Exhibit 99.2
Execution Copy
PUT AND CALL OPTION AGREEMENT
dated as of May 24, 2007
among
TATA TEA (GB) LIMITED
TATA TEA (GB) INVESTMENTS LIMITED
TATA LIMITED
and
THE COCA-COLA COMPANY
PUT AND CALL OPTION AGREEMENT, dated as of May 24,
2007 (this “Agreement”), among Tata Tea (GB) Limited, a company
organized under the laws of England and Wales (the “Put Holder”), Tata
Tea (GB) Investments Limited, a company organized under the laws of England and
Wales and a wholly-owned subsidiary of the Put Holder (“TTGBI”), Tata
Limited, a company organized under the laws of England and Wales and a
wholly-owned subsidiary of Tata Sons Limited (“TL” and, together with TTGBI
and the Put Holder , the “Tata Entities”), and The Coca-Cola Company, a
corporation organized under the laws of the State of Delaware (the “Call
Holder”).
WHEREAS, the Call Holder, Mustang Acquisition Company,
LLP, a wholly-owned subsidiary of the Call Holder (“Merger Sub”), and
Energy Brands Inc., a corporation organized under the laws of the State of New
York (the “Company”), are parties to that certain Agreement and Plan of
Merger, dated as of the date hereof (the “Merger Agreement”; except as
otherwise defined herein, terms defined in the Merger Agreement are used herein
as therein defined);
WHEREAS, TTGBI, TL and the Call Holder are parties to
the certain Voting Agreement, dated as of the date hereof (the “Voting
Agreement”), pursuant to which TTGBI and TL have agreed from and after the
Effective Time to vote their shares of Common Stock (as defined below) as
directed from time to time by the Call Holder and have granted the Call Holder an
irrevocable proxy with respect to such shares;
WHEREAS, following the consummation of the Merger, TTGBI
will be the record and beneficial owner of a number of shares of common stock
(the “Common Stock”) of the Surviving Corporation set forth in Exhibit
A hereto (the “TTGBI Shares”);
WHEREAS, following the consummation of the Merger, TL
will be the record and beneficial owner of a number of shares of Common Stock
set forth in Exhibit A hereto (the “TL Shares”);
WHEREAS, prior to the commencement of the Call Period,
it is expected that TL will transfer to TTGBI the TL Shares;
WHEREAS, TTGBI desires to grant the Call Holder the
right to call all but not less than all of the Call Shares on the terms and
conditions set forth herein; and
WHEREAS, the Call Holder desires to grant the Put
Holder the right to put all but not less than all of its shares in TTGBI (the “Put
Shares”) to the Call Holder on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Except as otherwise specified or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below whenever used in this Agreement and shall include the
singular as well as the plural:
“Administrative Expense Portion” means
$858,000.
“Affiliate” means, with respect to any Person,
any other Person that directly or indirectly controls, is controlled by, or is
under common control with, such Person.
For purposes of this definition, “control”, “controlled by”, and “under
common control with” means the direct or indirect possession of ordinary voting
powers to elect a majority of the board of directors or comparable body of a
Person.
“Base Purchase Price” means the Per Share
Merger Consideration as defined in the Merger Agreement.
“Business Day” means a day of the year on which
banks are not required or authorized by law to close in the City of New York,
New York or London, England.
“Call Shares” means the TTGBI Shares and, if
the TL Shares are transferred to TTGBI pursuant to Section 7.06, the TL Shares.
“Encumbrance” has the meaning set forth in
Section 5.02(a).
“Escrow Amount” means (a) the product of (i)
the number of Call Shares, (ii) the Base Purchase Price and (iii) 10% minus (b)
any Escrow Amount Withholding subtracted from the Call Price or the Put Price
pursuant to Section 4.01 or 4.02, as the case may be.
“Escrow Amount Withholding” means the product
of (a) 0.40 and (b) the aggregate amount, if any, paid to any Parent
Indemnified Party pursuant to Section 8.02 of the Merger Agreement prior to the
Call Closing or the Put Closing, as the case may be.
“Governmental Authority” means any United
States federal, state or local or any foreign government, governmental,
regulatory or administrative authority, agency or commission or any court,
tribunal, or judicial or arbitral body.
“Governmental Order” means any order, writ,
judgment, injunction, decree, stipulation, determination or award entered by or
with any Governmental Authority.
“Person” means an individual, partnership
(whether general or limited), corporation (including a business trust), joint
stock company, trust, custodian, nominee, estate, joint venture, association,
limited liability company or other entity, or a government or any political
subdivision or agency thereof.
“Shares” means the Call Shares and/or the Put
Shares, as the case may be or as the context may require.
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ARTICLE
II
THE CALL OPTION
SECTION 2.01 Grant
of the Call Option. TTGBI hereby
grants to the Call Holder the right, and not the obligation, to purchase all
but not less than all of the Call Shares beneficially owned by such holder upon
the terms and conditions set forth in this Article II (the “Call Option”). The Call Option shall be exercisable by the
Call Holder during the period starting at 9:00AM New York City time on October
22, 2007 and ending at 5:00PM New York City time on November 21, 2007 (the “Call
Exercise Period”).
SECTION 2.02 Call
Option Procedure. The Call Holder
may exercise its Call Option by providing written notice to TTGBI (the “Call
Notice”) at any time during the Call Exercise Period (the date of such
notice being the “Call Exercise Date”).
The Call Notice shall constitute an irrevocable offer by the Call Holder
to exercise its Call Option and to purchase all the Call Shares beneficially
owned by TTGBI. Upon receipt of the Call
Notice, TTGBI shall be obligated to sell all the Call Shares pursuant to the
terms of this Article II. The price to
be paid for the Call Shares shall be the Call Price as specified in Article IV
hereof.
SECTION 2.03 Call Option
Closing. Completion of the sale and
purchase of the Call Shares following the exercise of the Call Option shall
take place no later than two Business Days after the Call Exercise Date thereof
(the “Call Closing”). At the Call
Closing and upon payment of the Call Price, TTGBI shall deliver to the Call
Holder or to one or more assignees or substitute purchasers designated by it,
at the principal office of the purchaser, certificates representing all the Call
Shares free and clear of all Encumbrances, which certificates shall have
affixed thereto stockpowers in proper form for transfer. The Call Price for the Call Shares shall be
payable to TTGBI in cash in U.S. dollars by delivery to TTGBI of the amount
thereof by wire transfer of immediately available funds to an account or
accounts, as appropriate, designated in writing by TTGBI to the Call Holder not
less than two Business Days prior to the Call Closing.
SECTION 2.04 Withholding. The Call Price or the Put Price shall be paid
net of all required withholding, provided that the Call Holder shall have
notified the Tata Entities at least 10 Business Days prior to the commencement
of the Call Period of any intention to withhold if the Call Option is exercised
and the basis therefor and the Tata Entities shall not have remedied such
basis; provided, however, that neither the Call Price nor the Put
Price shall be net of withholding under Section 1445 of the Code if, at the
time of the Closing of the Merger, the Company delivered to the Call Holder a
duly executed certificate that complies with Section 1445 of the Code and the
Treasury Regulations promulgated thereunder that the Company is not a U.S. real
property holding company as provided in Section 6.2(g) of the Merger Agreement.
ARTICLE
III
THE PUT OPTION
SECTION 3.01 Grant
of the Put Option. The Call Holder
hereby grants to the Put Holder the right, and not the obligation, to require
the Call Holder to purchase all but not less than all of the Put Shares
beneficially owned by such holder upon the terms and conditions set forth in
this Article III (the “Put Option”).
The Put Option shall be exercisable by the Put
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Holder during the period starting at 9:00AM New York City time on November
11, 2007 and ending at 5:00PM New York City time on December 3, 2007 (the “Put
Exercise Period”). Notwithstanding
anything contained herein to the contrary, the Put Option shall not be
exercisable (i) at any time that TTGBI is in breach of its obligations under
Article II hereof or (ii) in the event the Call Notice is given and the Call
Closing is delayed for any reason other than due to the fault of the Call
Holder.
SECTION 3.02 Put
Option Procedure. The Put Holder may
exercise its Put Option by providing written notice to the Call Holder (the “Put
Notice”) at any time during the Put Exercise Period (the date of such
notice being the “Put Exercise Date”).
The Put Notice shall constitute an irrevocable offer by the Put Holder
to exercise its Put Option and sell all the shares of TTGBI beneficially owned
by the Put Holder. Upon receipt of the
Put Notice, the Call Holder shall be obligated to purchase all the Put Shares
pursuant to the terms of this Article II.
The price to be paid for the Put Shares shall be the Put Price as
specified in Article IV hereof.
SECTION 3.03 Put Option
Closing. Completion of the sale and
purchase of the Put Shares following the exercise of the Put Option shall take
place no later than two Business Days after the Put Exercise Date thereof (the “Put
Closing”). At the Put Closing and
upon payment of the Put Price, the Put Holder exercising the Put Option shall
deliver to the Call Holder or to one or more assignees or substitute purchasers
designated by it, at the principal office of the purchaser, certificates
representing all the Put Shares free and clear of all Encumbrances, which
certificates shall have affixed thereto stockpowers in proper form for
transfer. The Put Price for the Put
Shares shall be payable to the Put Holder exercising the Put Option in cash in
U.S. dollars by delivery to the Put Holder of the amount thereof by wire
transfer of immediately available funds to an account or accounts, as
appropriate, designated in writing by each the Put Holder to the Call Holder
not less than two Business Days prior to the Put Closing. At the Put Closing the Put Holder shall cause
all outstanding indebtedness of TTGBI to be repaid.
ARTICLE
IV
DETERMINATION OF THE PUT PRICE AND CALL PRICE
SECTION 4.01 Call
Price. The aggregate price to be
paid for the Call Shares pursuant to the Call Option (the “Call Price”)
shall equal (a) the product of (i) the Base Purchase Price and (ii) the number
of Call Shares, minus (b) the aggregate amount of any dividends paid by
the Surviving Corporation on the Call Shares during the period commencing on
the Closing of the Merger and ending on the Call Closing, minus (c) the Escrow
Amount, minus (d) the Administrative Expense Portion and minus
(e) the Escrow Amount Withholding, if any.
SECTION 4.02 Put
Price. The aggregate price to be
paid for the Put Shares pursuant to the Put Option (the “Put Price”)
shall equal (a) the product of (i) the Base Purchase Price and (ii) the number
of Call Shares, minus (b) the aggregate amount of any dividends paid by
the Surviving Corporation on the Call Shares during the period commencing on
the Closing of the Merger and ending on the Put Closing to the extent that such
dividends are subsequently distributed to any Person other than TTGBI, minus
(c) the Escrow Amount, minus (d) the Administrative Expense Portion
and minus (e) the Escrow Amount Withholding, if any.
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SECTION 4.03 Escrow. At any Put Closing or any Call Closing, the
Call Holder shall cause to be deposited the Escrow Amount with respect to such
Shares at such closing into the Indemnification Account to be managed and paid
out by the Indemnification Escrow Agent in accordance with the terms of the Indemnification
Escrow Agreement and the Merger Agreement.
SECTION 4.04 Administrative
Expense Portion. At any Put Closing
or any Call Closing, the Call Holder shall cause to be deposited the
Administrative Expense Portion with respect to such Shares at such closing with
the Stockholder Representative for deposit into a separate account, and to be
held in such separate account and used and distributed by the Stockholder
Representative in accordance with applicable provisions of the Merger
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE TATA ENTITIES
Each Tata Entity hereby represents and warrants to the
Call Holder as follows:
SECTION 5.01 Organization,
Authority and Qualification. Each
Tata Entity is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all necessary power and
authority to enter into this Agreement, and to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement
by each Tata Entity, the performance by each Tata Entity of its obligations
hereunder and the consummation by each Tata Entity of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of each Tata Entity. This Agreement
has been duly executed and delivered by each Tata Entity, and (assuming due
authorization, execution and delivery by the Call Holder) this Agreement constitutes
a legal, valid and binding obligation of each Tata Entity enforceable against
each Tata Entity in accordance with its terms.
SECTION 5.02 Ownership
of the Shares.
(a) TTGBI will be at the
Effective Time the record and beneficial owner of the TTGBI Shares and will be at
the time of the Call Closing the record and beneficial owner of the Call Shares,
in each case free and clear of all security interests, pledges, mortgages,
liens, charges, encumbrances, adverse claims or restrictions of any kind, including,
without limitation, any restrictions on the voting or transfer thereof (the “Encumbrances”). Upon the sale of the Call Shares to the Call
Holder pursuant to this Agreement, the Call Holder will own all the Call Shares
purchased free and clear of all Encumbrances.
(b) TL will be at the
Effective Time the record and beneficial owner of the TL Shares and, if the TL
Shares are not transferred to TTGBI pursuant to Section 7.06, will be at the
time of the Call Closing or the Put Closing, as the case may be, the record and
beneficial owner of the TL Shares, in each case free and clear of all
Encumbrances. Upon the sale of the TL
Shares to the Call Holder pursuant to this Agreement, the Call Holder will own
all the TL Shares purchased free and clear of all Encumbrances.
(c) The Put Holder is and
will be at the time of the Put Closing the record and beneficial owner of the Put
Shares, and at the Effective Time the Put Shares will be free and
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clear of all Encumbrances. The Put
Shares constitute all of the issued and outstanding capital stock of TTGBI, and
there are no options, warrants, convertible securities or other rights,
agreements, arrangements or commitments of any character relating to the Put
Shares or obligating the Put Holder to issue or sell any Put Shares, or any
other interest in, TTGBI. Upon the sale
of the Put Shares to the Call Holder pursuant to this Agreement, the Call
Holder will own all the Put Shares purchased free and clear of all
Encumbrances.
SECTION 5.03 No
Conflict. The execution, delivery
and performance of this Agreement by each Tata Entity at the time of the Put
Closing or the Call Closing, as the case may be, do not and will not
(a) violate, conflict with or result in the breach of any of the
organizational documents of either Tata Entity, (b) conflict with or
violate any law, rule or regulation or Governmental Order applicable to either
Tata Entity or any of the assets, properties or businesses of either Tata
Entity, or (c) conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any Encumbrance on any of the
Shares or on any of the assets or properties of, or result in the creation of
any rights with respect to the securities of, either Tata Entity pursuant to,
any note, bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to which either
Tata Entity is a party or by which any of the Shares or any of such assets or
properties is bound or affected.
ARTICLE
VI
REPRESENTATIONS AND WARRANTIES OF THE CALL HOLDER
The Call Holder hereby represents and warrants to the
Put Holder as follows:
SECTION 6.01 Organization,
Authority and Qualification. The
Call Holder is duly organized, validly existing and in good standing under the
laws of Delaware and has all necessary power and authority to enter into this
Agreement, and to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. The
execution and delivery of this Agreement by the Call Holder, the performance by
the Call Holder of its obligations hereunder and the consummation by the Call
Holder of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of the Call Holder. This Agreement has been duly executed and
delivered by the Call Holder, and (assuming due authorization, execution and
delivery by each Tata Entity) this Agreement constitutes a legal, valid and
binding obligation of the Call Holder enforceable against the Call Holder in
accordance with its terms.
SECTION 6.02 No
Conflict. The execution, delivery
and performance of this Agreement by the Call Holder do not and will not
(a) violate, conflict with or result in the breach of any provision of the
certificate of incorporation of the Call Holder, (b) conflict with or
violate any law, rule or regulation or Governmental Order applicable to the
Call Holder or any of its assets, properties or businesses, or
(c) conflict with, result in any breach of, constitute a default (or event
which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, amendment, acceleration, suspension, revocation or cancellation
of, or result in the creation of
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any Encumbrance on any of the Shares or on any of the assets or
properties of, or result in the creation of any rights with respect to the
securities of, the Call Holder pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which the Call Holder is a party or by which
the Call Holder or any of such assets or properties is bound or affected.
SECTION 6.03 Financing. The Call Holder has and will have available
at the Put Closing or the Call Closing, as the case may be, all of the funds
required to perform its obligations under this Agreement.
ARTICLE
VII
COVENANTS AND ADDITIONAL AGREEMENTS
SECTION 7.01 No Transfer
or Encumbrance. (a) Except as contemplated hereby or the Voting
Agreement, from and after the Effective Time the Tata Entities shall not transfer,
sell, assign, option, pledge, hypothecate or otherwise directly, indirectly or
by operation of Law or otherwise (including without limitation by merger or
sale of equity in any direct or indirect holding company), dispose of or subject
to any Encumbrance any of the Call Shares or the Put Shares. Notwithstanding
anything herein to the contrary but subject to the terms of the Voting
Agreement, TTGBI shall retain its full rights as a shareholder of the Surviving
Corporation for all purposes unless and until the purchase of the Call Shares
or the Put Shares, as the case may be.
SECTION 7.02 Release of Liens. On or prior to the Effective Time, the Tata
Entities shall take all action necessary to release all outstanding
Encumbrances on the shares of common stock of the Company owned by TTGBI
or the Put Shares, as
the case may be. Once all of the
outstanding Encumbrances on the shares of common stock of the Company owned by
TTGBI and the Put Shares are ready to be released, the Tata Entities will
notify the Call Holder that such shares are ready to be released (including any
conditions to be satisfied as of the Effective Time).
SECTION 7.03 Merger. The Call Holder agrees not to, and agrees to
cause the Surviving Corporation not to, enter into any agreement effecting any issuance
of shares or other rights in respect of capital stock of the Surviving
Corporation, merger, recapitalization, stock split, business combination or
other transaction such that the shares of Common Stock would be exchanged for
consideration or TTGBI’s interest in the Surviving Corporation would cease to
be a “substantial shareholding” as defined in paragraph 8 Schedule 7AC UK
Taxation of Chargeable Gains Act 1992.
SECTION 7.04 No Inconsistent
Tax Position. The Tata Entities
agree for United States federal income tax purposes that they will not take any
filing position that is inconsistent with any position taken by the Call
Holder. The Call Holder agrees for
United Kingdom tax purposes that it will not take any filing position that is
inconsistent with any position taken by any Tata Entity.
SECTION 7.05 Tax
Election. TTGBI and the Put Holder
shall use best efforts to cause TTGBI to (i) continue to have only one
shareholder at all times from the date of
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this Agreement through the earlier of the Call Exercise Date or the Put
Exercise Date and (ii) be treated as disregarded as a separate entity for
United States federal income tax purposes effective from the date of this Agreement
through the earlier to occur of the Call Closing or the Put Closing. In furtherance of the foregoing, within ten
days following the date of this Agreement, TTGBI shall apply for a United
States employer identification number by filing United States Internal Revenue
Service Form SS-4, in a manner reasonably satisfactory to the Call Holder. Within ten days following receipt of
notification from the United States Internal Revenue Service of such United
States employer identification number, TTGBI shall file United States Internal
Revenue Service Form 8832, in a manner reasonably satisfactory to the Call
Holder, electing for TTGBI to be disregarded as a separate entity for United
States federal income tax purposes effective as of the date of this Agreement. TTGBI, the Put Holder, TL and Tata Sons
Limited shall consult and cooperate with the Call Holder in connection with
such filings and any further filings or other communications with the United
States Internal Revenue Service related thereto, including (without
limitation), allowing the Call Holder an opportunity to comment on any filings
or other written correspondence prior to submission to the United States
Internal Revenue Service, promptly providing the Call Holder with copies of any
written or electronic correspondence to or from the United States Internal
Revenue Service and informing the Call Holder of the details of any oral
communications.
SECTION 7.06 Transfer of
TL Shares. TL shall, prior to the
commencement of the Call Period, transfer to TTGBI all and not less than all of
the TL Shares; provided, however, if TL does not transfer to TTGBI all and not
less than all of the TL Shares, the Call Holder shall have the right mutatis mutandis to call such shares in
accordance with Article II and TL shall have the right mutatis mutandis to put such shares in
accordance with Article III.
SECTION 7.07 Extension. If all the conditions to the Merger have been
satisfied or (to the extent permitted by applicable Law) waived and the Call
Holder is ready, willing and able to effect the Merger but not all of the
outstanding Encumbrances on the shares of common stock of the Company owned by
TTGBI or the Put Shares, as the case may be, are ready to be released, the Call
Holder will delay the Closing for a period not to exceed five Business Days
from the date the Tata Entities receive a notice (by facsimile transmission) to
such effect, including an affirmative statement that the parties to the Merger
Agreement are ready, willing and able to effect the Merger.
ARTICLE
VIII
TERMINATION
SECTION 8.01 Termination.
(a) This
Agreement may be terminated:
(i) By
the written consent of each of the parties hereto;
(ii) By
any of the parties hereto if the Merger Agreement has been terminated in
accordance with its terms prior to the Closing thereunder; or
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(iii) By
the Call Holder if all outstanding Encumbrances on the shares of common stock
of the Company owned by TTGBI or the Put Shares, as the case may be, have not
been released on or prior to the date that is five Business Days after the date
all the conditions to the Merger have been satisfied or (to the extent
permitted by applicable Law) waived; provided, however, that such
five Business Day period shall not commence until the date the Tata Entities
receive a notice (by facsimile transmission) to such effect, including an
affirmative statement that the parties to the Merger Agreement are ready,
willing and able to effect the Merger.
This Agreement shall automatically terminate upon the
expiration of the Put Exercise Period if neither the Put Option nor the Call
Option has been exercised.
ARTICLE
IX
MISCELLANEOUS
SECTION 9.01 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent possible.
SECTION 9.02 Regulatory
and Other Authorizations; Notices and Consents. Each of the parties hereto agree to use its
reasonable best efforts to obtain all authorizations, consents, orders and
approvals of all Governmental Authorities that may be or become necessary for
the execution and delivery of, and the performance of its obligations pursuant
to, this Agreement and will cooperate fully with the other parties hereto in
promptly seeking to obtain all such authorizations, consents, orders and
approvals.
SECTION 9.03 Specific
Performance. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
SECTION 9.04 Entire
Agreement. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties hereto with respect to the subject
matter hereof.
SECTION 9.05 Amendment;
Waiver.
(a) Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
the parties hereto or in the case of a waiver, by the party against whom the
waiver is to be effective.
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(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 9.06 Governing
Law; Waiver of Jury Trial.
(a) This Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts executed in and to be performed in that
State. All claims, actions, suits, or
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York federal court sitting in the Borough of
Manhattan of The City of New York; provided, however, that if
such federal court does not have jurisdiction over such claim, action, suit, or
proceeding, such claim, action, suit, or proceeding shall be heard and
determined exclusively in any New York state court sitting in the Borough of
Manhattan of The City of New York.
Consistent with the preceding sentence, the parties hereto hereby (a)
submit to the exclusive jurisdiction of any federal or state court sitting in
the Borough of Manhattan of The City of New York for the purpose of any claim,
action, suit or proceeding arising out of or relating to this Agreement brought
by any party hereto and (b) irrevocably waive, and agree not to assert by way
of motion, defense, or otherwise, in any such claim, action, suit or
proceeding, any claim that it is not subject personally to the jurisdiction of
the above named courts, that its property is exempt or immune from attachment
or execution, that the claim, action, suit or proceeding is brought in an
inconvenient forum, that the venue of the claim, action, suit or proceeding is
improper, or that this Agreement or the transactions contemplated by this
Agreement may not be enforced in or by any of the above named courts.
(b) Each
of the parties hereto hereby waives to the fullest extent permitted by
applicable Law any right it may have to a trial by jury with respect to any
litigation directly or indirectly arising out of, under or in connection with
this Agreement or the transactions contemplated by this Agreement. Each of the parties hereto hereby (a)
certifies that no representative, agent or attorney of the other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it has been induced to enter into this Agreement and the transactions
contemplated by this Agreement, as applicable, by, among other things, the
mutual waivers and certifications in this Section 9.06.
SECTION 9.07 Expenses. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
SECTION 9.08 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by facsimile or by registered or certified mail (postage
prepaid, return receipt requested) 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 9.08):
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(a) if
to a Tata Entity:
The Tetley Group Limited
325 Oldfield Lane North
Greenford, Middlesex
UB6 OAZ, United Kingdom
Attention: Daniel Barlow
Fax: +44 208 575 2508
with copies to:
The Tetley Group Limited
325 Oldfield Lane North
Greenford, Middlesex
UB6 OAZ, United Kingdom
Attention: L.
Krishna Kumar
Fax: +44 208 338
4414
and
Shearman &
Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Stephen M.
Besen
Fax: 212-848-7179
(b) if
to the Call Holder:
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, Georgia 30313
Attention: Chief Financial Officer
Fax: 404-676-8621
with copies to:
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, Georgia 30313
Attention: General Counsel
Fax: 404-515-2546
and
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
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Attention: Martha E. McGarry
Sean C. Doyle
Fax: (212) 735-2000
SECTION 9.09 Public
Announcements. No party to this
Agreement shall make, or cause to be made, any written press release or written
public announcement in respect of this Agreement or the transactions
contemplated hereby with any news media without the prior consultation of the
other party, and the parties shall provide each other the opportunity to review
and comment upon, any written press release or other written public statements
with respect to the transaction and shall not issue any such press release or
make any such public statement prior to such consultation.
SECTION 9.10 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 9.11 Assignment. Neither this Agreement, nor any right,
obligation or interest hereunder may be assigned or otherwise transferred or
disposed of, whether by operation of law, security or otherwise, without, in
the case of an assignment by the Call Holder, the written consent of the Tata
Entities (which consent may be granted or withheld in the sole discretion of
the Tata Entities), and in the case of an assignment by a Tata Entity (except
pursuant to Section 7.01), the written consent of the Call Holder (which
consent may be granted or withheld in the sole discretion of the Call Holder); provided,
however, that the Put Holder may assign its rights under this Agreement
to an Affiliate of such Holder (it being agreed that no such assignment shall
relieve the assignor from any of its obligations under this Agreement); provided,
further that the Tata Entities may assign this Agreement and any of their
rights and interests hereunder by way of security. The Call Holder acknowledges that upon any
such assignment, the holders of such security may, under certain circumstances,
have the ability to enforce the rights of the Tata Entities under this
Agreement.
SECTION 9.12 No
Third Party Beneficiaries. This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their successors and permitted assigns and nothing herein, express
or implied, is intended to or shall confer upon any other person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 9.13 Time
of Essence. Time shall be of the
essence in performing any party’s obligations hereunder.
SECTION 9.14 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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