemnified Party relating
to the Third Party Claim and the Indemnified Party shall provide the Indemnifying Party with such other information with respect
to any such Third Party Claim reasonably requested by the Indemnifying Party. The Indemnifying Party shall have the right, at
its sole option and expense, to be represented by counsel of its choice and, subject to the limitations set forth in this Section
11.03, to assume control of, and defend against, negotiate, settle (subject to Section 11.03(b)) or otherwise
deal with such Third Party Claim, but the Indemnified Party may nonetheless participate in the defense of such Third Party Claim
with its own counsel and at its own expense. In the case of any Third Party Claim for which indemnification is sought, the Indemnifying
Party shall have the right, upon written notice to the Indemnified Party within 30 days after receipt of the notice of such claim
(the “Dispute Period”), to assume control of and defend against such Third Party Claim. If the Indemnifying
Party elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim, or fails to provide the Indemnified
Party with notice of its intent to assume control of and defend against any Third Party Claim within the Dispute Period, then
the Indemnified Party may defend against, negotiate, settle (subject to Section 11.03(b)) or otherwise deal with
such Third Party Claim. If the Indemnifying Party shall assume the defense of any Third Party Claim pursuant to this Article
11, then the Indemnified Party may participate, at his or its own expense, in the defense of such Third Party Claim; provided
that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the
Indemnifying Party if (i) requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the
Indemnifying Party, a material conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate
representation advisable; provided, further that the Indemnifying Party shall not be required to pay for more than one
such counsel for all Indemnified Parties in connection with any Third Party Claim. Notwithstanding the foregoing, participation
by the Indemnified Party shall allow the Indemnified Party to consult with independent counsel or advisors and to submit comments
and questions, which the Indemnifying Party shall consider or respond to in good faith but the Indemnifying Party shall not be
obligated to act upon and, subject to the terms of this Article 11, such comments or questions shall not alter or
limit the Indemnifying Party’s obligations as set forth in this Agreement.
(b)
Notwithstanding anything in this Section 11.03 to the contrary, neither the Indemnifying Party nor the
Indemnified Party shall, without the written consent of the other party, settle or compromise any Third Party Claim or permit
a default or consent to entry of any judgment. Notwithstanding the foregoing, consent of the Indemnified Party shall not be required
for any such settlement if (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party (other
than, for the avoidance of doubt, the payment of the deductible referred to in clause (B) of the proviso to Section
11.02(a)(iii) to the extent applicable), (ii) such settlement does not permit any order, injunction or other equitable relief
to be entered, directly or indirectly, against the Indemnified Party and (iii) such settlement includes an unconditional release
of such Indemnified Party from all liability on claims that are the subject matter of such Third Party Claim and does not include
any statement as to or any admission of fault, culpability or failure to act by or on behalf of any Indemnified Party. If the
Indemnifying Party makes any payment on any Third Party Claim or in respect of any Environmental Matter, then the Indemnifying
Party shall be subrogated, to the extent of such payment, to all rights and remedies
of the Indemnified Party to any insurance
benefits or other claims of the Indemnified Party with respect to such Third Party Claim or Environmental Matter, as applicable.
(c)
After any decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction, or
a settlement shall have been consummated (in accordance with this Article 11), or the Indemnified Party and the
Indemnifying Party shall have arrived at a mutually binding agreement with respect to a Third Party Claim hereunder, the Indemnified
Party shall forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement
with respect to such matter.
(d)
Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third
Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery
proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e)
Notwithstanding the foregoing, this Section 11.03 and the following Section 11.04 shall
not apply to indemnification for a Covered Tax or other Buyer Tax Losses. The procedures for such indemnification shall be governed
by Article 8.
Section 11.04.
Direct Claim Procedures. (a) In the event an Indemnified Party has a claim for indemnity under Section
11.02 against an Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party agrees to give prompt notice
in writing, and as promptly as practicable, of such claim to the Indemnifying Party, which notice shall in no event be delivered
to the Indemnifying Party later than 60 days after the Indemnified Party first learns of the facts on which such claim is based
(such 60-day period, the “Notice Period”). Such notice shall set forth in reasonable detail such claim and
the basis for indemnification and the amount of such Damages incurred or that such Indemnified Party reasonably estimates in good
faith is likely to be incurred in connection with such claim (taking into account the information then available to the Indemnified
Party). The failure to notify the Indemnifying Party as promptly as practicable within the Notice Period shall not relieve the
Indemnifying Party of its obligations hereunder, except to the extent that such failure shall have actually prejudiced the Indemnifying
Party (in which case relieved only to the extent of such prejudice), and in any event, the Indemnifying Party shall have no indemnification
obligation in respect of any claim for which notice is delivered following expiration of the applicable Notice Period for such
claim.
(b)
If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party
with respect to any claim other than a Third Party Claim or fails to notify the Indemnified Party within the Dispute Period, the
Damages arising from any such claim shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party
shall pay the amount of such Damages to the Indemnified Party on demand following the final determination thereof. If the Indemnifying
Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed
in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, either
party may seek a resolution
of such dispute by litigation in a court of competent jurisdiction pursuant to Section 13.06.
Section 11.05.
Environmental Matters. Notwithstanding anything to the contrary in this Article 11 and without
limiting the proviso in Section 11.02(a), with respect to any claim for indemnification hereunder for any breach
of any representation or warranty set forth in Section 3.18 (collectively, “Environmental Matters”),
the parties agree on behalf of themselves and their respective Affiliates that, in addition to the provisions set forth in Article
11, (and in the case of any conflict between the provisions of this Section 11.05 and any other provision in
Article 11, the provisions of this Section 11.05 shall prevail and apply):
(a)
Seller shall have no liability under this Agreement for any Damages (x) arising out of or resulting from any testing, sampling
or other invasive investigation of soil, soil gas, groundwater, sediment or surface water conducted on or after the Closing, unless
such testing, sampling or investigation performed by or on behalf of the Buyer Indemnified Parties was: (i) required by Environmental
Laws or Environmental Permits, (ii) required by any order issued under an Environmental Law or pursuant to a written request
by a Governmental Authority with authority under an Environmental Law to order such action, provided such order or request was
not solicited by or on behalf of any Buyer Indemnified Party, (iii) reasonably determined by Buyer or its Affiliates in good
faith to be necessary in connection with any construction, maintenance or repair activity at any Real Property where such construction,
maintenance or repair does or is reasonably expected to require access to, or disturbance of, soil or groundwater and such construction,
maintenance or repair is performed for a bona fide business purpose, (iv) required with respect to or reasonably necessary
to defend or resolve any Third Party Claim, (v) to the extent necessary in order for any Buyer Indemnified Party to comply
with the requirements of a lease agreement pertaining to a Leased Real Property provided such lease agreement or requirements
are in effect as of or prior to the Closing, (vi) requested by a lender to Buyer Indemnified Parties, provided such request
was not solicited by or on behalf of any Buyer Indemnified Party, (vii) reasonably requested by a prospective buyer in connection
with the sale process for an Owned Real Property or the business, provided such request was not solicited by or on behalf of any
Buyer Indemnified Party; and (viii) to the extent necessary to respond to facts or conditions that present a significant
risk to human health or the environment, and provided, in each case, that the limitations set forth in this Section
11.05(a)(x) shall not apply to any sampling or testing of drinking water, waste water, or indoor air, or to vapor intrusion testing
to the extent required by applicable Environmental Laws or Environmental Permits, or (y) arising in connection with any change
in use of Real Property from industrial to a non-industrial use, on or after the Closing. For purposes of clarity, the limitations
for Damages set forth in this Section 11.05(a) shall not apply to any Environmental Matters other than those relating
to Remedial Action.
(b)
Any obligation of Seller to indemnify a Buyer Indemnified Party (including as of the Closing, the Purchased Subsidiaries)
for any Remedial Action shall be limited to, and its obligations under this Agreement shall be satisfied upon achievement of,
in a reasonably cost-effective manner, standards based on the industrial use of the relevant property as of the Closing
Date,
as such standards are set forth in applicable Environmental Laws as in effect at the time such Remedial Action is addressed or
by any order or requirement of a Governmental Authority. Both parties expressly agree that such standards may include risk-based
clean-up remedies and standards and/or the imposition of engineering or institutional controls such as deed or other use restrictions
provided such remedies, standards, controls, deeds or restrictions do not unreasonably interfere with Buyer’s or the Purchased
Subsidiaries’ use and enjoyment of the Real Property in the manner it was used as of the Closing. Any obligation of Seller
to indemnify a Buyer Indemnified Party (including as of the Closing, the Purchased Subsidiaries) for any Environmental Matter
that is not a Remedial Action shall be limited to, and its obligations under this Agreement shall be satisfied upon achievement
of, in a reasonably cost-effective manner, standards based on the industrial use of the relevant property as of the Closing Date,
as such standards set forth in applicable Environmental Laws as in effect at the time such Environmental Matter is addressed or
by any order or requirement of a Governmental Authority. At its sole cost and expense, Seller shall be permitted to participate
in the investigation, remediation or other resolution of any Environmental Matter subject to indemnification under Section
11.02(a)(i) which is being controlled by a Buyer Indemnified Party, which participation by Seller shall allow Seller to consult
with independent environmental consultants or advisors and to submit comments and questions, which such Buyer Indemnified Party
shall consider or respond to in good faith but Buyer Indemnified Party shall not be obligated to act upon and, subject to the
terms of this Article 11, such comments or questions shall not alter or limit Seller’s indemnification obligations
as set forth in this Agreement.
(c)
Notwithstanding anything else herein to the contrary, Seller shall have no liability under this Agreement for any Damages
relating to any Environmental Matters to the extent arising from the post-Closing change in any requirement or obligation set
forth in any Environmental Law or Permit required by Environmental Law.
Section 11.06.
Calculation of Damages. (a) The amount of any Damages payable under Section 11.02 by the
Indemnifying Party shall be (A) grossed up for any Taxes payable on the receipt of the indemnity payment such that the net amount
received after the payment of all such Taxes equals the amount of Damages and (B) net of any (i) amounts recovered by the Indemnified
Party or its Affiliates under applicable insurance policies or from any other Person alleged to be responsible therefor, and (ii)
Tax benefit that has been actually realized by the Indemnified Party or its Affiliates (in the form of an increase in cash refunds
received or as a reduction in Taxes otherwise due) arising from the incurrence or payment of any such Damages. If the Indemnified
Party (A) receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any
Damages, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or out-of-pocket expense
incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the
Indemnified Party, net of any expenses or Taxes incurred by such Indemnified Party in collecting such amount or (B) actually realizes
or receives any net Tax benefit in the year the Damages were incurred (or the immediately succeeding year) that was not initially
included in the computation of Damages, then such Indemnified Party shall promptly
pay to the Indemnifying Party the amount of
such net Tax benefit, net of any out-of-pocket expenses incurred by such Indemnified Party in collecting such amount.
(b)
The Indemnifying Party shall not be liable under Section 11.02 for any (i) Damages relating to any matter to
the extent that (A) such matter is indicated on Exhibit A hereto as being “assumed by THS” (the “Specified
Matters”); provided, that such limitation shall only apply up to the amounts specified thereon; or (B) the Indemnified
Party had otherwise been compensated for such matter pursuant to the calculation of Final Closing Working Capital, Final Closing
Net Indebtedness, Final Seller Transaction Expenses or the adjustment of the Closing Purchase Price under Section
2.05 or any other provisions of this Agreement, (ii) consequential, incidental, special, exemplary, punitive or other similar
Damages (other than to the extent such Damages are finally awarded to be payable to a third party by a court of competent jurisdiction),
(iii) Damages for lost profits or diminution in value or (iv) portion of the Reduction Fee.
(c)
Each Indemnified Party shall mitigate in accordance with Applicable Law any Damage for which such Indemnified Party seeks
indemnification under this Agreement, and no Indemnifying Party shall be liable to any Indemnified Party for any Damages to the
extent arising from or aggravated by such Indemnified Party’s failure to mitigate or any other action taken or not taken
by such Indemnified Party. If such Indemnified Party mitigates its Damages after the Indemnifying Party has paid the Indemnified
Party under any indemnification provision of this Agreement in respect of that Damage, the Indemnified Party must notify the Indemnifying
Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less
the Indemnified Party’s reasonable costs of mitigation) within five Business Days after the benefit is received.
(d)
Each Indemnified Party and its Affiliates shall use commercially reasonable efforts to collect any amounts available under
insurance coverage for any Damages payable under Section 11.02.
(e)
Each party agrees that it shall not, and agrees to use its reasonable best efforts to ensure that its Affiliates do not,
voluntarily or by discretionary action, accelerate the timing, or increase the cost of, any obligations of the other party under
this Article 11.
(f)
Unless prohibited by Applicable Law, any indemnification payment made pursuant to this Agreement (for the avoidance of
doubt, including any payment made pursuant to Article 8) shall be treated by Buyer and Seller as an adjustment
to the Closing Purchase Price for Tax purposes.
Section 11.07.
Materiality. For purposes of (i) determining whether any representation or warranty has been breached or contains
any inaccuracy and (ii) calculating the amount of any Damages arising as a result of such breach or inaccuracy, any references
to “material”, “materiality” or “Material Adverse Effect” in the representations and warranties
shall be disregarded, except, in each case for (x) the representations and warranties set forth in Section 3.07, Section
3.08, Section 3.09, Section 3.10(a), Section 3.13(b), Section 3.17(a) and Section
3.20, (y) the use of the term “Material” in “Material Contract” and “Material Adverse Effect”
and (z) the use of the term “material” in the definition of Permitted Lien.
Section 11.08.
Assignment of Claims. If the Indemnified Party receives any payment from an Indemnifying Party in respect
of any Damages pursuant to Section 11.02 and the Indemnified Party or its Affiliates could have recovered all
or a part of such Damages from a third party (a “Potential Contributor”) based on the underlying claim asserted
against the Indemnifying Party, the Indemnified Party shall assign, or cause its Affiliates to assign, such of its rights to proceed
against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor
the amount of such payment.
Section 11.09.
Exclusivity of Remedies. Except as specifically set forth in this Agreement or the Transaction Documents,
Buyer waives and releases, on behalf of itself and all other Buyer Indemnified Parties, any rights and claims (whether absolute
or contingent, liquidated or unliquidated, known or unknown, determined, determinable or otherwise) that Buyer or any other Buyer
Indemnified Party may now or hereafter have against Seller, whether at law or in equity, relating to the Purchased Subsidiaries,
this Agreement or the transactions contemplated hereby, other than in the case of actual fraud. For the sake of clarity, and without
limiting the generality of the foregoing, except as specifically set forth in this Agreement, Buyer expressly waives and agrees
to cause its Affiliates (including, as of the Closing, the Purchased Subsidiaries) and other Buyer Indemnified Parties and their
respective successors and assigns, to waive any rights and claims they may have against Seller and its Affiliates, including claims
for contribution or other rights of recovery arising out of or relating to any Environmental Law (whether now or hereinafter in
effect), including the Comprehensives Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq.,
or to any Hazardous Substances, claims for breach of contract, breach of representation or warranty, negligent misrepresentation
and all other claims for breach of duty. Notwithstanding the foregoing, this Section 11.09 shall not prohibit either
party from obtaining any injunctive relief (including specific performance) if available pursuant to Section 13.09
with respect to any covenant or agreement contained in this Agreement.
Article
12
Termination
Section 12.01.
Grounds for Termination. This Agreement may be terminated at any time prior to the Closing:
(a)
by mutual written agreement of Seller and Buyer;
(b)
by either Seller or Buyer if the Closing shall not have been consummated on or before August 1, 2016 (the “End
Date”); provided that the right to terminate this Agreement pursuant to this Section 12.01(b)
shall not be available to any party whose breach of any provision of this Agreement has caused or resulted in the failure of the
Closing to be consummated by such time;
(c)
by either Seller or Buyer, if there shall be any Applicable Law (which shall be final and not subject to further appeal)
that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited, provided that the right
to terminate this Agreement pursuant to this Section 12.01(c) shall not be available to any party whose breach
of any provision of this Agreement has caused or resulted in such Applicable Law being enacted or becoming applicable to the transactions
contemplated hereby (including due to a failure to use reasonable best efforts in connection with the actions specified in Section
7.01 to the extent required thereunder);
(d)
by Buyer if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Seller
set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 10.02(a) or
10.02(b) not to be satisfied, and such conditions are incapable of being satisfied by the End Date; provided
that Buyer is not then in breach of this Agreement so as to cause any of the conditions set forth in Sections 10.01
or 10.03 not to be satisfied; or
(e)
by Seller if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of
Buyer set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 10.03(a)
or 10.03(b) not to be satisfied, and such conditions are incapable of being satisfied by the End Date; provided
that Seller is not then in breach of this Agreement so as to cause any of the conditions set forth in Sections
10.01 or 10.02 not to be satisfied.
Other than in the case of a termination
pursuant to Section 12.01(a), the party desiring to
terminate this Agreement pursuant to any clause of this Section
12.01 shall give written notice of such termination to the other party.
Section 12.02.
Effect of Termination. If this Agreement is terminated as permitted by Section 12.01, such
termination shall be without liability of either party (or any stockholder or Representative of such party) to the other party
to this Agreement; provided that the Confidentiality Agreement, the provisions of this Section 12.02 and
the provisions of Sections 6.01, 7.03, 11.09 and Article 13 shall survive
any such termination; and provided, further that the termination of this Agreement shall not relieve any party hereto
from any liability for (i) fraud and (ii) any willful and material breach of, or failure to perform any obligation under, any
covenant or agreement contained in this Agreement.
Article
13
Miscellaneous
Section 13.01.
Notices. All notices, requests and other communications to any party hereunder shall be in writing (including
facsimile transmission and electronic mail (“e-mail”) transmission, so long as a receipt of such e-mail is
requested and received) and shall be given,
if to Buyer,
to:
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TreeHouse Foods, Inc. |
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2021 Spring Road |
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Suite 600 |
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Oak Brook, IL 60523 |
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Attention: General Counsel |
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Facsimile No.: |
(708) 409-1062 |
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with a copy (which shall not constitute notice) to: |
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|
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Winston & Strawn LLP |
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35 West Wacker Drive |
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Chicago, IL 60601 |
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Attention: |
Bruce A. Toth |
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Matthew F. Bergmann |
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Facsimile No.: |
(312) 558-5700 |
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Email: |
btoth@winston.com |
|
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mbergmann@winston.com |
if to Seller, to: |
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|
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ConAgra Foods, Inc. |
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One ConAgra Drive |
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Omaha, Nebraska 68102 |
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Attention: |
Corporate Secretary |
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Facsimile No.: |
(402) 517-9267 |
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|
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with a copy (which shall not constitute notice) to: |
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|
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Davis Polk & Wardwell LLP |
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450 Lexington Avenue |
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New York, NY 10017 |
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Attention: |
Arthur F. Golden |
|
|
Marc O. Williams |
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Facsimile No.: |
(212) 701-5000 |
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E-mail: |
arthur.golden@davispolk.com |
|
|
marc.williams@davispolk.com |
or such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and
other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in
the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding business day in the place of receipt.
Section 13.02.
Amendments and Waivers. (a) Any provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case
of a waiver, by the party against whom the waiver is to be effective, and in the case of an amendment of the definition of “Financing
Sources” in Section 4.05(a), this Section 13.02 , Section 13.05, Section
13.06, Section 13.07, Section 13.08 or Section 13.13(b) may not be amended or modified without
the written consent of the Financing Sources to the extent such amendment or modifications would have an adverse effect on the
Financing Related Parties’ rights thereunder.
(c)
No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. Except as otherwise provided in Section 13.09, the rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 13.03.
Expenses. Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
Section 13.04.
Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise
transfer (by operation of Applicable Law or otherwise) any of its rights or obligations under this Agreement without the consent
of the other party hereto, and any purported assignment, delegation or transfer of rights or obligations under this Agreement
in violation of this provision shall be null and void ab initio. Notwithstanding the prior sentence, Buyer may, without
the consent of the other parties hereto (i) assign its rights, interests and obligations under this Agreement to any of its wholly-owned
Subsidiaries, if such Subsidiary delivers to Seller an instrument in writing that it is bound by and shall perform the obligations
of Buyer under this Agreement as if it were an original signatory hereto or (ii) assign its rights or interests under this Agreement
(in whole or in part) as collateral to any financial or lending institution providing financing to Buyer; provided that,
in each case, no such assignment shall release Buyer from any of its obligations hereunder. In the event of an assignment contemplated
by this Section 13.04, any reference in this Agreement to “Buyer” shall be deemed to include its Subsidiary
transferee.
Section 13.05.
Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State
of New York, without regard to the conflicts of law rules of such state.
Section 13.06.
Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall
be brought in the United States District Court for the Southern District of New York or any New York State court sitting in New
York City, so long as one of such courts shall have subject matter jurisdiction over such suit,
action or proceeding, and that
any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of
New York, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section
13.01 shall be deemed effective service of process on such party. Notwithstanding anything contrary in this Agreement, each party
agrees that it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind or description,
whether in law or in equity, whether in contract or in tort or otherwise, against any of the Financing Sources or any of their
respective former, current and future direct or indirect equity holders, controlling persons, stockholders, members, managers,
general or limited partners, in their capacity as such (together with the Financing Sources, the “Financing Related Parties”)
in any way relating to this Agreement, including any dispute arising out of or relating to the Debt Financing Commitments, any
Alternate Debt Financing or the performance thereof or the Debt Financing, in any forum other than the Supreme Court of the State
of New York, County of New York, or, if under applicable law jurisdiction is vested in the Federal courts, the United States District
Court of the Southern District of New York (and of the appropriate appellate courts therefrom).
Section 13.07.
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY LEGAL
PROCEEDING AGAINST ANY FINANCING RELATED PARTY RELATED TO THIS AGREEMENT, THE DEBT FINANCING, ANY DEBT FINANCING COMMITMENT, ANY
ALTERNATE DEBT FINANCING OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 13.08.
Counterparts; Effectiveness; No Third Party Beneficiaries. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the
other party hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement
shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written
agreement or other communication). No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations,
or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns, except, (a)
with respect to Section 7.06, any legal counsel representing Seller or any of its Affiliates, including any Purchased
Subsidiary, in connection with the Current Representation and (b) the Financing Sources shall be express third party beneficiaries
of Section 4.05(a) (with respect to the definition of “Financing
Sources”), Section 13.02, Section
13.05, Section 13.06, Section 13.07, this Section 13.08 and Section 13.13(b) and
the Financing Sources shall be entitled to enforce such provisions directly.
Section 13.09.
Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this
Agreement (including failing to take such actions as are required of it hereunder to consummate the transactions contemplated
hereby) were not performed in accordance with the terms hereof and that the parties shall be entitled to seek an injunction or
injunctions to prevent breaches or threatened breaches of this Agreement, or to enforce specifically the performance of the terms
and provisions hereof or thereof in any federal court located in the State of New York or, to the extent that no such federal
court has jurisdiction over such proceeding, in any New York state court, in addition to any other remedy to which they are entitled
at law or in equity. In furtherance of the foregoing, the parties hereby waive, to the fullest extent permitted by Applicable
Law, (a) any and all defenses to any action for specific performance hereunder, including any defense based on the claim that
a remedy at law would be adequate and (b) any requirement to post a bond or other security as a prerequisite to obtaining equitable
relief.
Section 13.10.
Entire Agreement. The Transaction Documents and the Confidentiality Agreement constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter hereof and thereof.
Section 13.11.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent
jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby
be consummated as originally contemplated to the fullest extent possible.
Section 13.12.
Disclosure Schedule. The parties acknowledge and agree that (i) matters reflected on the Disclosure Schedule
are not necessarily limited to matters required to be reflected therein, (ii) the inclusion of any items or information in the
Disclosure Schedule that are not required by this Agreement to be so included is solely for the convenience of Buyer, (iii) the
disclosure by Seller of any matter in the Disclosure Schedule shall not be deemed to constitute an acknowledgement by Seller that
the matter is required to be disclosed by the terms of this Agreement or that the matter is material, (iv) if any section of the
Disclosure Schedule lists an item or information in such a way as to make its relevance to the disclosure required by or provided
in another section of the Disclosure Schedule or the statements contained in any Section this Agreement reasonably apparent, the
matter shall be deemed to have been disclosed in or with respect to such other Section, notwithstanding the omission of an appropriate
cross-
reference to such other Section or the omission of a reference in the particular representation and warranty to such section
of the Disclosure Schedule, (v) except as provided in clause (iv) above, headings have been inserted in the Disclosure
Schedule for convenience of reference only, (vi) the Disclosure Schedule is qualified in its entirety by reference to specific
provisions of this Agreement and (vii) the Disclosure Schedule and the information and statements contained therein are not intended
to constitute, and shall not be construed as constituting, representations or warranties of Seller except as and to the extent
provided in this Agreement. Without limiting the generality of the foregoing, all references in the Disclosure Schedule to the
enforceability of agreements with third parties, the existence or non-existence of third-party rights, the absence or existence
of breaches or defaults by Seller, any of its Subsidiaries or third parties, or similar matters or statements, are intended only
to allocate rights and risks among the parties to the Agreement and are not intended to be admissions against interests, give
rise to any inference or proof of accuracy or be admissible against any party by or in favor of any Person who is not a party
to this Agreement.
Section 13.13.
No Recourse. (a) Without limiting any other provision of this Agreement, it is hereby agreed and acknowledged
that this Agreement may only be enforced against, and any claims of action that may be based upon, arise out of, or relate to,
this Agreement, or the negotiation, execution or performance of this Agreement, may only be made, against the parties hereto,
and no former, current or future Affiliates, officers, directors, managers, employees, equityholders, managers, members, partners,
agents, representatives or assigns of Seller or Buyer, in each case who is not a party to this Agreement shall have any liability
for any obligations of the parties hereto or for any claim based on, in respect of, or by reason of, the transactions contemplated
hereby.
(b)
Notwithstanding anything in this Agreement to the contrary, each of the parties hereto expressly agrees that (i) none of
the Financing Related Parties will have any liability or obligation to the Seller, the Purchased Company or any of their respective
stockholders, Representatives or Affiliates relating to or arising out of this Agreement, the transactions contemplated hereby,
the Debt Financing, any Debt Financing Commitment or any Alternate Debt Financing commitment, or for any claim for any liability,
settlement, damages, costs, expenses, fines, penalties or loss suffered in connection with this Agreement or the transactions
contemplated hereunder, including as a result of any breach of this Agreement, the Debt Financing, any Debt Financing Commitment
or any Alternate Debt Financing commitment (including any willful breach thereof), or the failure of the transactions contemplated
hereby or thereby to be consummated, or in respect of any oral or written representation made or alleged to have been made, in
connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise, and (ii) none of the Seller, the
Purchased Company or any of their respective stockholders, Representatives or Affiliates will have any direct rights or claims
against any of the Financing Related Parties under or in connection with this Agreement, the Debt Financing, any Debt Financing
Commitment or any Alternate Debt Financing commitment or in connection with the transactions contemplated hereby or thereby, whether
at law or equity, in tort or otherwise and the Seller and the Purchased Company hereby waive all such rights and claims on behalf
of themselves and on behalf of their respective controlled Affiliates. None of the Seller, the
Purchased Company or any of their
respective controlled Affiliates will commence any action or proceeding against any Financing Related Party relating to or in
connection with this Agreement, the Debt Financing, any Debt Financing Commitment, any Alternate Debt Financing commitment or
the transactions contemplated hereby or thereby and no Representative of the Seller or any Purchased Subsidiary (in their capacities
as Representatives) will do so with the Seller’s or Purchased Company’s support or on its behalf; and the Seller and
the Purchased Company will cooperate with the Buyer or Financing Sources in seeking to dismiss such suit commenced by Seller’s
or the Purchased Company’s Representatives in their capacities as such. Notwithstanding anything herein to the contrary,
each of the parties hereto expressly agrees that in no event shall the Seller, the Purchased Company or any of their respective
Representatives or controlled Affiliates be entitled to seek the remedy of specific performance of any Debt Financing Commitment
or any Alternate Debt Financing commitment against the Financing Sources; provided, that nothing herein to the contrary
shall prohibit (i) the Buyer from enforcing its rights directly against the Financing Sources under any Debt Financing Commitment
or any Alternate Debt Financing commitment or causing the Financing Sources to fund pursuant to any Debt Financing Commitment
or any Alternate Debt Financing commitment (and nothing herein shall alter the Buyer’s obligations otherwise set forth in
this Agreement with respect to enforcing the Debt Commitment or any Alternate Debt Financing) and (ii) the Seller or the Purchased
Company from seeking specific performance pursuant to Section 13.09 to cause the Buyer to consummate the purchase
of the Shares and the other transactions contemplated hereby.
[The
remainder of this page has been intentionally left blank; the next page is the signature page.]
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day
and year first above written.
|
CONAGRA FOODS, INC. |
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By: |
/s/ Andrew Ross |
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Name: |
Andrew Ross |
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Title: |
Executive Vice President and Chief Strategy Officer |
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TREEHOUSE FOODS, INC. |
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By: |
/s/ Dennis Riordan |
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Name: |
Dennis Riordan |
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Title: |
Executive Vice President and Chief Financial Officer |
|
[Signature
page to the Stock Purchase Agreement]
Exhibit 99.1
|
News Release |
For more information, please contact: |
MEDIA: Jon Harris |
630-857-1440 |
jon.harris@conagrafoods.com |
|
INVESTORS: Chris Klinefelter |
402-240-4154 |
Chris.Klinefelter@ConAgraFoods.com |
FOR IMMEDIATE
RELEASE
CONAGRA FOODS TO SELL PRIVATE LABEL OPERATIONS
TO TREEHOUSE FOODS
OMAHA, Neb., November 2, 2015
– ConAgra Foods, Inc. (NYSE: CAG) today announced that it has reached a definitive agreement to sell its private label operations
to TreeHouse Foods for approximately $2.7 billion in cash, excluding transaction-related expenses.
Sean Connolly, president and
chief executive officer, ConAgra Foods, said, “The sale of our private label business marks another important milestone
as we remake ConAgra Foods into a focused, higher-margin, more contemporary and higher-performing company. This transaction will
enable ConAgra to sharpen our focus and resources on our Consumer Foods and Commercial Foods segments as we continue to move quickly
to drive sustainable growth and deliver enhanced shareholder value.”
Mr. Connolly continued, “Today’s
announcement follows a robust sale process involving more than 35 potential buyers, including both strategic buyers and financial
sponsors. We are confident that the private label business will be in good hands with TreeHouse Foods, and better-positioned to
reach its full potential as part of a focused private label company.”
Under the terms of the agreement,
ConAgra Foods will divest the vast majority of its private label operations, which are classified as discontinued operations.
Among other assets, this includes a network of 32 manufacturing facilities in the U.S., Canada and Italy. ConAgra Foods will retain
certain private label operations with a strong connection to its existing Consumer Foods business,
specifically canned pasta,
cooking spray, peanut butter, pudding/gels, Gelit frozen pasta product offerings, as well as the HK Anderson and Kangaroo
brand equity, trademark and business portfolios; the results for these operations, which were not material, were moved to
the Consumer Foods reporting segment in the first quarter of fiscal 2016.
The Company expects to generate
approximately $2.7 billion in proceeds from the sale, less transaction expenses, and intends to utilize the net proceeds primarily
for debt reduction. Following the transaction, the company expects to have a capital loss carryforward of approximately $4.2 billion
with an approximate tax value of $1.6 billion, which can be used to offset potential future capital gains over the next five years.
ConAgra Foods will provide details regarding the revised presentation of historical results for its remaining reporting segments,
as well as its use of proceeds and long-term financial goals, in due course.
The transaction is subject to
customary closing conditions and regulatory clearances, and is expected to close in the first quarter of calendar year 2016. Goldman
Sachs and Centerview Partners acted as financial advisors to ConAgra Foods on the transaction. Davis Polk & Wardwell LLP served
as legal advisor.
About ConAgra Foods
ConAgra Foods, Inc., (NYSE: CAG)
is one of North America's largest packaged food companies with branded and private branded food found in 99 percent
of America’s households, as well as a strong commercial foods business serving restaurants and foodservice operations globally.
Consumers can find recognized brands such as Banquet®, Chef Boyardee®, Egg Beaters®, Healthy Choice®, Hebrew
National®, Hunt's®, Marie Callender's®, Orville Redenbacher's®, PAM®, Peter Pan®, Reddi-wip®,
Slim Jim®, Snack Pack® and many other ConAgra Foods brands, along with food sold by ConAgra Foods under
private brand labels, in grocery, convenience, mass merchandise, club and drug stores. Additionally, ConAgra Foods supplies
frozen potato and sweet potato products as well as other vegetable, spice, bakery and grain products to commercial and foodservice
customers. ConAgra Foods operates ReadySetEat.com, an interactive recipe website that provides consumers with easy
dinner recipes and more. For more information, please visit us at www.conagrafoods.com.
Note on Forward-looking
Statements
This press release contains forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are based
on management’s current expectations and are subject to uncertainty and changes in circumstances. These risks and uncertainties
include, among other things: ConAgra Foods’ ability to successfully execute an exit option for its private label operations
within the expected time frame or at all; ConAgra Foods’ ability to successfully execute its long-term value creation strategy;
ConAgra Foods’ ability to realize the synergies and benefits contemplated by the Ardent Mills joint venture; risks and uncertainties
associated with intangible assets, including any future goodwill or intangible assets impairment charges; the availability and
prices of raw materials, including any negative effects caused by inflation or weather conditions; the effectiveness of ConAgra
Foods’ product pricing, including product innovation, any pricing actions and changes in promotional strategies; the ultimate
outcome of litigation, including litigation related to the lead paint and pigment matters; future economic circumstances; industry
conditions; the effectiveness of ConAgra Foods’ hedging activities, including volatility in commodities that could negatively
impact ConAgra Foods’ derivative positions and, in turn, ConAgra Foods’ earnings; ConAgra Foods’ ability to
execute its operating and restructuring plans and achieve operating efficiencies; the success of ConAgra Foods’ cost-saving
initiatives, innovation, and marketing investments; the competitive environment and related market conditions; the ultimate impact
of any ConAgra Foods’ product recalls; access to capital; actions of governments and regulatory factors affecting ConAgra
Foods’ businesses, including the Patient Protection and Affordable Care Act; the amount and timing of repurchases of ConAgra
Foods’ common stock and debt, if any; the costs, disruption and diversion of management’s attention associated with
campaigns commenced by activist investors; and other risks described in ConAgra Foods’ reports filed with the Securities
and Exchange Commission, including its most recent annual report on Form 10-K and subsequent reports on Forms 10-Q and 8-K. Investors
and security holders are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the
date they are made. ConAgra Foods disclaims any obligation to update or revise statements contained in this press release to reflect
future events or circumstances or otherwise.
# # #
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