STOCK AND ASSET PURCHASE AGREEMENT dated as of August 1, 2019 by and among CAMPBELL SOUP COMPANY and SNACKING INVESTMENTS BIDCO PTY LIMITED

EXECUTION VERSION

dated as of August 1, 2019

by and among

XXXXXXXX SOUP COMPANY

and

SNACKING INVESTMENTS BIDCO PTY LIMITED

			Page
ARTICLE I
		DEFINITIONS	2
	Section 1.01	Certain Defined Terms	2
ARTICLE II
		PURCHASE AND SALE	2
	Section 2.01	Purchase and Sale of Transferred Interests	2
	Section 2.02	Purchase and Sale of Transferred IP	2
	Section 2.03	Closing	2
	Section 2.04	Purchase Price	3
	Section 2.05	Closing Adjustment	3
	Section 2.06	Closing Deliveries by the Seller Parties	4
	Section 2.07	Closing Deliveries by Buyer	5
	Section 2.08	Post-Closing Adjustment	6
	Section 2.09	Accounting Procedures	8
	Section 2.10	Withholding	8
ARTICLE III
		REPRESENTATIONS AND WARRANTIES OF PARENT	9
	Section 3.01	Organization and Authority of the Seller Parties	9
	Section 3.02	Organization and Qualification of the Transferred Companies	9
	Section 3.03	Capital Structure of the Transferred Companies	9
	Section 3.04	No Conflict	10
	Section 3.05	Consents and Approvals	11
	Section 3.06	Financial Information; Absence of Undisclosed Liabilities	11
	Section 3.07	Absence of Certain Changes or Events	12
	Section 3.08	Absence of Litigation	12
	Section 3.09	Compliance with Laws	12
	Section 3.10	Governmental Licenses and Permits	12
	Section 3.11	Intellectual Property	13
	Section 3.12	Environmental Matters	14
	Section 3.13	Material Contracts	14
	Section 3.14	Employment and Employee Benefits Matters	15
	Section 3.15	Real Property; Title to Assets	17
	Section 3.16	Taxes	18

	Section 3.17	Inventory	19
	Section 3.18	Suppliers and Customers	20
	Section 3.19	Accounts Receivable and Payable	20
	Section 3.20	Intercompany Arrangements	21
	Section 3.21	Anti-Corruption; Trade Compliance	21
	Section 3.22	Sufficiency of Assets	22
	Section 3.23	Brokers	22
	Section 3.24	Affiliate Transactions	22
	Section 3.25	Insurance	22
	Section 3.26	No Other Representations or Warranties	23
ARTICLE IV
		REPRESENTATIONS AND WARRANTIES OF BUYER	23
	Section 4.01	Incorporation, Qualification and Authority of Buyer; Equity
		Consideration	23
	Section 4.02	No Conflict	24
	Section 4.03	Consents and Approvals	24
	Section 4.04	Absence of Restraints; Compliance with Laws	24
	Section 4.05	Securities Matters	24
	Section 4.06	Financial Ability	25
	Section 4.07	Brokers	27
	Section 4.08	Solvency	27
	Section 4.09	Investigation; No Reliance	27
ARTICLE V
		ADDITIONAL AGREEMENTS	28
	Section 5.01	Conduct Prior to the Closing	28
	Section 5.02	Access to Information	31
	Section 5.03	Records Preservation	34
	Section 5.04	Sale and Lease-Back	34
	Section 5.05	Confidentiality	35
	Section 5.06	Regulatory and Other Authorizations; Consents	36
	Section 5.07	D&O Indemnification; Insurance	38
	Section 5.08	Guarantees; Other Obligations	40
	Section 5.09	Repayment of Existing Credit Facilities	41
	Section 5.10	Hedge Terminations	41
	Section 5.11	Further Assurances	41

	Section 5.12	Pre-Closing Reorganization Transactions	42
	Section 5.13	Financing	42
	Section 5.14	R&W Policy Matters	46
	Section 5.15	Non-Solicitation and Non-Competition	47
	Section 5.16	Brand Principles	49
	Section 5.17	Consultation Rights	49
	Section 5.18	Trademarks	49
	Section 5.19	Local Law Cooperation Matters	49
ARTICLE VI
		EMPLOYEE MATTERS	50
	Section 6.01	General	50
	Section 6.02	Effect of Agreement; No Third Party Beneficiaries	51
ARTICLE VII
		TAX MATTERS	51
	Section 7.01	Transfer Taxes	51
	Section 7.02	Tax Cooperation	51
	Section 7.03	Post-Closing Actions	52
	Section 7.04	Tax Treatment	53
	Section 7.05	Tax Sharing Agreements	53
	Section 7.06	GST	53
ARTICLE VIII
		CONDITIONS TO CLOSING	54
	Section 8.01	Conditions to Each Party’s Obligation	54
	Section 8.02	Conditions to Obligations of Parent	54
	Section 8.03	Conditions to Obligations of Buyer	55
	Section 8.04	Frustration of Closing Conditions	55
ARTICLE IX
		TERMINATION, AMENDMENT AND WAIVER	56
	Section 9.01	Termination	56
	Section 9.02	Notice of Termination	57
	Section 9.03	Effect of Termination	57
	Section 9.04	Termination Fee	57

	Section 9.05	Extension; Waiver	58
	Section 9.06	Survival of Representations, Warranties and Covenants	58
ARTICLE X
		GENERAL PROVISIONS	59
	Section 10.01	Expenses	59
	Section 10.02	Notices	59
	Section 10.03	Public Announcements	60
	Section 10.04	Severability	60
	Section 10.05	Entire Agreement	61
	Section 10.06	Assignment	61
	Section 10.07	No Third-Party Beneficiaries	61
	Section 10.08	Amendment	61
	Section 10.09	Disclosure Letter	62
	Section 10.10	Governing Law; Submission to Jurisdiction	62
	Section 10.11	Specific Performance	63
	Section 10.12	Rules of Construction	64
	Section 10.13	Counterparts	65
	Section 10.14	Waiver of Jury Trial	65
	Section 10.15	No Recourse	65

EXHIBITS

Exhibit A – Transferred Subsidiaries

Exhibit B – Transferred IP

Exhibit C – Definitions

Exhibit D – Transaction Accounting Principles; Reference Working Capital Statement; Reference Indebtedness Statement

Exhibit E – IP Assignment Agreement

Exhibit F – Patent and Technology License Agreement

Exhibit G – Transition Services Agreement

Exhibit H – Trademark License Agreement

Exhibit I – V-7 Supply Agreement

Exhibit J – Finished Goods Supply Agreements

Exhibit K-1 – Equity Commitment Letter

Exhibit K-2 – Limited Guarantee

Exhibit L – Debt Commitment Documentation

Exhibit M – Pre-Closing Reorganization Transactions

Exhibit N  – Sale and Lease-Back Indemnity Limitation

Exhibit O – Capex Forecast

This STOCK AND ASSET PURCHASE AGREEMENT, dated as of August 1, 2019 (this “Agreement”), is made by and among Snacking Investments BidCo Pty Limited, an Australian private company (“Buyer”), and Xxxxxxxx Soup Company, a New Jersey corporation (“Parent”).

RECITALS

WHEREAS, Parent and one or more of its subsidiaries operate the business (the “Business”) of developing, making, manufacturing, processing, packaging, distributing, supplying and/or selling products (i) under the XXXXXX’x, XXXXXXX and COUNTRY LADLE brand and sub-brands, including SHAPES, TIMTAM, JATZ, VITA-WHEAT, CRUSKITS, SALADA, TINY TEDDY, NYAM NYAM and GOOD TIME brands and (ii) in the countries listed on Exhibit C to the Trademark License Agreement (as defined below) under the CAMPBELL’S, SWANSON, V8, PREGO, CHUNKY, XXXXXXXX’X CHUNKY, XXXXXXXX’X REAL STOCK, M’M M’M GOOD, PURPLE POWER, POWER BLEND, WAKE UP & SHAKE UP, XXXXXXXX’X COUNTRY LADLE and XXXXXXXX’X WELL YES! brands, and including, but not limited to, POWER BLEND and PURPLE POWER sub-brands;

WHEREAS, immediately prior to the Closing (as defined below), after completion of the Pre-Closing Reorganization Transactions (as defined below), (i) Xxxxxxxx Hong Kong Limited, a Hong Kong limited company (“Seller” and together with Parent, the “Seller Parties”) will directly, or in the case of Parent, indirectly, own all of the outstanding equity interests of Aust Holdco (as defined below) (the “Transferred Interests”), and (ii) Aust Holdco will own, directly or indirectly, all of Parent’s interest in each of the entities listed on Exhibit A to this Agreement (such entities, the “Transferred Subsidiaries” and together with Aust Holdco, the “Transferred Companies”);

WHEREAS, Parent wishes to sell and assign to Buyer and Buyer wishes to purchase and assume from Parent, the Transferred IP and any related rights and Liabilities, and Parent wishes to cause Seller to sell to Buyer, and Buyer wishes to purchase from Seller, the Transferred Interests, in each case upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, concurrently with the execution of this Agreement and as a condition and inducement to Parent’s willingness to enter into this Agreement, (i) Buyer has delivered to Parent a true, correct and complete copy of the Equity Commitment Letter (attached hereto as Exhibit K-1) pursuant to which the Sponsors have committed, subject to the terms and conditions therein, to provide to Buyer equity funding for purposes of financing the transactions contemplated by this Agreement, and (ii) the Sponsors are entering into a limited guarantee, dated as of the date hereof, in favor of Parent (the “Limited Guarantee”, a true, correct and complete copy of which is attached hereto as Exhibit K-2) with respect to certain obligations of Buyer under this Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants, representations, warranties and agreements hereinafter set forth and intending to be legally bound, the parties to this Agreement agree as follows:

Parent hereby represents and warrants to Buyer that, except as set forth in the Disclosure Letter (it being understood and agreed that each disclosure set forth in the Disclosure Letter shall qualify or modify each of the representations and warranties set forth in this Article III to the extent the applicability of the disclosure to such representation and warranty is reasonably apparent from the text of the disclosure made):

Buyer hereby represents and warrants to Parent that:

“Restricted Area” means the territories where the Transferred Companies manufacture or sell Restricted Products as of the date hereof (but excluding, for the avoidance of doubt, Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxx and Europe).

“Restricted Business” means the business of manufacturing or selling biscuits, crackers, cookies and other products that are substantially similar to the products manufactured and sold by the Transferred Companies as of Closing (the “Restricted Products”);

“Restricted Period” means the period from the Closing Date until the date that is three (3) years after the Closing Date.

“Restricted Person” means (for the avoidance of doubt, subject to the second last sentence of Section 5.15(c)) any Person that, directly or indirectly, (i) is engaged in a Restricted Business in a Restricted Area or (ii) owns greater than 50% of the equity shares of, or that otherwise controls, a Person engaged in a Restricted Business, in each case, in a Restricted Area.

(a) GST exclusive.  Unless this Agreement expressly states otherwise, all consideration to be provided under this document is exclusive of GST.

if to Parent:

Xxxxxxxx Soup Company
Xxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention:  General Counsel

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:  Xxxxxxx X. Xxxxxx; Xxxxxx X. Xxxxx; Xxxxx Xxxxxxx
Facsimile:  (000) 000 0000
E-mail: xxxxxxx.xxxxxx@xxxx.xxx; xxxxxx.xxxxx@xxxx.xxx; xxxxx.xxxxxxx@xxxx.xxx

if to Buyer:

Snacking Investments BidCo Pty Limited CAN 634 909 032

c/- TMF Corporate Services (Aust) Pty Limited

Xxxxx 00, 000 Xxxxxxxxx Xxxxxx

Xxxxxx, XXX 0000

with copies (which shall not constitute notice) to:


Xxxxxxx Xxxxxxx & Xxxxxxxx LLP

000 Xxxxxxxxx Xxxxxx

Xxx Xxxx, XX 00000

Attention:  Xxxxxxx Xxxx Xxxxx; Xxx X. Xx
Facsimile:  (000) 000-0000
Email: xxxxxx@xxxxxx.xxx; xxx@xxxxxx.xxx

Allens

Xxxxx 00, Xxxxxxxx Bank Place

000 Xxxxxxx Xxxxxx

Xxxxxx, Xxx Xxxxx Xxxxx

Xxxxxxxxx

Attention:  Xxxx Xxxxxxxxxx; Xxx Xxxxx

Facsimile:  x00 0 0000 0000
Email: Xxx.Xxxxx@xxxxxx.xxx.xx; Xxxx.Xxxxxxxxxx@xxxxxx.xxx.xx

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[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, Buyer and Parent have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

	BUYER:
	SNACKING INVESTMENTS BIDCO PTY LIMITED
	By	/s/ Xxxxx Xxxxx
		Name: Xxxxx Xxxxx
		Title: Director
	PARENT:
	XXXXXXXX SOUP COMPANY
	By	/s/ Xxxxxxx X. XxXxxxxxxxx
		Name: Xxxxxxx X. XxXxxxxxxxx
		Title: Senior Vice President and
		Chief Financial Officer

EXHIBIT C

DEFINITIONS

“245A Election” shall have the meaning set forth in Section 7.03(b).

“245A Election Agreement” shall have the meaning set forth in Section 7.03(b).

“Accounting Firm” shall have the meaning set forth in Section 2.08(c).

“Action” means any claim, counterclaim, action, audit, suit, arbitration, proceeding or investigation by or before any Governmental Authority.

“Additional Agreements” means the Confidentiality Agreement, the Transition Services Agreement, the Trademark License Agreement, the Patent and Technology License Agreement, the V-7 Supply Agreement, the Finished Goods Supply Agreements and the IP Assignment Agreement(s), in each case including all exhibits and schedules thereto and all amendments thereto made in accordance with the respective terms thereof.

“Affiliate” means, with respect to any specified Person, any other Person that, at the time of determination, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person; provided that the Transferred Companies shall not be deemed to be Affiliates of the Seller Parties or, prior to the Closing, the Buyer for purposes of this Agreement.  Notwithstanding the foregoing, for purposes of this Agreement, the direct or indirect portfolio companies (as such term is understood in the private equity industry) of investment vehicles advised or managed by or one or more of Buyer’s Affiliates shall not be deemed to be an Affiliate of Buyer.

“Agreement” shall have the meaning set forth in the Preamble.

“Anti-Corruption Laws” means any anti-bribery or anti-corruption Laws (including Laws that prohibit the corrupt payment, giving, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any Government Official, commercial entity or any other Person to obtain a business advantage) applicable to any Transferred Company and their respective operations from time to time, including without limitation (i) the U.S. Foreign Corrupt Practices Act of 1977, (ii) anti-bribery legislation promulgated by the European Union and implemented by its member states, (iii) legislation adopted in furtherance of the OECD Convention on Combating Bribery of  Foreign Public Officials in International Business Transactions, and (iv) any similar Laws in any other jurisdiction in which any Transferred Company operates, in each case as amended from time to time.

“Anti-Money Laundering Laws” means any anti-money laundering-related Laws and codes of practice applicable to the Transferred Companies and their operations from time to time, including without limitation (i) the EU Anti-Money Laundering Directives and any laws, decrees, administrative orders, circulars, or instructions implementing or interpreting the same, and (ii) the applicable financial recordkeeping and reporting requirements of the U.S. Currency and Foreign Transaction Reporting Act of 1970, as amended.

“Assets” means all assets, properties, goods, inventory, work in progress, rights, privileges, Permits, books and records, services, claims, causes of action, Contracts, Intellectual Property and interests of every nature, type and description, wherever located and whether real, personal or mixed, tangible or intangible.

“Aust Bidco” shall have the meaning set forth in Exhibit M.

“Aust Bidco Note 2” shall have the meaning set forth in Exhibit M.

“Aust Holdco” shall have the meaning set forth in Exhibit M.

“Balance Sheet” shall have the meaning set forth in Section 3.06(a).

“Bankruptcy and Equity Exception” shall have the meaning set forth in Section 3.01.

“Base Payment” shall have the meaning set forth in Section 2.04.

“Business” shall have the meaning set forth in Recitals.

“Business Day” means any day that is not a Saturday, a Sunday or other day on which commercial banks in Singapore, the City of Xxx Xxxx, Xxx Xxxx xx Xxxxxx, Xxx Xxxxx Xxxxx are required or authorized by Law to be closed.

“Business Employee” means each Person who is employed by the Transferred Companies immediately prior to the Closing, including those employees on medical leave, family leave, military leave or personal leave under the policy of any of the Seller Parties, and each Person set forth on Section A of the Disclosure Letter who is employed by the Seller Parties or any of their Affiliates (other than the Transferred Companies) on the date of this Agreement and who provides services primarily related to the Business and who remains so employed immediately prior to the Closing.

“Buyer” shall have the meaning set forth in the Preamble.

“Buyer Fundamental Representations” means the representations and warranties set forth in Section 4.01 (Incorporation, Qualification and Authority of Buyer).

“Buyer Material Adverse Effect” means, with respect to Buyer, a material adverse effect on the ability of Buyer to perform its obligations under any Transaction Agreement to which it is a party or to consummate the transactions contemplated hereby or thereby.

“Cash” means, as of any time, all cash, cash equivalents, marketable securities, deposits held at call with financial institutions, and short-term highly investments with original maturity of three months or less that are readily convertible into known amounts of cash, in each case, of the Transferred Companies, in accordance with the Transaction Accounting Principles and less any declared and unpaid cash dividends as of such time.  Notwithstanding the foregoing, “Cash” shall include the aggregate amount of checks issued by third parties in favor of the Transferred Companies which are in the possession of the Transferred Companies but which have not yet been deposited, or that have been deposited but have not yet cleared, but shall not include (i) the aggregate amount of uncleared checks issued by any Transferred Company to any third party or (ii) any assets included in Working Capital.

“CCC” means Xxxxxxxx Company of Canada.

“Closing” shall have the meaning set forth in Section 2.03.

“Closing Adjustment” shall have the meaning set forth in Section 2.05(c).

“Closing Date” shall have the meaning set forth in Section 2.03.

“Closing Date Cash” means the Cash as of the Closing but without giving effect to the consummation of the transactions at the Closing contemplated by this Agreement, calculated in accordance with the Transaction Principles.

“Closing Date Indebtedness” means the Debt of the Transferred Companies as of the Closing but without giving effect to the consummation of the transactions at the Closing at the Closing contemplated by this Agreement, calculated in accordance with the Transaction Accounting Principles and in a manner consistent with the illustrative calculation set forth in the Reference Indebtedness Statement in Exhibit D.

“Closing Date Working Capital” means the Working Capital as of the Closing but without giving effect to the consummation of the transactions at the Closing contemplated by this Agreement, calculated in accordance with the Transaction Accounting Principles and in a manner consistent with the illustrative calculation set forth in the Reference Working Capital Statement in Exhibit D.

“Closing Date Working Capital Adjustment” means an amount equal to (i) Closing Date Working Capital minus (ii) Target Working Capital.

“Closing Notice” shall have the meaning set forth in Section 2.05.

“Closing Payment” shall have the meaning set forth in Section 2.04.

“Closing Statement” shall have the meaning set forth in Section 2.08(a).

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

“Company Plans” shall have the meaning set forth in Section 3.14(a).

 “Commitment Documentation” shall have the meaning set forth in Section 4.06(a).

“Commitment Letters” shall have the meaning set forth in Section 4.06(a).

“Confidential Information” shall have the meaning set forth in Section 5.05(c).

“Confidentiality Agreement” shall have the meaning set forth in Section 5.05(a).

“Contracts” means all written contracts, subcontracts, agreements, leases, licenses, commitments, sales and purchase orders, and other instruments, arrangements or understandings of any kind.

“Control” means, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.  The terms “Controlled by”, “Controlled”, “under common Control with” and “Controlling” shall have correlative meanings.

“Debt” means:

(i) all indebtedness of the Transferred Companies for borrowed money or in respect of loans, advances, or interest rate derivative or hedging transactions (including any unpaid principal, premium and accrued and unpaid interest);

(ii) all obligations of the Transferred Companies for the deferred purchase price of property or services (other than trade payables, accrued expenses and other similar obligations incurred in the ordinary course of business consistent with past practice), including pursuant to any conditional sale, title retention or similar agreement;

(iii) all obligations of the Transferred Companies evidenced by notes, bonds, debentures or other similar instruments, to the extent not included in clause (i);

(iv) all obligations of the Transferred Companies as lessee under leases or similar arrangements that have been or should be, in accordance with IFRS or the Accounting Standards Codification 840 (Leases) in effect during the fiscal year ending July 31, 2019, classified as a finance lease (excluding, for the avoidance of doubt, any operating leases that may be recognized on the balance sheet of the Transferred Companies as a result of the application of IFRS 16 Leases from (and including) the fiscal year ending July 31, 2020);

(v) all obligations of the Transferred Companies under acceptance, letter of credit or similar facilities, but in each case only to the extent drawn;

(vi) all obligations of the Transferred Companies to purchase, redeem, retire, defease or otherwise acquire for value any capital stock of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary or involuntary liquidation preference, including any obligations in respect of dividends declared or other distributions payable;

(vii) all Debt of others of the types referred to in clauses (i) through (vii) above guaranteed directly or indirectly in any manner by any Transferred Company;

(ix) any interest, fees and penalties accrued with respect to any Debt of the types referred to in clauses (i) through (vii) above, and any prepayment premiums, penalties and other expenses (including breakage costs) payable in order to retire or extinguish any such Debt at its redemption value, but excluding any unamortized debt issuance costs;

(x) all Debt of the types referred to in clauses (i) through (ix) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by any Transferred Company, even though such Person has not assumed or become liable for the payment of such Debt; provided that such Debt shall only be considered Debt to the extent of the fair market value of the property so encumbered;

(xi) any (A) unpaid Transaction Costs and Transaction Bonuses payable by any Transferred Company and (B) unpaid amounts, including any fees and expenses of advisors, owed by any Transferred Company in relation to pending Actions as of the Closing;

(xii) the obligation for Tax, net of current Tax refunds or other current Tax receivables but excluding the prepayment of Tax in Indonesia (each as determined on an accrual basis and in accordance with applicable Tax law) in respect of the period prior to the Closing Date (but excluding Tax amounts included in the Closing Date Working Capital and deferred tax assets and liabilities);

(xiii) any indebtedness owed by the Transferred Companies to any Seller Party or any of their respective Affiliates;

(xiv) without duplication of any amounts in clause (i) above, the net derivative obligation, if any, of the Transferred Companies at its fair value as confirmed in the aggregate by the relevant financial institutions;

(xv) an amount equal to:

(a) the sum of the amounts set out in the row 'Total Capex' in the table set forth in Exhibit O, with respect to each of the complete fiscal months from (and including) August 1, 2019 up to (and including) the Closing Date, less

(b) the capital expenditure (exclusive of any applicable GST) incurred by the Transferred Companies during the period from (and including) August 1, 2019 to (and including) the Closing Date, but excluding any unpaid amounts not included in Closing Date Working Capital; and

(xvi) any outstanding balance of the restructuring reserve as of the Closing Date.

Notwithstanding the foregoing, “Debt” shall not include any liabilities included in Transaction Costs (other than as expressly set forth in clause (xi)) or Working Capital.

“Debt Commitment Documentation” shall have the meaning set forth in Section 4.06(a).

“Debt Commitment Letter” shall have the meaning set forth in Section 4.06(a).

“Debt Financing” shall have the meaning set forth in Section 4.06(a).

“Debt Financing Sources” shall have the meaning set forth in Section 4.06(a).

“Disclosure Letter” means the disclosure letter dated as of the date hereof delivered by Parent to Buyer and which forms a part of this Agreement.

“D&O Insurance” shall have the meaning set forth in Section 5.07(b).

“Employee Plans” shall have the meaning set forth in Section 3.14(a).

“End Date” means February 1, 2020.

“Environmental Law” means any applicable Law, including common law relating to pollution or protection of the environment, natural resources or health and human safety as related to exposure to hazardous materials; provided that, for the avoidance of doubt, Environmental Law shall not pertain to food safety matters.

“Environmental Permit” means any permit, approval, exemption, license or Governmental Approval required by or issued under any Environmental Law.

“Equity Commitment Letter” shall have the meaning set forth in Section 4.06(a).

“Equity Financing” shall have the meaning set forth in Section 4.06(a).

“Equity Portion of the Closing Payment” means a portion of the Closing Payment equal to the Closing Payment, less the Net Settlement Portion of the Closing Payment.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

“Estimated Closing Cash” shall have the meaning set forth in Section 2.05(a).

“Estimated Closing Debt” shall have the meaning set forth in Section 2.05(a).

“Estimated Purchase Price” shall have the meaning set forth in Section 2.05(d).

“Estimated Working Capital” shall have the meaning set forth in Section 2.05(b).

“Estimated Working Capital Adjustment” means an amount equal to (i) Estimated Working Capital minus (ii) Target Working Capital. “Event” shall have the meaning set forth in the definition of “Material Adverse Effect.”

“Existing Credit Facilities” means (i) either (A) that certain Syndicated Facility Agreement, dated as of September 11, 2018 and as further amended, amended and restated or otherwise modified prior to the Closing Date, among, Arnott’s Biscuits Holdings Pty Ltd, Parent, Citibank, N.A. Sydney Branch as arranger, Citisecurities Limited, as administrative agent, and the lenders party thereto, or if applicable (B) the intercompany loan referenced in Item 5 of Section 5.01 of the Disclosure Letter and (ii) that certain Uncommitted A$ Advance Facility, dated as of August 8, 2017 and as further amended, amended and restated or otherwise modified prior to the Closing Date, among Arnott’s Biscuits Limited and Citibank N.A.

“Fee Letters” shall have the meaning set forth in Section 4.06(a).

“Final Purchase Price” shall have the meaning set forth in Section 2.08(a).

“Financial Information” shall have the meaning set forth in Section 3.06(a).

“Financing” shall have the meaning set forth in Section 4.06(a).

“Financing Sources” shall have the meaning set forth in Section 4.06(a).

“Finished Goods Supply Agreements” shall have the meaning set forth in Section 2.06(g).

“FIRB” means the Australian Foreign Investment Review Board.

“Foreign Benefit Plan” shall have the meaning set forth in Section 3.14(a).

“Governmental Approval” means any authorizations, consents, waivers, orders and approvals of any Governmental Authority, including any applicable waiting periods associated therewith.

“Governmental Authority” means any U.S. federal, state or local or any supra national or non-U.S. government, political subdivision, governmental, regulatory or administrative authority, instrumentality, agency, body or commission, self-regulatory organization or any court, tribunal, or judicial or arbitral body, and includes the governing body of any stock exchange(s).

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

“Government Official” includes any officer, employee or other person acting in an official capacity on behalf of (i) any Governmental Authority or any department or agency of a Government, including elected officials, judicial officials, civil servants and military personnel, children, spouses, siblings or parents of a Government Official; (ii) any public international organization, such as the World Bank; (iii) any company or business that is owned or Controlled by a Governmental Authority; and (iv) any political party, as well as candidates for political office.

“GST” has the meaning given in A New Tax System (Goods and Services Tax) Xxx 0000 (Cth).

“Hazardous Substance” means any material, substance or waste that is regulated pursuant to or for which liability may be imposed under Environmental Law or that is classified, regulated or otherwise characterized under any Environmental Law as “hazardous,” or “toxic” or as a “pollutant” or “contaminant” or words of similar meaning or effect.

“Hedge Amendment Notice” shall have the meaning set forth in Section 5.10.

“Hedge Contract” means any Contract to which a Transferred Company is a party with respect to a swap, forward, future or derivative transaction or option or similar agreement, whether exchange traded, “over-the-counter” or otherwise, involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.

“Hedge Termination Notice” shall have the meaning set forth in Section 5.10.

“IFRS” means International Financial Reporting Standards, International Accounting Standards and interpretations of those standards issued by the International Accounting Standards Board and the International Financial Reporting Interpretations Committee and their predecessor bodies.

“Insurance Policy” shall have the meaning set forth in Section 3.25.

“Intellectual Property” means all intellectual property and other rights, arising under the Laws of the United States or of any other jurisdiction, including all: (a) patents and patent applications (including patents issued thereon), including reissues, divisions, continuations, continuations in part, extensions and reexaminations thereof, (b) trademarks, service marks, trade names, service names, business, corporate, d/b/a and similar names, trade dress, logos, Internet domain names and subdomains, email addresses, IP addresses, social and mobile media identifiers and other source indicators, including all common law rights and all goodwill associated therewith, and registrations and applications for registration thereof, and all reissues, extensions and renewals of any of the foregoing, including all goodwill associated therewith (“Trademarks”), (c) all rights in respect of copyright, databases, data and designs and registrations and applications therefor, works of authorship and mask work rights and all moral rights associated therewith, and (d) trade secrets, methods, processes, inventions, know-how, formulae, recipes and confidential information (“Trade Secrets”).

“IP Assignment Agreement” shall have the meaning set forth in Section 2.06(b).

“IT Systems” means information and communications technology equipment, hardware, software, databases, systems, websites, applications and networks (and all data stored thereon or processed thereby).

“Knowledge of Parent” means the actual knowledge of the Persons listed on Section A of the Disclosure Letter.

“Law” means any U.S. federal, state or local or any non-U.S. statute, law, ordinance, regulation, rule, code, Order, directive or other requirement or rule of law in any applicable jurisdiction.

“Leased Real Property” shall have the meaning set forth in Section 3.15(b).

“Lender Designated Sections” shall have the meaning set forth in Section 10.08.

“Lender Related Party” shall have the meaning set forth in Section 9.04(c).

“Liabilities” means any Debt, liability, loss, damage, claim, demand, cost, expense (including reasonable attorneys’ and consultants’ fees and expenses), interest, award, judgment, penalty, commitment or obligation (whether direct or indirect, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due) of every kind and description, including all costs and expenses related thereto and including those arising under any Law, Action or Governmental Order and those arising under any Contract.

“Licensed Intellectual Property” means any Intellectual Property that is owned by Parent or its Affiliates and the subject of an exclusive license to Buyer or the Transferred Companies pursuant to an Additional Agreement.

“Lien” means any mortgage, deed of trust, pledge, hypothecation, security interest, encumbrance, claim, adverse ownership interest, statutory payment obligation,  license, lien, charge, easement, right of first refusal, right of first offer, limitation or restriction of any kind or any other encumbrance of any kind, character or description.

“Limited Guarantee” shall have the meaning set forth in the Recitals.

“Lux Holdco” shall have the meaning set forth in Exhibit M.

“Material Adverse Effect” means any circumstance, matter, change, development, event, state of facts, occurrence or effect (each, an “Event”) that, individually or in the aggregate with other Events, has had or would reasonably be expected to have or result in (a) a material adverse effect on the businesses, assets, liabilities, operations, condition (financial or otherwise) or results of operations of the Transferred Companies or the Business (including the Transferred IP), in each case, taken as a whole; provided, however, that for the purposes of this clause (a) any adverse effect to the extent arising out of, resulting from or attributable to any circumstance occurring after the date of this Agreement described in the following clauses (i) through (viii) shall not constitute or be deemed to contribute to a Material Adverse Effect, and otherwise shall not be taken into account in determining whether a Material Adverse Effect has occurred or would be reasonably expected to occur: (i) an Event or series of Events affecting the United States (or any other country) or global economy generally or capital, financial, credit, securities or currency markets generally, including changes in interest or exchange rates, (ii) general political conditions (including escalation of hostilities, acts of war (whether declared or undeclared), act of terrorism or military actions, or any escalation or worsening of any of the foregoing) generally of the United States or any other country or jurisdiction in which the Business operates, (iii) an Event or series of Events affecting generally the industry in which the Business operates, (iv) the execution or the announcement of, or the consummation of the transactions contemplated by the Transaction Agreements, including actions specifically required to be taken or required to be omitted pursuant to the Transaction Agreements (except that the exception in this clause (iv) shall not be taken into account for purposes of Section 3.04 or Section 3.05), (v) any changes in applicable Law, IFRS or the enforcement or interpretation thereof, (vi) actions specifically required to be taken or required to be omitted pursuant to the Transaction Agreements (except that the exception in this clause (vi) shall not be taken into account for purposes of Section 3.04 or Section 3.05), or taken or omitted with Buyer’s prior written consent or (vii) any failure by the Business to meet internal or published projections, estimates or forecasts of revenues, earnings, or other measures of financial or operating performance for any period (provided that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded by this clause (vii)) except in the case of the foregoing clauses (i), (ii), (iii), or (v), to the extent such Event is (or would reasonably be expected to be) disproportionately adverse with respect to the Business, in each case, taken as a whole, compared to other Persons operating in the same industry, or (b) any material impairment or material delay in the ability of Parent or its applicable Affiliates to perform their obligations under any Transaction Agreements to which they are party or to consummate the transactions contemplated hereby or thereby.

“Material Contract” means the following Contracts, except for this Agreement, that any of the Transferred Companies (or Parent or its other Affiliates, with respect to the Business, including the Transferred IP) is a party to as of the date of this Agreement or to which any of its Assets are bound:

“Net Settlement Portion of the Closing Payment” means the accrued and unpaid principal, interest, fees and expenses of the Aust Bidco Note 2 (as defined in Exhibit M) as of the Closing Date.

“Non-Recourse Party” shall have the meaning set forth in Section 10.15.

“Owned Intellectual Property” means the Transferred IP, the Registered Intellectual Property set forth in Section 3.11(a) of the Disclosure Letter and all other Intellectual Property owned by the Transferred Companies.

“Owned Real Property” shall have the meaning set forth in Section 3.15(a).

“Parent” shall have the meaning set forth in the Preamble.

“Parent’s Fiscal Month End” shall have the meaning set forth in Section 2.03.

“Parent Fundamental Representations” means the representations and warranties set forth in Section 3.01 (Organization and Authority of the Seller Parties), Section 3.02 (Organization and Qualification of the Transferred Companies) and Section 3.03 (Capital Structure of the Transferred Companies).

“Parent Plans” shall have the meaning set forth in Section 3.14(a).

“Patent and Technology License Agreement” shall have the meaning set forth in Section 2.06(c).

“Permits” shall have the meaning set forth in Section 3.10(a).

“Permitted Exceptions” means: (a) Liens for Taxes, assessments or other governmental charges or levies that are not yet delinquent or that are being contested in good faith by appropriate proceedings or that may thereafter be paid without penalty and for which adequate reserves have been established in the Financial Information in accordance with the Transaction Accounting Principles; (b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, workmen, repairmen and other Liens imposed by Law and on a basis consistent with past practice for amounts which are not due and payable; (c) Liens incurred or deposits made in the ordinary course of business

and on a basis consistent with past practice in connection with workers’ compensation, unemployment insurance or other types of social security; (d) defects or imperfections of title, easements, covenants, rights of way, restrictions and other similar charges, title exceptions or encumbrances disclosed in policies, reports or title insurance which Parent has made available to Buyer which do not, individually or in the aggregate, impair the use, operation, value or marketability of any Asset to which they relate that is material to the Business or materially adversely affect the value of the Business; (e) Liens incurred in the ordinary course of business and on a basis consistent with past practice securing obligations or liabilities that are not material to the Business; (f) Liens resulting from any facts or circumstances relating  to Buyer or its Affiliates; (g) zoning, entitlement and other land use and environmental regulations issued by any Governmental Authority which are not violated by the current use or occupancy of Owned Real Property or Leased Real Property or the operation of the Business; (i) Liens disclosed to Buyer that have been placed by a third party on the fee title of real property constituting Owned Real Property, Leased Real Property or real property over which the Transferred Companies have easement rights, and subordination or similar agreements relating thereto, (j) Liens that do not, and would not reasonably be expected to, materially detract from the value of any of the property, rights or assets of the Business or materially interfere with the use thereof as currently used by the Business (including, in the case of Licensed Intellectual Property, non-exclusive licenses), (k) the terms of any leases, licenses or other agreements related to real property, copies of which were made available to the Buyer, and (l) non-exclusive licenses of Intellectual Property granted in the ordinary course of business.

“Person” means any natural person, general or limited partnership, corporation, company, trust, limited liability company, limited liability partnership, firm, Governmental Authority, association or organization or other legal entity.

"Personal Information" means any information which: (i) is personal information, as defined in the Privacy Xxx 0000 (Cth), or (ii) comes within the definition of personal information (or any equivalent term) under other applicable Laws.

“Pre-Closing Reorganization Transactions” shall have the meaning set forth in Section 5.12.

“Privacy Policies” means policies relating to privacy, Personal Information and the security of the IT Systems.

“Privileged Communications” shall have the meaning set forth in Section 5.02(e).

“Prohibited Amendments” shall have the meaning set forth in Section 5.13(a).

“Proposed Purchase Price Calculations” shall have the meaning set forth in Section 2.08(a).

“Purchase Price” shall have the meaning set forth in Section 2.04.

“Purchase Price Dispute Notice” shall have the meaning set forth in Section 2.08(b).

“Reference Indebtedness Statement” means the statement set forth in Exhibit D which has been derived from the Balance Sheet and sets forth an example for illustrative purposes only of Closing Date Indebtedness.

“Reference Working Capital Statement” means the statement set forth in Exhibit D and which has been derived from  the Balance Sheet and sets forth an example for illustrative purposes only of Closing Date Working Capital.

“Registered Intellectual Property” means Intellectual Property that is issued by, or registered or filed with, any Governmental Authority, Internet domain name registrar or social media network, including patents, registered copyrights, designs, registered trademarks, Internet domain names, social media identifiers and applications for any of the foregoing.

“Regulatory Actions” shall have the meaning set forth in Section 5.06(b).

“Regulatory Laws” means any federal, state and foreign statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.

“Release” means the spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, migration, disposal of Hazardous Substance into or through the indoor or outdoor environment.

“Reorganization Documents” shall have the meaning set forth in Section 5.12(b).

“Representative” of a Person means such Person’s Affiliates and its and their respective directors, officers, employees, advisors, agents, consultants, attorneys, accountants, investment bankers or other representatives of such Person.

“Required Regulatory Approvals” means those regulatory notifications, consents, terminations, expirations of waiting periods and approvals set forth on Section 8.01(a) of the Disclosure Letter.

“Restricted Area” shall have the meaning set forth in Section 5.15.

“Restricted Employee” shall have the meaning set forth in Section 5.15(a).

“Restricted Period” shall have the meaning set forth in Section 5.15.

“Restricted Person” shall have the meaning set forth in Section 5.15.

“Restricted Products” shall have the meaning set forth in Section 5.15.

“Resolution Period” shall have the meaning set forth in Section 2.08(b).

“Retention Bonuses” shall have the meaning set forth in Section 6.01(e).

“R&W Policy” shall have the meaning set forth in Section 5.14.

“R&W Policy Expenses” shall have the meaning set forth in Section 5.14.

“Sale and Lease-Back” shall have the meaning set forth in Section 5.04.

“Sanctions” means all trade, economic and financial sanctions Laws administered, enacted or enforced from time to  time by (i) the United States (including without limitation  the Department of Treasury, Office of Foreign Assets Control and the United States Department of State), (ii) the European Union and enforced by its member states, (iii) the United Nations, (iv) the United Kingdom (including without limitation Her Majesty’s Treasury), (v) Australia, or (vi) any other similar Governmental Authority with regulatory authority over the Transferred Companies from time to time.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.

“Seller Guarantees” means, collectively, all letters of credit, guarantees, surety bonds, performance bonds and other financial assurance obligations issued or entered into by or on behalf of (or for the account of) the Seller Parties or any of their Affiliates (other than exclusively by the Transferred Companies) in connection with the Business, each of which are listed in Section 5.08 of the Disclosure Letter.

“Seller Parties” shall have the meaning set forth in the Recitals.

“Specified Hedging Agreements” means each of the Hedge Contracts listed on Section 5.10 of the Disclosure Letter.

“Sponsors” means KKR Core Investors (C) L.P., KKR Core Investors (H), L.P. and KKR Core Investors L.P.

“Subsidiary” or “Subsidiaries” of any specified Person means any other Person of which such first Person owns (either directly or through one or more other Subsidiaries) a majority of the outstanding equity securities or securities carrying a majority of the voting power in the election of the board of directors or other governing body of such Person, and with respect to which entity such first Person is not otherwise prohibited contractually or by other legally binding authority from exercising control.

“Target Working Capital” means $26,600,000.

“Tax” or “Taxes” means all income, excise, gross receipts, ad valorem, value added, sales, goods and services, use, employment, franchise, profits, gains, property, transfer, use, payroll, stamp, intangibles or other taxes, duties, charges, levies or assessments of any kind whatsoever (whether payable directly or by withholding), together with any interest and any penalties, additions to tax or additional amounts imposed by any Tax Authority with respect thereto.

“Tax Authority” means any Governmental Authority responsible for the administration, collection or enforcement of any Tax.

“Tax Returns” means all returns and reports (including claim of refund, elections, declarations, disclosures, schedules, estimates and information returns and any attachments thereto) supplied or required to be supplied to a Tax Authority relating to Taxes, including amendment thereof.

“Termination Fee” shall have the meaning set forth in Section 9.04(a).

“Trade Secrets” shall have the meaning set forth in the definition of “Intellectual Property”.

“Trademark License Agreement” shall have the meaning set forth in Section 2.06(e).

“Transaction Accounting Principles” means the transaction accounting principles set forth in Exhibit D.

“Transaction Agreements” means this Agreement and each of the Additional Agreements.

“Transaction Bonuses” means any bonus, profit share, retention, severance, “stay put”, incentive or similar payments payable by a Transferred Company (including any Retention Bonuses, and for the avoidance of doubt, the aggregate amount of all Retention Bonuses shall be included in Closing Date Indebtedness to the extent unpaid prior to Closing) to any current or former Business Employee (inclusive of any related on-costs) in connection with the transactions contemplated by this Agreement.

“Transaction Costs” means any fees, costs and expenses (inclusive of GST or other value-added Taxes, where applicable) incurred or committed to or otherwise payable by the Transferred Companies as of Closing (including any amounts triggered on or as a result of the Closing), other than any Transaction Bonuses, or which will result in future payments by the Transferred Companies after Closing, in each case arising as a result of the transactions contemplated by this Agreement (including in connection with the Pre-Closing Reorganization, any other reorganization transaction or divestiture by Parent or any of its Affiliates, and the process undertaken by Parent and its Affiliates to divest the Business), including any fees, costs and expenses of investment bankers, external auditors, accountants, consultants, counsel and other advisors or service providers to Parent or any of its Affiliates, as applicable, but excluding any Transfer Taxes described in Section 7.01.

“Transfer Taxes” means any sales Taxes, use Tax, direct or indirect real property transfer Tax (which for the avoidance of doubt does not include any capital gains tax, income tax or similar tax) or  documentary stamp Tax or similar Taxes and related fees.

“Transferred Companies” shall have the meaning set forth in the Recitals.

"Transferred Company Interests" shall have the meaning set forth in Section 3.03.

“Transferred Interests” shall have the meaning set forth in the Recitals.

“Transferred IP” means (i) all Intellectual Property listed on Exhibit B; and (ii) all other Intellectual Property owned by Parent and its Affiliates (other than the Transferred Companies) that exclusively relates to developing, making, manufacturing, processing, packaging, distributing, supplying and/or selling products under the ARNOTT’s, and XXXXXXX brand and sub-brands, including SHAPES, TIMTAM, JATZ, VITA-WHEAT, CRUSKITS, SALADA, TINY TEDDY, NYAM NYAM and GOOD TIME brands, and in each case, including the right to bring an Action, at law or in equity, for any infringement or violation of the foregoing prior to the Closing Date and to retain all proceeds, damages and monies therefrom. “Transferred IP” does not include any Intellectual Property (y) owned by Parent or its Affiliates (other than the Transferred Companies) that is used by or relates to any other brands or businesses, including but not limited to, the CAMPBELL’S, SWANSON, V8, PREGO, CHUNKY, and CAMPBELL’S REAL STOCK, or (z) that is licensed to Buyer or the Transferred Companies pursuant to an Additional Agreement.

“Transferred Subsidiaries” shall have the meaning set forth in the Recitals.

“Transition Services Agreement” shall have the meaning set forth in Section 2.06(d).

“Treasury Regulations” means the U.S. Treasury regulations promulgated under the Code.

“U.S. Tax Resident” shall have the meaning set forth in Section 7.03(b).

“V-7 Supply Agreement” shall have the meaning set forth in Section 2.06(f).

“Working Capital” means in relation to the Transferred Companies, an amount equal to the aggregate of the same line items as marked as “Working Capital” in the Reference Working Capital Statement.

TRADEMARK LICENSE AGREEMENT

THIS TRADEMARK LICENSE AGREEMENT (this “Agreement”) is made on [●] 2019¹ (the “Effective Date”)

BETWEEN

(1)	XXXXXXXX SOUP COMPANY, a New Jersey corporation (the “Licensor”); and

(2)	[LICENSEE ENTITY TO BE CONFIRMED], [●] (the “Licensee”).

Licensor and Licensee are individually referred to as a “Party” and collectively as the “Parties.”

WHEREAS,

(A)

Licensor and Snacking Investments Bidco Pty Limited (“Buyer”) [(an Affiliate of Licensee)] have entered into a Stock and Asset Purchase Agreement, dated as of [●] (as may be amended, restated, supplemented or modified, from time to time, the “SAPA”), pursuant to which Licensor agreed to sell to [Buyer] and [Buyer] agreed to purchase from Licensor the Transferred IP and the other Seller Parties agreed to sell to Buyer and [Buyer] agreed to purchase from the other Seller Parties the Transferred Interests, in each case, upon the terms and conditions set forth in the SAPA.

(B)	Licensor is the owner of the Licensed Marks (as defined below) and, in connection with the SAPA, Licensor wishes to grant to Licensee and Licensee wishes to receive from Licensor a license to use the Licensed Marks, upon the terms and conditions set out in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties agree as follows:

1.	DEFINITIONS

_____________________________

(b)

“Affiliate” means, with respect to any specified Person, any other Person that, at the time of determination, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person.  Notwithstanding the foregoing, for purposes of this Agreement, the direct or indirect portfolio companies (as such term is understood in the private equity industry) of investment vehicles advised or managed by or one or more of Licensee's Affiliates shall not be deemed to be an Affiliate of Licensee.

(c)

“Brand Names” means the CAMPBELL’S, SWANSON, V8, PREGO, CHUNKY, XXXXXXXX’X CHUNKY, XXXXXXXX’X REAL STOCK. M’M M’M GOOD, PURPLE POWER, POWER BLEND, XXXXXXXX’X COUNTRY LADLE, XXXXXXXX’X WELL YES! and WAKE UP & SHAKE UP brands, as set forth on Exhibit B, and all applicable sub-brands associated with any of the foregoing.

(d)	“Brand Principles” means the framework of brand principles with respect to the Licensed Marks and Brand Names, as agreed between Licensor and [Licensee] and attached hereto as Exhibit F.

(e)	“Business” means the business carried out by the Transferred Companies in the Territory during the twelve (12) month period prior to the Effective Date.

(f)	“Xxxxxxxx Product Quality Assurance Requirements” means Licensor’s requirements regarding product quality assurance, attached hereto as Exhibit A, as may be updated from time to time in accordance with Section 6.1.

(g)	“Composite” has the meaning set forth in Section 2.5(c).

(h)	“Confidential Information” has the meaning set forth in Section 15.1.

(i)	“Disclosing Party” has the meaning set forth in Section 15.1.

(j)	“Enforcing Party” has the meaning set forth in Section 9.3.

(k)

“Licensed Marks” means those Trademarks owned or controlled by Licensor or its Affiliates, containing or comprising the Brand Names and used for the applicable Product Category in the Territory, including each registered and common law trademark listed on Exhibit B, as may be supplemented from time to time in accordance with this Agreement.2

(l)

“Licensed Products” means (a) the products to which the Licensed Marks have been applied by the Transferred Companies in the Business as of the Effective Date, without any modifications to the formulas or recipes of such products, (b) any new products that are Line Extensions of the foregoing that Licensee may develop after the Effective Date and [to which Licensor consents pursuant to Section 2.1(a) or]3 are consistent with the Brand Principles (once applicable) and the Xxxxxxxx Product Quality Assurance Requirements, and (c) any new products to which Licensor consents pursuant to Section 2.3.

(m)

“Line Extension” means, with respect to a product to which a Licensed Xxxx has been applied by the Transferred Companies in the Business as of the Effective Date, any product variation of such product in the exact Product Category (as designated on Exhibit B) as such product. By way of example for clarity, a sauce product variation using the “PREGO” Licensed Xxxx shall be considered a “Line Extension” but any other new product using the “PREGO” Licensed Xxxx in any product category other than sauce shall not be considered a “Line Extension” and shall instead be considered a new product and subject to Licensor’s consent pursuant to Section 2.3.

(n)	“Losses” has the meaning set forth in Section 11.1.

(o)	“Maintenance” has the meaning set forth in Section 10.1.

(p)	“Product Category” means a product category set forth on Exhibit B.

(q)	“Receiving Party” has the meaning set forth in Section 15.1.

(r)	“SAPA” has the meaning set forth in the Recitals.

(s)	“Term” has the meaning set forth in Section 13.1.

(t)

“Territory” means those countries set forth on Exhibit C and any additional countries or jurisdictions in which the Business had any sales of products under the Brand Names during the fiscal year ended on July 28, 2019; in each case, (i) subject to the restrictions set forth in this Agreement, including in Section 2.4 and on Exhibit C, and (ii) excluding all other countries not described above or specifically identified on Exhibit C, including all U.S. territories and those countries which are subject to U.S. sanctions or other restrictions at the applicable time.

(u)

“Trademarks” means trademarks, service marks, trade names, service names, business, corporate, d/b/a and similar names, trade dress, logos, Internet domain names and subdomains, email addresses, IP addresses, social and mobile media identifiers and other source indicators, including all common law rights and all goodwill associated therewith, and registrations and applications for registration thereof, and all reissues, extensions and renewals of any of the foregoing.

(v)	“Variation” has the meaning set forth in Section 2.5(a).

2.	LICENSE GRANTS

2.1.

Subject to the terms and conditions of this Agreement, Licensor, on behalf of itself and its Affiliates, hereby grants to Licensee, during the Term, an exclusive (even as against Licensor and its Affiliates), royalty-free, fully paid-up, non-transferable (except as set forth in Section 16.4 and Schedule 16.5), non-sublicensable (except as permitted under Article 3), license to use the Licensed Marks:

(a)

in connection with the marketing, advertising, promotion, sale, manufacturing and distribution in the Territory of Licensed Products; provided, that (A) unless and until the Brand Principles are mutually agreed upon and made effective under this Agreement, any use of the Licensed Marks for Line Extensions that Licensee may develop after the Effective Date shall be subject to Licensor’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, and shall comply with the Xxxxxxxx Product Quality Assurance Requirements  and (B) once the Brand Principles are mutually agreed upon and made effective under this Agreement, any use of the Licensed Marks on any new products which are Line Extensions shall be subject to such products and such use being consistent with the Brand Principles and the Xxxxxxxx Product Quality Assurance Requirements; and in each case of (A) and (B), to the extent such products are marketed, advertised, promoted, sold, manufactured or distributed by or on behalf of Licensee during the Term; and

(b)

subject to Article 5 and Sections 2.1(a) and Section 10.3, in substantially the same manner (including color, printing style, typeface and size) in which, and in connection with products in the same Product Categories on which such Licensed Marks were used in the Business (as set forth on Exhibit B).

2.2.	Additional License Grants.

(a)

Subject to the terms and conditions of this Agreement, Licensor, on behalf of itself and its Affiliates, hereby grants to Licensee, during the Term, an exclusive (even as against Licensor and its Affiliates), royalty-free, fully paid-up, non-transferable (except as set forth in Section 16.4 and Schedule 16.5), non-sublicensable (except as permitted under Article 3), license to use the name “Xxxxxxxx”, solely in the corporate names set forth on Exhibit D in substantially the same manner in which such name was used in the Business.  Licensee shall be responsible for compliance with all applicable Laws in using such corporate names.

(b)

Subject to the terms and conditions of this Agreement, Licensor, on behalf of itself and its Affiliates, hereby grants to Licensee, during the Term, a non-exclusive, royalty-free, fully paid-up, non-transferable (except as set forth in Section 16.4 or Schedule 16.5), non-sublicensable (except as permitted under Article 3), license to use and reproduce, solely in connection with use of the Licensed Marks as permitted under this Agreement, in the Territory, original works of authorship and trade dress used by the Business as of the Effective Date that comprise labels, packaging and marketing materials for Licensed Products solely to the extent the foregoing are owned or controlled by Licensor or its Affiliates, are related to Licensee’s exercise of its license rights under this Agreement, and were not either (i) owned by any of the Transferred Companies as of the Effective Date or (ii) included in the Transferred IP; provided, however, that this grant shall not include a license to any Trademark (including any Brand Name) which is included in such original works of authorship or trade dress unless otherwise explicitly granted in this Agreement, and Licensor reserves all use rights outside the Territory.

2.3.

New Products.  Any use by Licensee of the Licensed Marks in connection with a product in a product category other than the exact Product Category to which such Licensed Marks were applied in the Business or otherwise in connection with any new products are neither Licensed Products nor Line Extensions of Licensed Products, and shall be subject to Licensor’s prior written consent, such consent to be given at Licensor’s sole discretion.

2.4.	Territory and Online Orders. As the licenses granted under Sections 2.1 and 2.2 are limited to the Territory, Licensee shall not use the Licensed Marks outside the Territory in any manner, including by:

(a)	actively advertising or promoting the Licensed Products outside the Territory;

(b)	actively seeking or accepting orders (including online orders) outside the Territory; or

(c)	establishing any branch dealing in, maintaining any distributor depot for the distribution of, or fulfilling or distributing any orders of Licensed Products outside the Territory;

provided, however, and subject to Article 3, that Licensee may use the Licensed Marks outside the Territory, solely to (i) manufacture or have manufactured Licensed Products for sale and distribution in the Territory, or (ii) advertise, promote and sell Licensed Products online and in social and mobile media directed only to customers and consumers located in the Territory.  Licensee shall include a disclaimer on any website or social or mobile media owned or controlled by Licensee on which the Licensed Products are advertised, promoted or sold, explicitly stating that the Licensed Marks are used under license from Licensor and that Licensed Products are available for sale by or on behalf of Licensee solely in the Territory.

2.5.

Restrictions on Use. Licensee covenants that it shall only use the Licensed Marks in accordance with this Agreement.  Except to the extent not in violation of the Brand Principles (once agreed upon and made effective under this Agreement) and the Xxxxxxxx Product Quality Assurance Requirements, Licensee shall not, without Licensor's prior written consent, attempt to or permit, authorize, enable or request any other Person to, in any jurisdiction throughout the world:

(a)

file, acquire, or otherwise obtain any registration for or application to register or to use any Trademark, company name, domain name, or social media account that is identical to, consists of, incorporates, is confusingly similar to or dilutive of, or is a confusingly similar variation or derivation, of any Licensed Xxxx (each, a “Variation”), whether with any Governmental Authority, Internet domain name registrar or otherwise, except as permitted in Section 10.1;

(b)	use any Variation confusingly similar to or dilutive of any Licensed Marks, except as permitted by Section 10.3;

(c)

use any Licensed Xxxx in combination with any other trademarks, names, symbols, words, devices or logos so as to form a composite trademark (each, a “Composite”), except for those Composites used by the Business on the Effective Date and for the twelve (12) month period immediately preceding the Effective Date (for clarity, use of descriptive or generic words or terms does not constitute a Composite herein);

(d)

use any Licensed Xxxx in any manner, or engage in any other act or omission, that would reasonably be expected to (i) tarnish, degrade, disparage, devalue, damage the goodwill of or reflect adversely on Licensor or its Affiliates, its or their businesses or reputations or any Licensed Marks; or (ii) invalidate or cause the cancellation or abandonment of any Licensed Marks; or

(e)	grant or attempt to grant a security interest in or lien on, record any security interest or lien against, or otherwise encumber, any Licensed Xxxx.

2.6.

Transfer of Rights.  If Licensee or its sublicensees has or acquires any rights in or to any Variations or Composites (whether standing alone or as incorporated in any modifications which may be made to any copyright work or trade dress licensed to Licensee pursuant to Section 2.2(b)), Licensee hereby irrevocably assigns, and shall cause its sublicensees to assign, all such rights to Licensor.  At the request of Licensor, Licensee shall execute any document, and perform any reasonable act, that Licensor deems necessary or desirable to obtain, evidence, effectuate, protect, enforce, or confirm Licensor’s or its designee’s exclusive ownership interest in and to the transferred Variations, Composites or other rights in each applicable jurisdiction, including executing and delivering applications, oaths, declarations, affidavits, waivers, assignments, and other documents.  Solely to further the purposes of this Section, and solely in the event that Licensee fails to comply, within thirty (30) days after notice from Licensor, with the obligations in the preceding sentence, Licensee hereby irrevocably designates Licensor as its agent and attorney-in-fact with full power of substitution to act on Licensee’s and its sublicensees’ behalf to execute and file any document on which Licensor cannot secure Licensee’s or its sublicensee’s signature and to perform any other lawful act of which Licensor cannot obtain Licensee’s or its sublicensee’s performance, with the same legal effect as if executed, filed, or performed by Licensee.

2.7.

Corporate Registries. Licensee has the right to be the registrant and contact party with all applicable agencies and registrars (other than the U.S. Patent and Trademark Office and applicable counterpart offices in foreign jurisdictions, for which Licensor shall have the sole right with respect to the Licensed Marks) as necessary to register all corporate, trade, d/b/a and other business or company names, domain names, social and mobile media identifiers to the extent incorporating Licensed Marks licensed herein, in all cases without the prior consent of Licensor and solely to the extent not in violation of the Brand Principles and the Xxxxxxxx Product Quality Assurance Requirements, or this Agreement; provided, that upon termination of this Agreement, Section 14.1(d) shall apply and Licensee shall, if requested by Licensor, take appropriate actions to transfer such registrations (including all domain name registrations) to Licensor.

2.8.

Cooperation.  The Parties will reasonably cooperate with respect to Licensee’s use of the Licensed Marks in the Territory (and Licensor’s use of the equivalent of the Licensed Marks outside the Territory), on the Internet and in social and mobile media, so as to maximize the global marketing and promotion of such brands.

3.	SUBLICENSING

3.1.

Licensee may not sublicense its rights under this Agreement to any other Person without the prior written consent of Licensor, except that Licensee may sublicense the license rights granted to it under Article 2 without Licensor’s prior written consent to: (i) its Affiliates that are Controlled by Licensee (but which shall in no case include any Prohibited Persons or be subject to Part 2 of Schedule 16.5), (ii) those manufacturers set forth on Exhibit E who are engaged at such time to manufacture the Licensed Products on Licensee’s behalf, and (iii) those distributors set forth on Exhibit E who are engaged at such time to distribute the Licensed Products on Licensee’s behalf, in each case of the foregoing (ii) and (iii), to the extent Licensee and such manufacturers or distributors, as applicable, are parties to a Contract which includes substantially the same terms (other than pricing terms) that exist in those Contracts between the Transferred Companies and such third party manufacturers or distributors, as applicable, in existence as of the Effective Date.  Any new third party manufacturers or distributors not otherwise provided for under this Section 3.1 may be added to Exhibit E if they (x) are approved in advance by Licensor, such approval not to be unreasonably withheld, conditioned or delayed, or (y) subject in all respects to compliance with this Section 3, are of the same quality, reputation and solvency in all material respects as the manufacturers or distributors already set forth on Exhibit E.  Notwithstanding the foregoing, Licensee may not provide Licensed Products to any distributors known by Licensee to (i) intentionally redistribute, or (ii) repeatedly redistribute, such Licensed Products outside the Territory and to the extent that Licensee becomes aware that any distributors are distributing Licensed Products outside the Territory, Licensee shall promptly notify Licensor and, if applicable, stop selling Licensed Products to any such distributors.  Notwithstanding anything else in this Agreement, Licensee shall not sublicense its rights under this Agreement to any Prohibited Person and shall not attempt any sublicense subject to Part 2 of Schedule 16.5, and any attempted sublicense to a Prohibited Person or sublicense subject to Part 2 of Schedule 16.5 shall be deemed null and void.

3.2.

Any sublicense granted pursuant to Section 3.1 shall (a) be in writing and include substantially the same terms and restrictions as set forth in this Agreement (except that the sublicensee shall not have the right to further sublicense its rights under the sublicense to any third party) and (b) automatically terminate upon expiration or termination of this Agreement.  Licensee shall be liable for all acts and omissions of its sublicensees, provided that no act or omission of a sublicensee can be grounds for termination or suspension in Sections 13.2, 13.3, or 13.4 if Licensee (i) causes such sublicensee to immediately cease such conduct or (ii) promptly terminates the applicable sublicensee, but in which case Licensee shall otherwise nonetheless remain liable for damages to Licensor for the relevant act or omission of the sublicensee resulting in Licensee taking the foregoing actions. Licensee shall monitor compliance of its sublicensees with the terms of their sublicenses and enforce compliance of such sublicensees with the terms of their sublicenses.

4.	RECORDATION; RESERVATION OF RIGHTS; LICENSE LIMITATIONS

4.1.	As between Licensor and Licensee, and if deemed necessary in Licensee’s reasonable discretion, Licensee may and shall be responsible for recording this Agreement with any applicable Governmental Authority and for all associated recordation fees and related costs and expenses.

4.2.

Licensee hereby acknowledges and agrees, on behalf of itself and its Affiliates, that it has no right, title or interest, express or implied, in or to the Licensed Marks, or in any copyright work or trade dress as referred to in Section 2.2(b), except as specifically provided herein and subject to the terms and conditions stated in this Agreement.  All of the rights granted hereunder are explicitly stated herein and nothing in this Agreement shall be construed to transfer any proprietary ownership interest whatsoever in or to any intellectual property rights or rights in the nature of trade dress of Licensor or its Affiliates, or to grant any implied rights whatsoever or any right, title or interest in or to any of the Licensed Marks or any other intellectual property rights or rights in the nature of trade dress of Licensor or its Affiliates, except the rights explicitly granted pursuant to this Agreement.  Licensee acknowledges and agrees that any and all uses by Licensee and its sublicensees of the Licensed Marks and any resulting goodwill thereof shall inure to the benefit of Licensor and its Affiliates, as applicable.  Licensee acknowledges and agrees that it is only receiving a license to use the Licensed Marks.

4.3.	The Parties shall consult with one another in good faith to resolve any disputes arising out of their respective uses of the Licensed Marks where customers, consumers or other third parties may misdirect communications.

5.	LICENSED XXXX QUALITY CONTROL

5.1.

Licensee shall ensure that all use of the Licensed Marks on goods, packaging and advertising materials shall be consistent with use of the Licensed Marks in the Business as of the Effective Date, and comply with the Brand Principles and the Xxxxxxxx Product Quality Assurance Requirements or are otherwise approved by Licensor pursuant to Section 2.1(a)(ii) or Section 2.3, and include a statement that the Licensed Marks are owned by Licensor and used under license and that the Licensed Products are manufactured by Licensee; provided that this obligation shall not apply in respect of any goods, packaging or advertising materials in existence as of the Effective Date or created within six (6) months after the Effective Date to the extent not reasonably practicable.

5.2.

Licensee shall submit to Licensor, free of charge, for Licensor’s written approval, six (6) samples of full artwork of any new promotional packaging and materials created after the Effective Date on which any of the Licensed Marks are to be used, except to the extent the foregoing are compliant with the Brand Principles and the Xxxxxxxx Product Quality Assurance Requirements.  No use of any such promotional packaging and materials submitted to Licensor will be made by, or on behalf of, Licensee prior to Licensee’s receipt of final written approval from Licensor, such approval not to be unreasonably withheld, conditioned or delayed; and provided that any promotional merchandise bearing the Licensed Marks (i.e. use of the Licensed Marks on t-shirts, mugs, etc. for promotional purposes) shall be limited solely to use in connection with promotion of the Licensed Products. Notwithstanding the foregoing, for marketing campaigns conducted via social media that are not compliant with the Brand Principles and the Xxxxxxxx Product Quality Assurance Requirements, the Parties shall work together in good faith to establish parameters in advance of any such marketing campaign so that approval is not required for every item of marketing material (e.g., online post or message) used in the campaign.

5.3.

From time to time but at least once each fiscal year, or upon Licensor’s reasonable request, Licensee shall submit to Licensor, free of charge, one (1) representative sample of each of the then-current Licensed Products and promotional packaging and materials bearing the Licensed Marks to allow Licensor to confirm that Licensee and its sublicensees are in compliance with the terms of this Agreement.

5.4.

Licensor shall, on reasonable prior notice to Licensee, have the right for itself (or its nominated independent representative) to enter Licensee’s premises during regular business hours to confirm that Licensee, as applicable, is complying with its obligations under this Agreement.  Licensor may exercise this right once each year or more frequently if there is reasonable cause for doing so. Licensor shall use its best efforts to minimize any disruption to the business of Licensee in connection with any such inspection(s).  Each Party will bear its own costs relating to an inspection carried out pursuant to this clause unless the inspection reveals any non-compliance by Licensee with the terms of this agreement.  If the inspection does reveal any material non-compliance, the Licensee must reimburse Licensor for all out of pocket costs and expenses of Licensor in respect of the inspection. Licensee shall use commercially reasonable efforts to include the foregoing right of Licensor in its Contracts with sublicensees such that Licensor shall have the same rights with respect to any sublicensees; provided that, if after exercising such efforts, Licensee is unable to secure such right from the applicable sublicensee, Licensee may enter into such Contract and shall require the sublicensee to be bound by the provisions of this Section 5.4, except with Licensee (as opposed to Licensor) having the right to exercise the compliance rights on behalf of Licensor.

6.	LICENSED PRODUCT QUALITY ASSURANCE

6.1.

Licensee shall comply with (i) the Xxxxxxxx Product Quality Assurance Requirements (A) on Exhibit A as of the Effective Date, in each case, to the extent they are consistent with the ordinary course of the Business in the twelve (12) months prior to the Effective Date; and (B) as may be amended from time to time, effective within a reasonable time after notice from Licensor, provided that any such amendments do not create obligations that are more onerous than those in the foregoing clause (A) in any material respect or that Licensor does not impose on itself and its other Affiliates and (ii) any and all product quality assurance requirements under applicable Law.

7.	CUSTOMER AND CONSUMER COMPLAINTS

7.1.

In addition to the requirements of Exhibit A and Article 8, during the Term, Licensee shall promptly provide copies of any (A) material complaints received either in writing or otherwise through Licensee’s established customer and consumer complaint process in existence at such time, from (i) retail, grocery, or other commercial customers or (ii) consumers (including such material complaints submitted electronically), or (B) notices from any regulatory body, which allege any actual or potential problem related to the Licensed Products and shall otherwise, if requested by Licensor, provide Licensor with a written report of all such complaints or notices received by Licensee on a semi-annual basis.

7.2.

The Parties shall cooperate in good faith in order to decide how to resolve complaints in Section 7.1 that Licensee cannot successfully resolve independently, or how to respond to any notices from regulatory bodies, in each case, that relate to the Licensed Products in the Territory.  If the Parties cannot agree on how to resolve any such complaints or notices, Licensee shall have sole discretion, acting reasonably, to determine how to resolve such complaints or such notices, provided that if such complaint or notice relates to a matter that is reasonably likely to result in material harm to the reputation and/or goodwill of Licensor (or its Affiliates) or the Licensed Marks or impose material liability upon Licensor or its Affiliates, then Licensee must obtain Licensor’s consent, not to be unreasonably withheld, before taking actions to resolve such matter.

7.3.	Each Party shall provide any assistance to the other that is reasonably required to deal with such customer complaints or notices from regulatory bodies in Section 7.1 including:

(a)	providing further information to the other that may be relevant to such complaint or notice;

(b)	permitting Licensor to access Licensee’s (or, subject to Section 5.4, its sublicensees’) premises and audit its activities (and, subject to Section 5.4, those of its sublicensees) where the complaint or notice relates to food safety issues; and

(c)	consulting with each other prior to and about any product retrieval or recall of Licensed Products that may be advisable and that arises from such complaint or notice.

8.	NOTIFICATION

8.1.

In addition to the requirements of Exhibit A and Article 7, Licensee agrees to notify Licensor immediately upon becoming aware of any actual or impending event or circumstance which might materially adversely affect the safety, health or quality of the Licensed Products or the goodwill and reputation of the same in the market.  Such events and circumstances shall include without limitation the following:

(a)	any communication alleging the Licensed Products are affected by a safety or health issue; and/or

(b)

any legal proceeding, formal action by any enforcement body in pursuance of its statutory or regulatory powers or responsibilities or material complaint against Licensee arising out of or in connection with the manufacture, distribution, sale, use or consumption of the Licensed Products or their packaging, whether or not alleging any product liabilities, negligence or breach of contract or any actual occurrence of the same; and/or

(c)	any writings addressed to Licensee or any of its Affiliates by a third party threatening in any way to adulterate any of the Licensed Products or their packaging or any actual occurrence of the same.

8.2.	Licensee shall take such reasonable steps as are reasonable in the circumstances to remedy the material adverse effect of any event or circumstance which might adversely affect the quality of any Licensed Products or the goodwill and reputation of the same in the market.

9.	INFRINGEMENT

9.1.

Licensee shall immediately notify Licensor in writing of any of the following matters which come to its attention (giving full particulars), to the extent relating to the Territory: (a) any actual, suspected or threatened infringement of the Licensed Marks, (b) any allegation or complaint made by any Person that any of the Licensed Marks is invalid, that use of the Licensed Marks infringes any third party rights, or that use of the Licensed Marks may cause deception or confusion to the public or constitute an act of unfair competition. Licensor shall immediately notify License in writing of any of the following matters which come to its attention (giving full particulars), to the extent relating to the Territory: (a) any actual, suspected or threatened  infringement of the Licensed Marks, (b) any allegation or complaint made by any third party that any of the Licensed Marks is invalid, that use of the Licensed Marks infringes any third party rights, or that use of the Licensed Marks may cause deception or confusion to the public or constitute an act of unfair competition.

9.2.

Licensor has the first right, but not the obligation, to take action (or threaten to take action) against other Persons in the courts, administrative agencies or otherwise (including per cease and desist letter or similar requests), at Licensor’s cost and expense, to (a) prevent or terminate infringement, unauthorized use of, dilution, or other violation of the Licensed Marks, (b) oppose or cancel applications or registrations for any trademarks that are confusingly similar to any Licensed Marks, or (c) otherwise enforce or defend the Licensed Marks (each, an “Action”).  If Licensee requests in writing that Licensor initiate an Action, Licensor shall, within thirty (30) days of receiving such request (or sooner if reasonably justified under the circumstances) initiate the requested Action.  If Licensor does not initiate an Action within thirty (30) days (or any shorter period that must be met under local laws or regulations in order to obtain a preliminary injunction or to initiate any similar summary proceedings or is otherwise reasonably justified under the circumstances), Licensee may initiate and maintain the Action at its own expense; provided that Licensee shall keep Licensor full informed of such Action and make available to Licensor copies of any relevant documents or correspondence relating to such Action, subject to attorney-client privilege, and consider in good faith any comments provided by Licensor.

9.3.

At the request of either Party initiating an Action (the “Enforcing Party”), the other Party shall cooperate with the Enforcing Party, at the Enforcing Party’s expense, in that Action (including by executing, filing and delivering all documents and evidence requested by the Enforcing Party) and shall lend its name to that Action if requested by the Enforcing Party or required by applicable Law.  No Party shall assert or maintain any claim against the Enforcing Party based on or arising out of the Enforcing Party’s handling of or decisions concerning any Action or any settlement or compromise thereof, unless any such actions breach this Agreement.  Licensor (solely to the extent relating to the Territory) and Licensee may not enter into any settlement or compromise of any Action that subjects the other Party to liability, or otherwise prejudices or impairs the rights of the other Party in and to any Licensed Marks, without the other Party’s prior written consent, which may be withheld, conditioned or delayed, at its sole discretion.  All damages or other compensation of any kind recovered in any Action or from any settlement or compromise thereof, are for the sole benefit of the Enforcing Party, except that if the Enforcing Party withdraws from an Action and the other Party continues to maintain the Action, the withdrawing Party’s costs and expenses incurred in connection with the Action will be reimbursed based on the proportion of the withdrawing Party’s costs and expenses to the total costs and expenses incurred by the Parties in connection with the entire Action.  If the Parties agree to participate in any Action jointly, they shall agree in writing on all matters related to such Action.

10.	MAINTENANCE/ REGISTRATION

10.1.

Without limiting Section 2.7, as between Licensor and Licensee, Licensor has the first right (but not the obligation), at its own cost and expense, to apply for, prosecute, maintain and renew applications and registrations for the Licensed Marks (“Maintenance”).  At Licensor’s request and expense, Licensee shall cooperate and provide reasonable assistance to Licensor in connection with Maintenance, including (a) supplying reasonable specimens and other samples of Licensee’s use of the Licensed Marks, and (b) executing documents and performing lawful acts as reasonably requested by Licensor.  If Licensor cannot secure Licensee’s signature on any document  that Licensor requires under this Section 10.1 within thirty (30) days after notice from Licensor, Licensee hereby designates Licensor as its agent and attorney-in-fact with full power of substitution to act on Licensee’s behalf to execute and file that document, with the same legal effect as if executed, filed or performed by Licensee. If Licensor wishes to abandon a Licensed Xxxx (for reasons other than final refusal by the trademark office), Licensor shall notify Licensee in due advance, and Licensee may within sixty (60) days after receipt of such notice (or earlier, if justified under the circumstances) require that the relevant Licensed Xxxx be transferred to Licensee at Licensee’s expense. If Licensee requests in writing that Licensor take any action with regard to Maintenance, Licensor shall, within thirty (30) days of receiving such request (or sooner if reasonably necessary under the circumstances) initiate the requested action.  If Licensor does not initiate such action within such thirty (30) days (or any shorter period otherwise reasonably justified under the circumstances), Licensee may take such Maintenance actions on behalf and in the name of Licensor, at Licensee’s own expense; provided that Licensee shall keep Licensor full informed of such action and make available to Licensor copies of any relevant documents or correspondence relating to such action, subject to attorney-client privilege, and consider in good faith any comments provided by Licensor.

10.2.

Subject to Section 2.5, Licensee agrees that as of the Effective Date, it intends to use the Licensed Marks during the Term in the Territory with respect to the Licensed Products in a manner that preserves their validity and is consistent with the Brand Principles and the Xxxxxxxx Product Quality Assurance Requirements.  If, during the Term, Licensee decides to permanently cease use of any Licensed Xxxx in any country in the Territory in which the Business had been using such Licensed Xxxx, Licensee shall provide Licensor with prompt written notice thereof.

10.3.

If Licensee wishes to adopt or use a new Variation or Trademark (or Licensed Marks in new countries or jurisdictions in the Territory in which Licensor did not own an application or registration as of the Effective Date) as a Licensed Xxxx in the Territory:

(a)

Licensee shall request Licensor’s consent in advance in writing. Licensor’s consent may not be withheld if any such new Variation does not violate the Brand Principles and the Xxxxxxxx Product Quality Assurance Requirements (and provided such use does not otherwise require consent of Licensor pursuant to Section 2.1 or Section 2.3, unless such consent has been obtained) and would not reasonably be expected to (i) infringe or violate the law or rights of any third party, (ii) harm or jeopardize the value, validity, reputation or goodwill of the Licensed Marks in any country, jurisdiction or territory, (iii) harm or jeopardize Licensor’s ownership of or rights in the Licensed Marks; or (iv) harm or jeopardize Licensor’s goodwill or reputation.

(b)

If Licensee wishes to adopt a new Variation or use any Licensed Xxxx (i) in any country or jurisdiction within the Territory in which Licensor did not own a registration as of the Effective Date, or (ii) as or in a new Trademark (e.g. a new domain name or corporate name), Licensee shall request Licensor’s consent in advance in writing. Licensor must consent if use of such Licensed Xxxx complies with the criteria in Section 10.3(a) above (subject to compliance in all respects with the Brand Requirements and provided such action does not otherwise require consent of Licensor pursuant to Section 2.1 or Section 2.3, unless such consent has been obtained).

(c)

Licensor must approve or reject any request by Licensor under clause (a) or (b) within thirty (30) days.  If Licensor does not so respond, Licensee shall resubmit such request, and (i) provide a copy of same to an additional notice party or parties designated by Licensor for such purposes and (ii) indicate prominently on the front of such request the legend “SECOND REQUEST” or similar words.  If Licensor does not respond to such second request within thirty (30) days after such second submission (or a reasonable extension of time requested by Licensor in writing in appropriate circumstances), Licensee‘s request shall be deemed approved. If Licensor does not consent, it shall provide Licensee with its reasons in sufficient detail so as to allow Licensee to resubmit its request (to the extent the reason for not consenting is capable of being remedied, in Licensor’s reasonable discretion), which shall be subject to the same timetable.

(d)	Any Variation or Trademark approved by Licensor in this Section 10.3 shall be included as a Licensed Xxxx hereunder.

(e)

Upon termination of this Agreement, Section 14.1(d) shall apply and Licensee shall, if requested by Licensor, take appropriate actions to transfer any registrations or applications for registration for any new Variations or Trademarks applied for or registered pursuant to this Section 10.3 to Licensor.

11.	INDEMNIFICATION

11.1.

Licensee shall indemnify, defend and hold harmless to the fullest extent permitted under Law, Licensor, its Affiliates, and its and their respective officers, directors, members, managers, partners, employees, and agents from and against any and all damages, liabilities, losses, obligations, settlements, claims of any kind, interest and expenses (including reasonable fees and expenses of attorneys) (collectively, “Losses”) arising from or relating to any third party claims involving: (a) Licensee or its sublicensees’ sale of the Licensed Products (and any third party claims of products liability or breach of representations or warranties made by Licensee or its sublicensees to its or their customers or otherwise, except for Losses related to claims for which Licensor is obligated to indemnify Licensee pursuant to Section 11.2 or to the extent resulting from any components of Licensed Products provided by or on behalf of Licensor, (b) breach by Licensee of its obligations under this Agreement, including any unauthorized use by Licensee of the Licensed Marks, or any other use of the Licensed Marks by Licensee to the extent inconsistent with Licensor‘s use of the Licensed Marks prior to the Effective Date (or any act or omission of any sublicensees which would amount to a breach of this Agreement if it had been an act or omission of Licensee), (c) Licensee’s or its sublicensees’ failure to comply with all Laws applicable to Licensee’s marketing, advertising, promotion, sale, manufacturing and distribution of the Licensed Products in the Territory, or (d) any fraud, gross negligence or willful misconduct by Licensee in connection with its performance under this Agreement.

11.2.

Licensor shall indemnify, defend and hold harmless to the fullest extent permitted under Law, Licensee, its Affiliates, and its and their respective officers, directors, members, managers, partners, employees, and agents from and against any and all Losses arising from or relating to any third party claims involving: (a) breach by Licensor of its obligations under this Agreement, or (b) any fraud, gross negligence or willful misconduct by Licensor in connection with its performance under this Agreement.

11.3.

In the event that a Party wishes to make an indemnification claim against the other Party hereto, in each case whether for itself and/or as agent for the relevant Affiliate(s), such Party shall give written notice to the indemnifying Party containing reasonably specific details of the indemnification claim; provided that a Party’s failure to promptly notify the indemnifying Party will not affect the indemnifying Party’s indemnification obligations except to the extent that any such delay prejudices the indemnifying Party’s ability to defend such claim.  The indemnifying Party will defend any claim with counsel of its own choosing, settle it as the indemnifying Party deems appropriate; provided further, that the indemnifying Party will not enter into any settlement without the indemnified Party’s prior written consent. At the expense of the indemnifying Party, the indemnified Party will reasonably cooperate with the indemnifying Party in the defense and settlement or compromise of any indemnified claim.  Neither Party will enter into any settlement or compromise that subjects the indemnified Party to liability or xxxxx its rights in the Licensed Marks, without its prior written consent. At its discretion and expense, the indemnified Party may participate in the defense, any appeals and settlement with counsel of its own choosing, and such counsel shall have full access to all information, documents and other materials related to the claim.  For purposes of this Section 11.3, “Affiliates” of Licensor shall include their respective officers, directors, members, managers, partners, employees, and agents entitled to indemnification pursuant to Section 11.1.

12.	LIMITATION OF LIABILITY

12.1.

EXCEPT WITH RESPECT TO LOSSES ARISING FROM OR RELATED TO A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 15 OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.1 OR SECTION 11.2, IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY LOSSES ARISING FROM OR RELATED TO THIS AGREEMENT THAT ARE IN THE NATURE OF LOST PROFITS OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INCIDENTAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.	TERM, TERMINATION AND SUSPENSION

13.1.

Unless sooner terminated by the mutual agreement of the Parties or pursuant to any provision of this Article 13, the term of this Agreement shall commence on the Effective Date and shall remain in full force and effect for a term of fifteen (15) years thereafter (the “Term”); provided, that at least one (1) year prior to the end of the Term, the Parties shall meet (in person or telephonically) to engage in good faith regarding the renewal or the extension of the Term for a period of ten (10) years upon the request of Licensee. Licensor shall not unreasonably withhold its consent to any such renewal or extension of the Term negotiated by Licensee.

13.2.

Licensor may terminate this Agreement:

(a)	in whole or in part, by written notice to Licensee with immediate effect, if Licensee (or any of its sublicensees, unless Licensee takes one of the actions in Section 3.2(i) and (ii)) deliberately challenges the validity or ownership of any of the Licensed Marks;

(b)

in whole or in part, by written notice to Licensee with immediate effect, if Licensee (i) is acquired by or undergoes a change of control which, in each case, is subject to Part 2 of Schedule 16.5, or (ii) divests its right to sell any Licensed Product or one or more businesses selling the Licensed Products and, in each case of clause (i) or (ii), assigns its rights in this Agreement with respect to such right to sell Licensed Products or businesses selling the Licensed Products in an assignment which is subject to Part 2 of Schedule 16.5; in each case, except if Licensee has complied with Section 16.5 as may be applicable;

(c)

in whole or in part, by written notice to Licensee with immediate effect, if Licensee (x) is acquired by or undergoes a change of control to, or (y) divests its right to sell one or more of the businesses selling Licensed Products and, in each case of clause (x) or (y), assigns its rights in this Agreement with respect to such businesses selling any Licensed Product to any Person (i) that has been subjected to material criminal penalties based on fraud within the prior ten (10) year period thereof, or (ii) whose association with the “Xxxxxxxx” brand (or with Licensor or its Affiliates) would be reasonably expected to have a material and adverse impact on the reputation of the “Xxxxxxxx” brand or Licensor or its Affiliates because such Person is (A) listed in any economic or financial sanctions or trade embargo (collectively, “Sanctions”) related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (B) operating, organized, or resident in a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria), or (C) owned or controlled by any such Person or Persons described in the foregoing clauses (i) and (ii) (any such Person, a “Prohibited Person”);

(d)

in whole or in part, by written notice to Licensee with immediate effect, if Licensee (i) ceases to carry on its business or substantially the whole of its business or (ii) makes any arrangement or assignment for the benefit of its creditors generally or is deemed to be unable to pay its debts and does not cure same within thirty (30) days; or

(e)	in part with respect to any Licensed Xxxx in any country in the Territory if Licensee permanently abandons or permanently ceases to use such Licensed Xxxx in such country.

13.3.

Either Party may terminate this Agreement:

(a)

in whole or in part, if the other Party is in material breach of any provision of this Agreement (or, in the case of Licensee, would be in material breach of this Agreement if an act or omission of a sublicensee had been made by Licensee and Licensee does not take one of the actions in Section 3.2(i) or (ii)) and such breach: (i) in the case of a breach by Licensee, causes material adverse harm to the reputation or goodwill of Licensor and/or the Licensed Marks; or (ii) in the case of a breach by Licensor, causes material adverse harm to the business operated under the Licensed Marks; and in each case, is not capable of being cured; or

(b)

in whole, by written notice to the other Party with immediate effect, upon the commencement by or against the other Party of a voluntary or involuntary proceeding under any bankruptcy, insolvency, liquidation or similar proceeding, or upon the appointment with respect to either Party of a successor, trustee, sequestrate, administrator, liquidator, receiver or similar officer, in each case, if such proceeding or appointment is not terminated within thirty (30) days.

13.4.

Licensor shall be entitled, at its sole discretion, to suspend Buyer's rights under this Agreement with respect to any affected Licensed Marks in the affected jurisdiction if Buyer is in material breach of any provision of this agreement (or would be in material breach of this agreement if an act or omission of a sublicensee had been made by Licensee and Licensee does not take one of the actions in Section 3.2(i) or (ii)) and such breach, if capable of being cured, is not cured within sixty (60) days following receipt of written notice from Licensor describing the applicable breach. If suspended, Licensor shall end the above suspension after such cure is effective.

14.	EFFECT OF TERMINATION

14.1.

Upon the termination of this Agreement:

(a)	All rights of Licensee and its sublicensees in respect of the Licensed Marks and of the copyright works referred to in Section 2.2(b) shall immediately terminate and Licensee shall cease all use of the Licensed Marks and such copyright works in the Territory;

(b)	Licensee shall cease all use of any trade dress bearing the Licensed Marks that is used by the Business for the Licensed Products together with any trade dress which consists of modifications thereto;

(c)

Licensee shall promptly delete, remove or cover the Licensed Marks from or (where such deletion or removal is not reasonably practicable) destroy all goods (including Licensed Products), stationery, advertising material and all other materials or documents (other than internal business or legal records) in the possession or under the control of Licensee onto which the Licensed Marks are incorporated and ensure that its sublicensees do the same, provided, however, that, except in connection with termination of this Agreement by Licensor pursuant to Sections 13.2(a), 13.2(b), or 13.2(c), or Section 13.3(a)(i),  Licensee and its sublicensees may continue to sell-off any inventory of goods (including Licensed Products) and packaging materials existing as of the effective date of termination which display the Licensed Marks, for a period of six (6) months after the effective date of termination of this Agreement;

(d)

Licensee shall promptly make all necessary filings with any and all offices, agencies, registrars and bodies and take all other actions necessary to adopt new corporate names, domain names, social and mobile media identifiers, registered names, and registered fictitious names that do not consist in whole or in part of, and are not dilutive of or confusingly similar to, the “Xxxxxxxx” name and shall provide Licensor with written proof that such name changes have been effected as soon as reasonably practicable but in any event, shall make such filings no later than sixty (60) days after the effective expiration or termination of this Agreement; and

(e)	Licensee shall provide all reasonable assistance, including by the execution of documents, to remove or cancel any recordations of Licensee’s interest in the Licensed Marks under Section 4.1.

14.2.

Termination of this Agreement shall not affect the rights and obligations of either Party that may have accrued prior to the effective date of termination or expiration or any obligation that by its nature survives termination or expiration.  Without limiting the foregoing, the following provisions of this Agreement shall survive the termination or expiration of this Agreement: Article 1, Section 2.5, Section 2.6, Section 4.2, Section 9.4 (with regard to claims arising before termination), Article 11, Article 12, Article 14, Article 15, and Article 16 (other than Section 16.4) and Section 3.7 of Exhibit A, subject to Section 6.1.

14.3.

Either Party may (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties of the other Party contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements or conditions of the other Party contained in this Agreement but such waiver of compliance with such agreements or conditions shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.  Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party granting such extension or waiver.  Neither the waiver by either Party of a breach of or a default under any of the provisions of this Agreement, nor the failure by a Party, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.

15.	CONFIDENTIALITY

15.1.

The Parties acknowledge that, by reason of their relationship, they may have access to certain information and materials concerning the other Party and its Affiliates and its and their businesses and products which is confidential and which value would be impaired if such information were disclosed to third parties (“Confidential Information”). Each Party agrees that it shall not, and shall cause its Affiliates not to, use in any way other than to perform hereunder, whether for their own account or the account of any third party, or disclose to any person (other than their employees and counsel, or, subject to reasonable confidentiality arrangements, their contractors providing services in connection with this Agreement, in each case, on a need-to-know basis), any such Confidential Information without prior written authorization from the other Party, except as otherwise required by Law, a court of competent jurisdiction, or the rules of a national securities exchange (or as necessary for a Party to enforce its rights in this Agreement) and then only after notifying the other Party, to the extent reasonably practicable or permissible, in advance, and the Party required to make such disclosure will reasonably cooperate with any attempts by the other Party to protect the Confidential Information during such process. Each Party will take reasonable precautions to protect the confidentiality of such Confidential Information consistent with the efforts exercised by it with respect to its own Confidential Information, using at least a reasonable standard of care.  The Parties shall cooperate to comply with all applicable Laws in connection with any disclosure or transfer of information herein. Notwithstanding anything to the contrary set forth herein, a Party who receives Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”) shall not be required to hold in confidence information that (a) is or becomes generally available to the public other than as a result of a breach of these provisions by the Receiving Party, (b) becomes available to the Receiving Party after the Effective Date on a non-confidential basis from a source other than the Disclosing Party, provided that the source of such information was not bound by a confidentiality agreement with, or bound by any other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such information or (c) is independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party. This provision shall survive the termination or expiration of this Agreement.

16.	MISCELLANEOUS

16.1.

Notices.  All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile with receipt confirmed (followed by delivery of an original via overnight courier service), by registered or certified mail (postage prepaid, return receipt requested), or by e-mail to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 16.1):

if to Licensor:
Xxxxxxxx Soup Company
Xxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention:  General Counsel


with a copy (which shall not constitute notice) to:


Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:  Xxxxxxx X. Xxxxxx; Xxxxxx X. Xxxxx; Xxxxx Xxxxxxx
Facsimile:  (000) 000 0000
E-mail: xxxxxxx.xxxxxx@xxxx.xxx; xxxxxx.xxxxx@xxxx.xxx; xxxxx.xxxxxxx@xxxx.xxx

if to Licensee:


[●]

with a copy (which shall not constitute notice) to:


Xxxxxxx Xxxxxxx & Xxxxxxxx LLP

000 Xxxxxxxxx Xxxxxx

Xxx Xxxx, XX 00000

Attention:  Xxxxxxx Xxxx Xxxxx; Xxx X. Xx
Facsimile:  (000) 000-0000
Email: xxxxxx@xxxxxx.xxx; xxx@xxxxxx.xxx

Allens

Xxxxx 00, Xxxxxxxx Bank Place

000 Xxxxxxx Xxxxxx

Xxxxxx, Xxx Xxxxx Xxxxx

Xxxxxxxxx

Attention:  Xxxx Xxxxxxxxxx; Xxx Xxxxx

Facsimile:  x00 0 0000 0000
Email: Xxx.Xxxxx@xxxxxx.xxx.xx; Xxxx.Xxxxxxxxxx@xxxxxx.xxx.xx

16.2.

Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any applicable Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to either Party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.

16.3.

Entire Agreement.  This Agreement and the other Transaction Agreements constitute the entire agreement of Licensor, on the one hand, and Licensee, on the other hand, with respect to the subject matter of this Agreement and supersede all prior representations, agreements, undertakings and understandings, both written and oral, other than the Confidentiality Agreement to the extent not in conflict with this Agreement, between or on behalf of the Seller Parties, on the one hand, and Buyer, on the other hand, with respect to the subject matter of the Transaction Agreements.

16.4.

Assignment and Change of Control.

(a)

Licensee may not assign this Agreement or any of its obligations or rights (including the licenses granted to Licensee) hereunder, in whole or in part, directly or indirectly (including by merger, acquisition, operation of law, or other change of control) without the prior written consent of Licensor (in Licensor’s sole discretion), except (i) to an Affiliate or to a successor pursuant to a statutory merger or internal reorganization, except to the extent subject to Part 2 of Schedule 16.5, in which case Schedule 16.5 shall apply, or (ii) to one or more third parties in compliance with Schedule 16.5 as may be applicable.  Except to the extent permitted and consummated pursuant to Section 16.5, any change of control of Licensee shall be deemed an “assignment” for purposes of this Section 16.4. Any attempted assignment or transaction in violation of this Section 16.4 shall be void.

(b)

Licensor shall be entitled to assign or transfer any rights or obligations under this Agreement without Licensee’s prior written consent and may assign or transfer any rights in or to any portion or all of the Licensed Marks; provided that, in each case, (i) such assignee or transferee of this Agreement must assume in writing all of Licensor’s assigned or transferred rights or obligations herein; (ii) Licensee shall always receive its licenses herein from the owner of the Licensed Marks and not from any intermediate entity or sublicensor; and (iii) any assignee or transferee of this Agreement and/or the Licensed Marks (A) has sufficient financial resources and ability to perform hereunder and (B) is not a Prohibited Person.  Licensor may not subject the Licensed Marks to any liens or encumbrances, unless liens or encumbrances are also granted on a material portion of Licensor’s other assets as part of the same debt financing.  Any assignment or transfer not in compliance with the foregoing proviso requires the prior written consent of Licensee in its sole discretion. This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the Parties and their permitted successors and assigns.

16.5.

[Reserved].

16.6.

No Third-Party Beneficiaries.  Except as provided in Article 11, this Agreement is for the sole benefit of the Parties and their permitted successors and assigns, no Party is acting as an agent for any other Person not named herein as a Party, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person, the Transferred Companies, any of their Affiliates or the respective businesses of the Transferred Companies, any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.

16.7.

Amendment.  Except as expressly provided in this Agreement, no provision of this Agreement, including any Exhibits or Schedules hereto may be amended, supplemented or modified except by a written instrument making specific reference hereto or thereto signed by each Party.

16.8.

Governing Law; Submission to Jurisdiction; Dispute Resolution.

(a)

This Agreement and all claims or causes of action (whether in contract or in tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts made and performed in such State without giving regard to any conflict of laws provisions that would require or permit the application of the Laws of any other jurisdiction.

(b)

Subject to Section 16.8(d) and the last two (2) sentences of this Section 16.7(b), the Parties irrevocably submit to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or in the event, but only in the event, that such court does not have subject matter jurisdiction over such action or proceeding, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware) over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or proceeding related thereto may be heard and determined in such courts.  The Parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute.  Each Party agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law and each Party submits to jurisdiction in such jurisdiction, as required for enforcement purposes.  If any jurisdiction in the Territory requires submission to jurisdiction in such country in order to enforce or defend any of the Licensed Marks registered or applied for in such jurisdiction, the Parties hereby consent to such jurisdiction with respect to such matters.

(c)	Each Party hereby consents to process being served by the other Party to this Agreement in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 16.1.

(d)

In case of any dispute arising out of or connected with this Agreement, a Party shall first notify the other Party in writing of the relevant dispute and, in such notice, invite the other Party to commence settlement negotiations. The Parties shall thereupon attempt in good faith to settle such dispute, through discussions between their respective Chief Executive Officers (or their designees), for a period of thirty (30) days after such notice is received.  If the matter is not resolved within such period, either Party may initiate an Action in accordance with this Section 16.8.

16.9.

Specific Performance.  Each Party acknowledges and agrees that irreparable damage would occur, damages would be difficult to determine and would be an insufficient remedy and no adequate remedy other than specific performance would exist at law or in equity in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached (or either Party threatens such a breach).  Therefore, it is agreed that each Party shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof.  Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which either Party may have under this Agreement or otherwise.  The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to applicable Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy for any such breach or that either Party otherwise has an adequate remedy at law.

16.10.

Rules of Construction.  Interpretation of this Agreement (except as specifically provided in this Agreement, in which case such specified rules of construction shall govern with respect to this Agreement) shall be governed by the following rules of construction:  (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph and Exhibit are references to the Articles, Sections, paragraphs and Exhibits to this Agreement unless otherwise specified; (c) the terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire Agreement, including the Exhibits and Schedules hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import shall mean “including without limitation”, unless otherwise specified; (f) references to “written” or “in writing” include in electronic form, provided that any notice given pursuant to this Agreement shall be given in accordance with Section 16.1 and any extension or waiver shall be granted in accordance with Section 14.3; (g) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (h) Licensor and Licensee have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement; (i) a reference to any Person includes such Person’s permitted successors and permitted assigns; (j) any reference to “days” means calendar days unless Business Days are expressly specified; and (k) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and, if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day.  Further, prior drafts of this Agreement or the other Transaction Agreements or the fact that any clauses have been added, deleted or otherwise modified from any prior drafts of this Agreement or any of the other Transaction Agreements shall not be used as an aid of construction or otherwise constitute evidence of the intent of the Parties, and no presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of such prior drafts.

16.11.

Counterparts.  This Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement electronically (including portable document format (.pdf)) or by facsimile shall be as effective as delivery of a manually executed counterpart of this Agreement.

16.12.

Waiver of Jury Trial.  EACH PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY DISPUTE DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF A DISPUTE, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.12.

16.13.

Further Assurances.  Each of the Parties agrees to execute all such further instruments and documents and to take all such further actions as the other Party may reasonably require in order to effectuate the terms and purposes of this Agreement. The Parties shall act in good faith in the performance of their obligations under this Agreement.

[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

[Signature Page to Trademark License Agreement]