\nARTICLE VIII TERM……………………………………………………………………………………15<\/p>\nARTICLE IX MISCELLANEOUS……………………………………………………………………………..15
\n 9.1. Limitation of Liability………………………………………………………………….15
\n 9.2. Subsidiaries……………………………………………………………………………15
\n 9.3. Amendments……………………………………………………………………………..15
\n 9.4. Severability……………………………………………………………………………15
\n 9.5. Notices………………………………………………………………………………..16
\n 9.6. Further Assurances………………………………………………………………………16
\n 9.7. Counterparts……………………………………………………………………………16
\n 9.8. Governing Law…………………………………………………………………………..16
\n 9.9. Entire Agreement………………………………………………………………………..17
\n 9.10. Successors…………………………………………………………………………….17
\n 9.11. Specific Performance……………………………………………………………………17<\/p>\n
APPENDIX I – REGISTRATION RIGHTS AGREEMENT…………………………………………………………….A1
\n<\/c><\/s><\/caption>\n<\/table>\n
ii<\/p>\n
CORPORATE AGREEMENT<\/p>\n
THIS CORPORATE AGREEMENT (“Agreement”) is entered into as of
\nJune 12, 2001, by and between KRAFT FOODS INC., a Virginia corporation
\n(“Kraft”), and PHILIP MORRIS COMPANIES INC., a Virginia corporation (“Philip
\nMorris”).<\/p>\n
RECITALS<\/p>\n
A. Philip Morris owns all of the issued and outstanding
\nClass B Common Stock, no par value per share (“Class B Common Stock”), of Kraft
\nand owns 275,000,000 shares of Class A Common Stock, no par value per share
\n(“Class A Common Stock”), of Kraft, and Kraft is a member of Philip Morris’
\n“affiliated group” of corporations (the “Philip Morris Group”) for federal
\nincome tax purposes.<\/p>\n
B. The parties are contemplating that Kraft will issue
\nshares of Class A Common Stock in an initial public offering (the “Initial
\nPublic Offering”) registered under the Securities Act of 1933, as amended.<\/p>\n
C. The parties desire to enter into this Agreement to
\nset forth their agreement regarding: (i) the composition of the Kraft Board of
\nDirectors; (ii) certain covenants and agreements regarding the conduct of
\nKraft’s business; (iii) treatment of potential corporate opportunities and
\nconflicts of interest between the parties; (iv) Philip Morris’ rights to
\npurchase additional shares of Class A Common Stock upon certain issuances of
\nKraft securities to any person to permit Philip Morris to maintain its
\npercentage ownership interest in Kraft; and (v) certain registration rights with
\nrespect to Class A Common Stock.<\/p>\n
AGREEMENTS<\/p>\n
NOW, THEREFORE, for good and valuable consideration, the
\nreceipt and sufficiency of which are hereby acknowledged, Kraft and Philip
\nMorris, for themselves and their successors and assigns, hereby agree as
\nfollows:<\/p>\n
ARTICLE I
\n DEFINITIONS<\/p>\n
1.1. Definitions.
\n ———–<\/p>\n
As used in this Agreement, the following terms will have the following
\nmeanings, applicable both to the singular and the plural forms of the terms
\ndescribed:<\/p>\n
“Action” means any claim, suit, action, arbitration, inquiry,
\ninvestigation or other proceeding of any nature (whether criminal, civil,
\nlegislative, administrative, regulatory, prosecutorial or otherwise) by or
\nbefore any arbitrator or Governmental Entity.<\/p>\n
“Affiliate” means, with respect to a given Person, any Person
\ncontrolling, controlled by or under common control with such Person. For
\npurposes of this definition, “control” (including, with correlative meanings,
\nthe terms “controlled by” and “under common control with”), as applied to any
\nPerson, means the possession, directly or indirectly, of the power to direct the
\nvote of a majority of the votes that may be cast in the election of directors
\n(or other Persons acting in similar capacities) of such Person or otherwise to
\ndirect or cause the direction of the management and policies of such Person,
\nwhether through the ownership of voting securities or by contract or otherwise.<\/p>\n
“Agreement” has the meaning ascribed thereto in the preamble hereto, as
\nsuch agreement may be amended and supplemented from time to time in accordance
\nwith its terms.<\/p>\n
“Applicable Stock” means at any time the (i) shares of Common Stock
\nowned by the Philip Morris Entities that were owned on the date hereof, plus
\n(ii) shares of Class A Common Stock purchased by the Philip Morris Entities
\npursuant to Article VI of this Agreement, plus (iii) shares of Common Stock
\n ———-
\nthat were issued to Philip Morris Entities in respect of shares described in
\neither clause (i) or clause (ii) in any reclassification, share combination,
\nshare subdivision, share dividend, share exchange, merger, consolidation or
\nsimilar transaction or event.<\/p>\n
“Class A Common Stock” has the meaning ascribed thereto in the recitals
\nto this Agreement.<\/p>\n
“Class B Common Stock” has the meaning ascribed thereto in the recitals
\nto this Agreement.<\/p>\n
“Common Stock” means the Class B Common Stock, the Class A Common Stock
\nand any other class of Kraft’s capital stock representing the right to vote
\ngenerally for the election of directors and, for so long as Kraft continues to
\nbe a subsidiary corporation includable in a consolidated federal income tax
\nreturn of the Philip Morris Group, any other security of Kraft treated as stock
\nfor purposes of Section 1504(a) of the Internal Revenue Code of 1986, as
\namended.<\/p>\n
“Finally Determined” means, with respect to any Action, threatened
\nAction or other matter, that the outcome or resolution of that Action,
\nthreatened Action or matter has either (i) been decided by an arbitrator or
\nGovernmental Entity of competent jurisdiction by judgment, order, award or other
\nruling or (ii) has been settled or voluntarily dismissed and, in the case of
\neach of clauses (i) and (ii), the claimants’ rights to maintain that Action,
\nthreatened Action or other matter have been finally adjudicated, waived,
\ndischarged or extinguished, and that judgment, order, ruling, award, settlement
\nor dismissal (whether mandatory or voluntary, but if voluntary that dismissal
\nmust be final, binding and with prejudice as to all claims specifically pleaded
\nin that Action) is subject to no further appeal, vacatur proceeding or
\ndiscretionary review.<\/p>\n
2<\/p>\n
“Governmental Entity” means any government or any state, department or
\nother political subdivision thereof, or any governmental body, agency, authority
\n(including, but not limited to, any central bank or taxing authority) or
\ninstrumentality (including, but not limited to, any court, tribunal or grand
\njury) exercising executive, prosecutorial, legislative, judicial, regulatory or
\nadministrative functions of or pertaining to government.<\/p>\n
“Indemnified Party” has the meaning ascribed thereto in Section 5.4.
\n ———–<\/p>\n
“Indemnifying Party” has the meaning ascribed thereto in Section 5.4.
\n ———–<\/p>\n
“Information” has the meaning ascribed thereto in Section 3.2(a).
\n ————–<\/p>\n
“Initial Public Offering” has the meaning ascribed thereto in the
\nrecitals to this Agreement.<\/p>\n
“Initial Public Offering Date” means the date of completion of the
\ninitial sale of Class A Common Stock in the Initial Public Offering.<\/p>\n
“Issuance Event” has the meaning ascribed thereto in Section 6.2.
\n ———–<\/p>\n
“Issuance Event Date” has the meaning ascribed thereto in Section 6.2.
\n ———– <\/p>\n
“Kraft” has the meaning ascribed thereto in the preamble hereto.<\/p>\n
“Kraft Articles” means the articles of incorporation of Kraft, as
\namended.<\/p>\n
“Kraft Board” means the Board of Directors of Kraft.<\/p>\n
“Kraft Bylaws” means the amended and restated bylaws of Kraft.<\/p>\n
“Kraft Entities” means Kraft and its Subsidiaries; and “Kraft Entity”
\nshall mean any of the Kraft Entities.<\/p>\n
“Kraft Entity Liabilities” means, except as otherwise specifically
\nprovided in any Transaction Document, all Liabilities, whether arising before,
\nat or after the Initial Public Offering Date, (i) of or in any way relating, in
\nwhole or in part, to any Kraft Entity or (ii) arising from the conduct of, in
\nconnection with or in any way relating to, in whole or in part, the businesses
\nand operations of the Kraft Entities or the ownership or use of assets or
\nproperty in connection therewith. Notwithstanding the foregoing, “Kraft Entity
\nLiabilities” shall exclude (i) all Liabilities for Taxes of the Kraft Entities
\n(because the Tax Sharing Agreement will govern those Liabilities); (ii) all
\nLiabilities of the Kraft Entities pursuant to the Services Agreement (because
\nthe Services Agreement will govern those Liabilities); (iii) all Liabilities of
\nthe Kraft Entities pursuant to the Registration Rights Agreement (because the
\nRegistration Rights Agreement will govern those Liabilities); and (iv) all
\nLiabilities directly, indirectly or derivatively based on, arising out of or in
\nany way relating to, in whole or in part, the businesses and operations of the
\nPhilip Morris Entities or the ownership or use of assets or property in
\nconnection therewith.<\/p>\n
3<\/p>\n
“Kraft Indemnitee” has the meaning ascribed thereto in Section 5.2(a).
\n ————–<\/p>\n
“Liabilities” means any and all claims, debts, liabilities,
\nassessments, fines, penalties, damages, losses, disgorgements and obligations,
\nof any kind, character or description (whether absolute, contingent, matured,
\nnot matured, liquidated, unliquidated, accrued, known, unknown, direct,
\nindirect, derivative or otherwise) whenever arising, including, but not limited
\nto, all costs and expenses relating thereto (including, but not limited to, all
\nexpenses of investigation, all attorneys’ fees and all out-of-pocket expenses in
\nconnection with any Action or threatened Action).<\/p>\n
“Market Price” of any shares of Class A Common Stock on any date means
\n(i) the last sale price of such shares on such date on the New York Stock
\nExchange, Inc. or, if such shares are not listed thereon, on the principal
\nnational securities exchange or automated interdealer quotation system on which
\nsuch shares are traded or (ii) if such sale price is unavailable or such shares
\nare not so traded, the value of such shares on such date determined in
\naccordance with agreed-upon procedures reasonably satisfactory to Philip Morris
\nand Kraft.<\/p>\n
“Option” has the meaning ascribed thereto in Section 6.1(a).
\n ————–<\/p>\n
“Option Notice” has the meaning ascribed thereto in Section 6.2.
\n ———– <\/p>\n
“Ownership Percentage” means, at any time, the fraction, expressed as a
\npercentage and rounded to the nearest thousandth of a percent, whose numerator
\nis the number of shares of the Applicable Stock and whose denominator is the
\nnumber of outstanding shares of Common Stock of Kraft; provided, however, that
\nany shares of Common Stock issued by Kraft in violation of its obligations under
\nArticle VI of this Agreement shall not be deemed outstanding for the purpose
\n———-
\nof determining the Ownership Percentage.<\/p>\n
“Person” means any individual, partnership, limited liability company,
\njoint venture, corporation, trust, unincorporated organization, government (and
\nany department or agency thereof) or other entity.<\/p>\n
“Philip Morris” has the meaning ascribed thereto in the preamble
\nhereto.<\/p>\n
“Philip Morris Board” means the Board of Directors of Philip Morris.<\/p>\n
“Philip Morris Designee” has the meaning ascribed thereto in Section
\n ——-
\n2.1(b).
\n——<\/p>\n
“Philip Morris Entities” means Philip Morris and Subsidiaries of Philip
\nMorris (other than Subsidiaries that constitute Kraft Entities); and “Philip
\nMorris Entity” shall mean any of the Philip Morris Entities.<\/p>\n
“Philip Morris Entity Liabilities” means, except as otherwise
\nspecifically provided in any Transaction Document, all Liabilities, whether
\narising before, at or after the Initial Public Offering Date, (i) of or in any
\nway relating, in whole or in part, to any Philip Morris Entity or (ii) arising
\nfrom the conduct of, in connection with or in any way relating to, in whole or
\nin part, the businesses and operations of the Philip Morris Entities or the
\nownership or use of assets or <\/p>\n
4<\/p>\n
property in connection therewith. Notwithstanding the foregoing, “Philip Morris
\nEntity Liabilities” shall exclude (i) all Liabilities for Taxes of the Philip
\nMorris Entities (because the Tax Sharing Agreement will govern those
\nLiabilities); (ii) all Liabilities of the Philip Morris Entities pursuant to the
\nServices Agreement (because the Services Agreement will govern those
\nLiabilities); and (iii) all Liabilities of the Philip Morris Entities pursuant
\nto the Registration Rights Agreement (because the Registration Rights Agreement
\nwill govern those Liabilities).<\/p>\n
“Philip Morris Group” has the meaning ascribed thereto in the recitals
\nto this Agreement.<\/p>\n
“Philip Morris Indemnitee” has the meaning ascribed thereto in Section
\n ——-
\n5.1.
\n—
\n “Philip Morris Ownership Reduction” means any decrease at any time in
\nthe Ownership Percentage to less than 50%.<\/p>\n
“Registration Rights Agreement” means the Registration Rights
\nAgreement, in the form attached hereto as Appendix I, to be dated as of the date
\n ———-
\nhereof, between Kraft and Philip Morris.<\/p>\n
“Representative” shall mean, with respect to any Person, each of such
\nPerson’s directors, officers, employees, representatives, attorneys,
\naccountants, advisors and agents, and each of the heirs, executors and assigns
\nof any of the foregoing.<\/p>\n
“SEC” means the United States Securities and Exchange Commission.<\/p>\n
“Securities Act” means the Securities Act of 1933, as amended, or any
\nsuccessor statute.<\/p>\n
“Securities Exchange Act” means the Securities Exchange Act of 1934, as
\namended, or any successor statute.<\/p>\n
“Services Agreement” means the Services Agreement to be dated as of the
\ndate hereof between Kraft and Philip Morris Management Corp., a New York
\ncorporation.<\/p>\n
“Subsidiary” means, as to any Person, any corporation, association,
\npartnership, joint venture or other business entity of which the power to direct
\nthe vote of the majority of the votes that may be cast in the election of
\ndirectors (or other Persons acting in similar capacities) is held or controlled,
\ndirectly or indirectly, by such Person or by one or more of the Subsidiaries of
\nsuch Person or by a combination thereof. “Subsidiary,” when used with respect to
\nPhilip Morris or Kraft, shall also include any other entity affiliated with
\nPhilip Morris or Kraft, as the case may be, that Philip Morris and Kraft may
\nhereafter agree in writing shall be treated as a “Subsidiary” for the purposes
\nof this Agreement.<\/p>\n
“Tax” has the meaning assigned to that term in the Tax Sharing
\nAgreement.<\/p>\n
“Tax Sharing Agreement” means the Tax Sharing Agreement to be dated as
\nof the date hereof between Kraft and Philip Morris.<\/p>\n
“Third-Party Claim” has the meaning ascribed thereto in Section 5.5.
\n ————<\/p>\n
5<\/p>\n
“Transaction Documents” means this Agreement, the Tax Sharing
\nAgreement, the Registration Rights Agreement, the Services Agreement, and the
\nexhibits and schedules to those agreements.<\/p>\n
1.2. Internal References.
\n ——————-<\/p>\n
Unless the context indicates otherwise, references to
\nArticles, Sections and paragraphs shall refer to the corresponding articles,
\nsections and paragraphs in this Agreement and references to the parties shall
\nmean the parties to this Agreement.<\/p>\n
ARTICLE II
\n KRAFT BOARD REPRESENTATION<\/p>\n
2.1. General.
\n ——-<\/p>\n
The provisions of this Article II contemplate that there will
\n ———-
\nbe nine members of the Kraft Board. If the number of members of the Kraft Board
\nis greater or lesser than nine, the parties shall amend this Article II to
\n ———-
\nmaintain its purpose.<\/p>\n
2.2. Philip Morris Designees.
\n ———————–<\/p>\n
(a) Philip Morris shall have the right to designate for
\nnomination by the Kraft Board (or any nominating committee thereof) to the Kraft
\nBoard three of the members of the Kraft Board. Notwithstanding anything to the
\ncontrary set forth herein, Kraft’s obligations to Philip Morris with respect to
\nthe election or appointment of Philip Morris designated members shall be limited
\nto the obligations set forth under subsection (b) and Section 2.5 below.
\n ———–<\/p>\n
(b) Kraft shall exercise all authority under applicable law
\nand shall use its best efforts to cause three persons designated by Philip
\nMorris to be elected to the Kraft Board. Commencing with the annual meeting of
\nshareholders of Kraft to be held in 2002 and prior to each annual meeting of
\nshareholders of Kraft thereafter, Philip Morris shall be entitled to present to
\nthe Kraft Board, or any nominating committee thereof, three designees of Philip
\nMorris (each, a “Philip Morris Designee”) (or such other number of Philip Morris
\nDesignees as would result in Philip Morris having the appropriate number of
\nPhilip Morris Designees on the Kraft Board as determined pursuant to Section 2.1
\nabove) for election to the Kraft Board at each annual meeting of shareholders of
\nKraft. In the event that any Philip Morris Designee elected to the Kraft Board
\nshall cease to serve as a director for any reason, the vacancy resulting
\ntherefrom shall be filled by the Kraft Board with a substitute Philip Morris
\nDesignee.<\/p>\n
2.3. Additional Members of Kraft Board.
\n ———————————<\/p>\n
Four of the individuals designated for nomination by
\nthe Kraft Board (or any nominating committee thereof) to the Kraft Board shall
\nbe unaffiliated with either Philip Morris or Kraft (the “Additional Board
\nNominees”). Notwithstanding anything to the contrary set forth herein, Kraft’s
\nobligations to Philip Morris with respect to the election or appointment of the
\nAdditional Board Nominees shall be limited to the obligations set forth under
\nthis Section 2.3 and Section 2.5 below. In the event that any Additional Board
\n ———–
\nNominee elected to the Kraft <\/p>\n
6<\/p>\n
Board shall cease to serve as a director for any reason, the vacancy resulting
\ntherefrom shall be filled by the Kraft Board with a substitute Additional Board
\nNominee.<\/p>\n
2.4. Efforts of Kraft.
\n —————-<\/p>\n
Kraft shall at all such times exercise all authority
\nunder applicable law and use its best efforts to cause all Philip Morris
\nDesignees and Additional Board Nominees to be nominated as Kraft Board members
\nby the nominating committee of the Kraft Board, if there is such a committee.
\nKraft shall cause each Philip Morris Designee and Additional Board Nominee for
\nelection to the Kraft Board to be included in the slate of designees recommended
\nby the Kraft Board to Kraft’s shareholders for election as directors at each
\nannual meeting of the shareholders of Kraft (or at any special meeting held for
\nthe election of directors) and shall use its best efforts to cause the election
\nof each such Philip Morris Designee and Additional Board Nominee, including
\nsoliciting proxies in favor of the election of such persons.<\/p>\n
2.5. Chairman of Kraft Board.
\n ———————–<\/p>\n
Philip Morris shall have the right to designate the
\nchairman of the Kraft Board. Kraft shall exercise all authority under applicable
\nlaw and shall use its best efforts to cause the person designated by Philip
\nMorris to be elected as chairman of the Kraft Board.<\/p>\n
ARTICLE III
\n CERTAIN COVENANTS AND AGREEMENTS<\/p>\n
3.1. No Violations.
\n ————-<\/p>\n
(a) Kraft covenants and agrees that it will not take
\nany action or enter into any commitment or agreement that may reasonably be
\nanticipated to result, with or without notice and with or without lapse of time
\nor otherwise, in a contravention or event of default by any Philip Morris Entity
\nof: (i) any provisions of applicable law or regulation; (ii) any provision of
\nPhilip Morris’ articles of incorporation or bylaws; (iii) any credit agreement
\nor other material instrument binding upon Philip Morris in effect as of the date
\nof this Agreement; or (iv) any judgment, order or decree of any Governmental
\nEntity having jurisdiction over Philip Morris or any of its assets.<\/p>\n
(b) Philip Morris covenants and agrees that it will not
\ntake any action or enter into any commitment or agreement that may reasonably be
\nanticipated to result, with or without notice and with or without lapse of time
\nor otherwise, in a contravention or event of default by any Kraft Entity of: (i)
\nany provisions of applicable law or regulation; (ii) any provision of the Kraft
\nArticles or of the Kraft Bylaws; (iii) any credit agreement or other material
\ninstrument binding upon Kraft in effect as of the date of this Agreement; or
\n(iv) any judgment, order or decree of any Governmental Entity having
\njurisdiction over Kraft or any of its assets.<\/p>\n
(c) Kraft and Philip Morris agree to provide to the
\nother any information and documentation requested by the other for the purpose
\nof evaluating and ensuring compliance with Sections 3.1(a) and 3.1(b) hereof.
\n ————— ——<\/p>\n
7<\/p>\n
(d) Notwithstanding the foregoing Sections 3.1(a),
\n —————
\n3.1(b) and 3.1(c), nothing in this Agreement is intended to limit or restrict in
\n—— ——
\nany way Philip Morris’ rights as a shareholder of Kraft.<\/p>\n
3.2. Access to Information.
\n ———————<\/p>\n
(a) Kraft, subject to compliance by its Subsidiaries
\nand all of its designated Representatives with the provisions of this Section
\n ——-
\n3.2, shall afford to Philip Morris and its authorized accountants, counsel and
\n—
\nother designated Representatives reasonable access and duplicating rights (with
\ncopying costs to be borne by Philip Morris) during normal business hours to all
\nbooks and records and documents, communications, items and matters
\n(collectively, “Information”) within the knowledge, possession or control of
\nKraft or any Kraft Entity relating to their respective businesses insofar as
\nsuch access is (i) reasonably required by Philip Morris or any Philip Morris
\nEntity, as the case may be, for the purpose of performing their respective
\nobligations under this Agreement or any other agreement between the parties, and
\n(ii) permitted by law (and shall use reasonable efforts to cause Persons or
\nfirms possessing relevant Information to give similar access).<\/p>\n
(b) Except as required by law, regulation or legal or
\njudicial process, Philip Morris agrees that neither it nor any Philip Morris
\nEntity nor any of their respective directors, officers or employees will,
\nwithout the prior written consent of Kraft, disclose to any Person any material,
\nnon-public information concerning the business or affairs of Kraft acquired from
\nany director, officer or employee of Kraft (including any director, officer or
\nemployee of Kraft who is also a director, officer or employee of Philip Morris).<\/p>\n
3.3. Intercompany Transactions.
\n ————————-<\/p>\n
All material intercompany transactions between Kraft and
\nPhilip Morris after the date hereof, including any material amendments to this
\nAgreement, the Services Agreement, the Tax Sharing Agreement or any other
\nagreement between Kraft and Philip Morris, will be subject to the approval of
\nthe Audit Committee of the Kraft Board.<\/p>\n
3.4. Actions Requiring Consent.
\n ————————-<\/p>\n
(a) Kraft must obtain Philip Morris’ written consent
\nbefore:<\/p>\n
(i) entering into any agreement or arrangement that
\nbinds or purports to bind Philip Morris or any of the other Philip Morris
\nEntities, or contains provisions that trigger a default or require a material
\npayment when Philip Morris exercises any of its rights: (A) under this
\nAgreement; or (B) to convert the shares of Class B Common Stock into Class A
\nCommon Stock in accordance with the terms of the Kraft Articles;<\/p>\n
(ii) declaring any extraordinary dividend or making
\nany other extraordinary distribution to the holders of the Common Stock; or<\/p>\n
(iii) issuing any Common Stock or securities
\nconvertible into or exercisable for Common Stock except for Class A Common Stock
\nissued or granted to
\n 8<\/p>\n
employees of the Kraft Entities pursuant to the terms of any stock option or
\nother executive or employee benefit or compensation plan.<\/p>\n
(b) Philip Morris may assign all or any portion of its rights
\nunder this Section 3.4 to any transferee of shares of Common Stock previously
\n ———–
\nheld by Philip Morris; provided, that such transferee may exercise these rights
\nonly to the extent that and so long as such transferee owns or has the right to
\nacquire more than 50% of the then outstanding Common Stock.<\/p>\n
ARTICLE IV
\n CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST<\/p>\n
4.1. General.
\n ——-<\/p>\n
The provisions of this Article IV are set forth to regulate
\nand define the conduct of certain affairs each party and their respective
\nofficers and directors, and the powers, rights, duties and liabilities of each
\nparty and their respective directors and shareholders in connection therewith.<\/p>\n
4.2. Business Activities.
\n ——————-<\/p>\n
(a) Philip Morris shall have no duty to refrain from: (i)
\nengaging in the same or similar activities or lines of business as Kraft; (ii)
\ndoing business with any customer of Kraft; and (iii) employing or engaging any
\nofficer or employee of Kraft, and no officer or director thereof (except as
\nprovided in Section 4.3) shall be liable to Kraft or its shareholders for breach
\n ———–
\nof any fiduciary duty by reason of any such activities of Philip Morris.<\/p>\n
(b) Kraft shall have no duty to refrain from: (i) engaging in
\nthe same or similar activities or lines of business as Philip Morris; (ii) doing
\nbusiness with any customer of Philip Morris; and (iii) employing or engaging any
\nofficer or employee of Philip Morris, and no officer or director thereof (except
\nas provided in Section 4.3) shall be liable to Philip Morris or its shareholders
\n ———–
\nfor breach of any fiduciary duty by reason of any such activities of Kraft.<\/p>\n
4.3. Corporate Opportunities.
\n ———————–<\/p>\n
(a) In the event that a director or officer of Kraft who is
\nalso a director or officer of Philip Morris acquires knowledge of a potential
\ntransaction or matter that may be a corporate opportunity for both Kraft and
\nPhilip Morris, such director or officer of Kraft shall have fully satisfied and
\nfulfilled the fiduciary duty of such director or officer to Kraft and its
\nshareholders with respect to such corporate opportunity, if such director or
\nofficer acts in a manner consistent with the following policy:<\/p>\n
(i) If any officer or director of Kraft who also
\nserves as an officer or director of Philip Morris becomes aware of a potential
\ntransaction related primarily to the food and beverage industry, other than
\nbeer, that may represent a corporate opportunity for both Kraft and Philip
\nMorris, such officer or director has no duty to present that opportunity to
\nPhilip Morris; and Kraft will have the sole right to pursue the transaction if
\nthe Kraft Board so determines.<\/p>\n
9<\/p>\n
(ii) If any officer or director of Kraft who also
\nserves as an officer or director of Philip Morris becomes aware of any other
\npotential transaction that may represent a corporate opportunity for both Kraft
\nand Philip Morris, such officer or director will have a duty to present that
\nopportunity to Philip Morris; and Philip Morris will have the sole right to
\npursue the transaction if the Philip Morris Board so determines.<\/p>\n
(b) If any officer or director of Kraft who does not serve as
\nan officer or director of Philip Morris becomes aware of a potential transaction
\nthat may represent a corporate opportunity for both Kraft and Philip Morris,
\nneither Kraft nor such officer or director has a duty to present that
\nopportunity to Philip Morris; and Kraft may pursue the transaction if the Kraft
\nBoard so determines.<\/p>\n
(c) If any officer or director of Philip Morris who does not
\nserve as an officer or director of Kraft becomes aware of a potential
\ntransaction that may represent a corporate opportunity for both Philip Morris
\nand Kraft, neither Philip Morris nor such officer or director has a duty to
\npresent that opportunity to Kraft; and Philip Morris may pursue the transaction
\nif the Philip Morris Board so determines.<\/p>\n
4.4. Philip Morris Entities and Kraft Entities.
\n —————————————–<\/p>\n
For purposes of this Article IV only, the term “Kraft” shall
\n ———-
\ninclude any Kraft Entity and the term “Philip Morris” shall include any Philip
\nMorris Entity. 4.5. Notice.
\n ——<\/p>\n
Any Person purchasing or otherwise acquiring any interest in
\nshares of the Common Stock shall be deemed to have notice of and to have
\nconsented to the provisions of this Article IV.
\n ———-<\/p>\n
ARTICLE V
\n INDEMNIFICATION<\/p>\n
5.1. Kraft Indemnification of the Philip Morris Entities for Certain
\n —————————————————————
\nLiabilities.
\n———–<\/p>\n
(a) Subject to Section 5.3, on and after the Initial Public
\n ———–
\nOffering Date, Kraft shall indemnify and hold harmless each Philip Morris Entity
\nand its respective directors, officers and employees (each, a “Philip Morris
\nIndemnitee”) from and against any and all Liabilities incurred or suffered by
\nany Philip Morris Indemnitee arising out of (i) any and all Kraft Entity
\nLiabilities and (ii) the breach by any Kraft Entity of any obligation under this
\nAgreement.<\/p>\n
(b) Subject to Section 5.3, Kraft shall indemnify and hold
\n ———–
\nharmless each Philip Morris Indemnitee from and against any and all Liabilities
\ncaused by any untrue statement or alleged untrue statement of a material fact
\ncontained in any document filed with the SEC by any Philip Morris Entity
\npursuant to the Securities Act or the Securities Exchange Act, or caused by any
\nomission or alleged omission to state therein a material fact necessary to make
\nthe statements therein, in the light of the circumstances under which they were
\nmade, not misleading, in each case to the extent, but only to the extent, that
\nthose Liabilities are caused by any such <\/p>\n
10<\/p>\n
untrue statement or omission or alleged untrue statement or omission based upon
\ninformation that is either furnished to any Philip Morris Indemnitee by any
\nKraft Entity or incorporated by reference by any Philip Morris Indemnitee from
\nany filings made by any Kraft Entity with the SEC under the Securities Act or
\nthe Securities Exchange Act, if that statement or omission was made or occurred
\nafter the Initial Public Offering Date.<\/p>\n
5.2. Philip Morris Indemnification of Kraft Entities.
\n ———————————————–<\/p>\n
(a) Subject to Section 5.3, on and after the Initial Public
\n ———–
\nOffering Date, Philip Morris shall indemnify and hold harmless each Kraft Entity
\nand their respective directors, officers and employees (each, a “Kraft
\nIndemnitee”) from and against any and all Liabilities incurred or suffered by
\nany Kraft Indemnitee arising out of (i) any and all Philip Morris Entity
\nLiabilities and (ii) the breach by any Philip Morris Entity of any obligation
\nunder this Agreement.<\/p>\n
(b) Subject to Section 5.3, Philip Morris shall indemnify and
\n ———–
\nhold harmless each Kraft Indemnitee from and against any and all Liabilities
\ncaused by any untrue statement or alleged untrue statement of a material fact
\ncontained in any document filed with the SEC by any Kraft Entity pursuant to the
\nSecurities Act or the Securities Exchange Act, or caused by any omission or
\nalleged omission to state therein a material fact necessary to make the
\nstatements therein, in the light of the circumstances under which they were
\nmade, not misleading, in each case to the extent, but only to the extent, that
\nthose Liabilities are caused by any such untrue statement or omission or alleged
\nuntrue statement or omission based upon information that is either furnished
\nto any Kraft Indemnitee by any Philip Morris Entity or incorporated by reference
\nby any Kraft Indemnitee from any filings made by any Philip Morris Entity with
\nthe SEC under the Securities Act or the Securities Exchange Act, if that
\nstatement or omission was made or occurred after the Initial Public Offering
\nDate.<\/p>\n
5.3. Third-Party Rights; Tax Benefits.
\n ——————————–<\/p>\n
Any indemnification pursuant to Section 5.1 or Section 5.2
\n ———– ———–
\nshall be paid net of any tax benefit to the Indemnified Party attributable to
\nthe relevant payment. It is expressly agreed that no insurer or any other third
\nparty shall be (i) entitled to a benefit (as a third-party beneficiary or
\notherwise) that it would not be entitled to receive in the absence of Section
\n ——-
\n5.1 or Section 5.2, (ii) relieved of the responsibility to pay any claims to
\n— ———–
\nwhich it is obligated or (iii) entitled to any subrogation rights with respect
\nto any obligation under Section 5.1 or Section 5.2.
\n ———– ———–<\/p>\n
5.4. Notice and Payment of Claims.
\n —————————-<\/p>\n
If any Philip Morris Indemnitee or Kraft Indemnitee (the
\n“Indemnified Party”) determines that it is or may be entitled to indemnification
\nby any party (the “Indemnifying Party”) under Article V of this Agreement (other
\n ———
\nthan in connection with any Action subject to Section 5.5), the Indemnified
\n ———–
\nParty shall deliver to the Indemnifying Party a written notice specifying, to
\nthe extent reasonably practicable, the basis for its claim for indemnification
\nand the amount for which the Indemnified Party reasonably believes it is
\nentitled to be indemnified. Within 30 days after receipt of that notice, the
\nIndemnifying Party shall pay the Indemnified Party that amount in cash or other
\nimmediately available funds unless the Indemnifying Party <\/p>\n
11<\/p>\n
objects to the claim for indemnification or the amount of the claim. If the
\nIndemnifying Party does not give the Indemnified Party written notice objecting
\nto that indemnity claim and setting forth the grounds for the objection(s)
\nwithin that 30-day period, the Indemnifying Party shall be deemed to have
\nacknowledged its liability for that claim and the Indemnified Party may exercise
\nany and all of its rights under applicable law to collect that amount. If there
\nis a timely objection by the Indemnifying Party, the Indemnifying Party shall
\npay to the Indemnified Party in cash the amount, if any, that is Finally
\nDetermined to be required to be paid by the Indemnifying Party in respect of
\nthat indemnity claim within 15 days after that indemnity claim has been so
\nFinally Determined.<\/p>\n
5.5. Notice and Defense of Third-Party Claims.
\n —————————————-<\/p>\n
Promptly after the earlier of receipt of (i) notice that a
\nthird party has commenced an Action against or otherwise involving any
\nIndemnified Party or (ii) information from a third party alleging the existence
\nof a claim against an Indemnified Party, in either case, with respect to which
\nindemnification may be sought under Article V of this Agreement (a “Third-Party
\n ———
\nClaim”), the Indemnified Party shall give the Indemnifying Party written notice
\nof the Third-Party Claim. The failure of the Indemnified Party to give notice as
\nprovided in this Section 5.5 shall not relieve the Indemnifying Party of its
\n ———–
\nobligations under this Agreement, except to the extent that the Indemnifying
\nParty is prejudiced by the failure to give notice. Within 30 days after receipt
\nof that notice, the Indemnifying Party may (i) at its option, elect to assume
\nand control the defense of that Third-Party Claim at its sole cost and expense
\nby giving written notice to that effect to the Indemnified Party, or (ii)
\nobject to the claim for indemnification set forth in the notice delivered by the
\nIndemnified Party pursuant to the first sentence of this Section 5.5; provided,
\n ———–
\nthat if the Indemnifying Party does not within that 30-day period give the
\nIndemnified Party written notice objecting to that indemnification claim and
\nsetting forth the grounds for the objection(s), the Indemnifying Party shall be
\ndeemed to have acknowledged its liability for that indemnification claim. If the
\nIndemnifying Party has acknowledged liability and elected to assume the defense
\nof a Third-Party Claim, (x) the defense shall be conducted by counsel retained
\nby the Indemnifying Party and reasonably satisfactory to the Indemnified Party,
\nprovided that the Indemnified Party shall have the right to participate in those
\nproceedings and to be represented by counsel of its own choosing at the
\nIndemnified Party’s sole cost and expense; and (y) the Indemnifying Party may
\nsettle or compromise the Third-Party Claim without the prior written consent of
\nthe Indemnified Party so long as any settlement or compromise of the Third-Party
\nClaim includes an unconditional release of the Indemnified Party from all claims
\nthat are the subject of that Third-Party Claim; provided, that the Indemnifying
\nParty may not agree to any such settlement or compromise pursuant to which any
\nremedy or relief, other than monetary damages for which the Indemnifying Party
\nshall be responsible under this Agreement, shall be applied to or against the
\nIndemnified Party, without the prior written consent of the Indemnified Party,
\nwhich consent shall not be unreasonably withheld. If the Indemnifying Party does
\nnot assume the defense of a Third-Party Claim for which it has acknowledged
\nliability for indemnification hereunder, the Indemnified Party will act in good
\nfaith with respect to that Third-Party Claim and may require the Indemnifying
\nParty to reimburse it on a current basis for its reasonable expenses of
\ninvestigation, reasonable attorney’s fees and reasonable out-of-pocket expenses
\nincurred in investigating and defending against that Third-Party Claim and the
\nIndemnifying Party shall be bound by the result obtained with respect to that
\nclaim by the
\n 12<\/p>\n
Indemnified Party; provided, that the Indemnifying Party shall not be liable for
\nany settlement or compromise of any Third-Party Claim effected without its
\nconsent, which consent shall not be unreasonably withheld. The Indemnifying
\nParty shall pay to the Indemnified Party in cash the amount, if any, for which
\nthe Indemnified Party is entitled to be indemnified under this Agreement within
\n15 days after that Third-Party Claim has been Finally Determined.<\/p>\n
5.6. Contribution.
\n ————<\/p>\n
If for any reason the indemnification provided for in
\nSection 5.1 or 5.2 is unavailable to any Indemnified Party, or insufficient to
\n———– —
\nhold it harmless, then the Indemnifying Party shall contribute to the amount
\npaid or payable by that Indemnified Party as a result of those Liabilities in
\nthat proportion as is appropriate to reflect the relative fault of the
\nIndemnifying Party, on the one hand, and the Indemnified Party, on the other
\nhand, in connection with those statements or omissions, which relative fault
\nshall be determined by reference to the Philip Morris Entity or Kraft Entity to
\nwhich those actions, conduct, statements or omissions are primarily related, as
\nwell as any other relevant equitable considerations.<\/p>\n
ARTICLE VI
\n OPTION<\/p>\n
6.1. Option.
\n ——<\/p>\n
(a) Kraft hereby grants to Philip Morris, on the terms and
\nconditions set forth herein, a continuing right (the “Option”) to purchase from
\nKraft, at the times set forth herein, such number of shares of Class A Common
\nStock as is necessary to allow the Philip Morris Entities to maintain the
\nOwnership Percentage. The Option shall be assignable, in whole or in part and
\nfrom time to time, by Philip Morris to any Philip Morris Entity. The exercise
\nprice for each share of Class A Common Stock purchased pursuant to an exercise
\nof the Option shall be: (i) in the event of the issuance by Kraft of Class A
\nCommon Stock in exchange for cash consideration, the per share price paid to
\nKraft for shares of the Class A Common Stock issued by Kraft in the related
\nIssuance Event; and (ii) in the event of: (A) the issuance by Kraft of Common
\nStock other than Class A Common Stock or (B) the issuance by Kraft of Class A
\nCommon Stock for consideration other than cash, the per share Market Price of
\nClass A Common Stock at the Issuance Event Date of such issuance.<\/p>\n
(b) The provisions of Section 6.1(a) hereof notwithstanding,
\n ————–
\nthe Option granted pursuant to Section 6.1(a) shall not apply and shall not be
\n ————–
\nexercisable in connection with the issuance by Kraft of any shares of Common
\nStock in connection with the Initial Public Offering, including the full
\nexercise of all underwriters’ over-allotment options granted in connection
\ntherewith or pursuant to any stock option or other executive or employee benefit
\nor compensation plan maintained by Kraft.<\/p>\n
13<\/p>\n
6.2. Notice.
\n ——<\/p>\n
At least 20 business days prior to the issuance of any shares
\nof Common Stock (other than in connection with the Initial Public Offering,
\nincluding the full exercise of all underwriters’ over-allotment options granted
\nin connection therewith, and other than issuances of Common Stock to any Philip
\nMorris Entity) or the first date on which any event could occur that, in the
\nabsence of a full or partial exercise of the Option, would result in a reduction
\nin the Ownership Percentage, Kraft will notify Philip Morris in writing (an
\n“Option Notice”) of any plans it has to issue such shares or the date on which
\nsuch event could first occur. Each Option Notice must specify the date on which
\nKraft intends to issue such additional shares of Common Stock or on which such
\nevent could first occur (such issuance or event being referred to herein as an
\n“Issuance Event” and the date of such issuance or event as an “Issuance Event
\nDate”), the number of shares Kraft intends to issue or may issue and the other
\nterms and conditions of such Issuance Event.<\/p>\n
6.3. Option Exercise and Payment.
\n —————————<\/p>\n
The Option may be exercised by Philip Morris (or any Philip
\nMorris Entity to which all or any part of the Option has been assigned) for a
\nnumber of shares equal to or less than the number of shares that are necessary
\nfor the Philip Morris Entities to maintain, in the aggregate, the then-current
\nOwnership Percentage. The Option may be exercised at any time after receipt of
\nan applicable Option Notice and prior to the applicable Issuance Event Date by
\nthe delivery to Kraft of a written notice to such effect specifying (i) the
\nnumber of shares of Class A Common Stock to be purchased by Philip Morris, or
\nany of the Philip Morris Entities and (ii) a determination of the exercise price
\nfor such shares. Upon any such exercise of the Option, Kraft will, prior to the
\napplicable Issuance Event Date, deliver to Philip Morris (or any Philip Morris
\nEntity designated by Philip Morris), against payment therefor, certificates
\n(issued in the name of Philip Morris or its permitted assignee hereunder or as
\ndirected by Philip Morris) representing the shares of Class A Common Stock being
\npurchased upon such exercise. Payment for such shares shall be made by wire
\ntransfer or intrabank transfer of immediately-available funds to such account as
\nshall be specified by Kraft, for the full purchase price for such shares.<\/p>\n
6.4. Effect of Failure to Exercise.
\n —————————–<\/p>\n
Except as provided in Section 6.5, any failure by Philip
\n ———–
\nMorris to exercise the Option, or any exercise for less than all shares
\npurchasable under the Option, in connection with any particular Issuance Event
\nshall not affect Philip Morris’ right to exercise the Option in connection with
\nany subsequent Issuance Event; provided, however, that the Ownership Percentage
\nfollowing such Issuance Event in connection with which Philip Morris so failed
\nto exercise such Option in full or in part shall be recalculated as set forth in
\nSection 1.1.
\n———–<\/p>\n
6.5. Termination of Option.
\n ———————<\/p>\n
The Option, or any part thereof assigned to any Philip Morris
\nEntity other than Philip Morris, shall terminate in the event that the Person to
\nwhom the Option, or such part thereof, has been transferred, ceases to be a
\nPhilip Morris Entity for any reason whatsoever.<\/p>\n
14<\/p>\n
ARTICLE VII
\n REGISTRATION RIGHTS<\/p>\n
Philip Morris and Kraft shall enter into the Registration
\nRights Agreement in the form as set forth on the attached Appendix I, which will
\n ———-
\ngovern the registration rights of Philip Morris and certain other holders of the
\nCommon Stock.<\/p>\n
ARTICLE VIII
\n TERM<\/p>\n
This Agreement shall remain in effect until the Ownership
\nPercentage is less than 50%; provided, however, that: (i) the provisions of
\nSection 3.4 and Article VII shall remain in effect until terminated in
\n———– ———–
\naccordance with their terms; and (ii) the provisions of Article V shall survive
\nany termination of this Agreement. ———<\/p>\n
ARTICLE IX
\n MISCELLANEOUS<\/p>\n
9.1. Limitation of Liability.
\n ———————–<\/p>\n
Neither Philip Morris nor Kraft shall be liable to the other
\nfor any special, indirect, incidental or consequential damages of the other
\narising in connection with this Agreement. 9.2. Subsidiaries.
\n ————<\/p>\n
Philip Morris agrees and acknowledges that Philip Morris shall
\nbe responsible for the performance by each Philip Morris Entity of the
\nobligations hereunder applicable to such Philip Morris Entity. Kraft agrees and
\nacknowledges that Kraft shall be responsible for the performance by each Kraft
\nEntity of the obligations hereunder applicable to such Kraft Entity.<\/p>\n
9.3. Amendments.
\n ———-<\/p>\n
This Agreement may not be amended or terminated orally, but
\nonly by a writing duly executed by or on behalf of the parties hereto. Subject
\nto the approval requirements provided for in Section 3.3, any such amendment
\n ———–
\nshall be validly and sufficiently authorized for purposes of this Agreement if
\nit is signed on behalf of Philip Morris and Kraft by any of their respective
\npresidents or vice presidents.<\/p>\n
9.4. Severability.
\n ————<\/p>\n
If any provision of this Agreement or the application of any
\nsuch provision to any party or circumstances shall be determined by any court of
\ncompetent jurisdiction to be invalid, illegal or unenforceable to any extent,
\nthe remainder of this Agreement or such provision of the application of such
\nprovision to such party or circumstances, other than those to which it is so
\ndetermined to be invalid, illegal or unenforceable, shall remain in full force
\nand effect to the <\/p>\n
15<\/p>\n
fullest extent permitted by law and shall not be affected thereby, unless such a
\nconstruction would be unreasonable.<\/p>\n
9.5. Notices.
\n ——-<\/p>\n
All notices and other communications required or permitted
\nhereunder shall be in writing, shall be deemed duly given upon actual receipt,
\nand shall be delivered (a) in person, (b) by registered or certified mail,
\npostage prepaid, return receipt requested or (c) by facsimile or other generally
\naccepted means of electronic transmission (provided that a copy of any notice
\ndelivered pursuant to this clause (c) shall also be sent pursuant to clause
\n(b)), addressed as follows:<\/p>\n
(a) if to Kraft, to:
\n Kraft Foods Inc.
\n Three Lakes Drive
\n Northfield, Illinois 60093
\n Attention: General Counsel
\n With a copy to: Corporate Secretary<\/p>\n
(b) if to Philip Morris, to:
\n Philip Morris Companies Inc.
\n 120 Park Avenue
\n New York, New York 10017
\n Attention: General Counsel
\n With a copy to: Corporate Secretary<\/p>\n
or to such other addresses or telecopy numbers as may be specified by like
\nnotice to the other parties.<\/p>\n
9.6. Further Assurances.
\n ——————<\/p>\n
Philip Morris and Kraft shall execute, acknowledge and
\ndeliver, or cause to be executed, acknowledged and delivered, such instruments
\nand take such other action as may be necessary or advisable to carry out their
\nobligations under this Agreement and under any exhibit, document or other
\ninstrument delivered pursuant hereto.<\/p>\n
9.7. Counterparts.
\n ————<\/p>\n
This Agreement may be executed in any number of counterparts,
\neach of which shall be deemed an original instrument, but all of which together
\nshall constitute but one and the same agreement.<\/p>\n
9.8. Governing Law.
\n ————-<\/p>\n
This Agreement and the transactions contemplated hereby shall
\nbe construed in accordance with, and governed by, the laws of the Commonwealth
\nof Virginia.<\/p>\n
16<\/p>\n
9.9. Entire Agreement.
\n —————-<\/p>\n
This Agreement constitutes the entire understanding of the
\nparties hereto with respect to the subject matter hereof.<\/p>\n
9.10. Successors.
\n ———-<\/p>\n
Except as specifically provided in this Agreement, the parties
\nhereto may not assign any of their rights or obligations under this Agreement.
\nThis Agreement shall be binding upon, and shall inure to the benefit of, the
\nparties hereto and their respective successors and permitted assigns. Nothing
\ncontained in this Agreement, express or implied, is intended to confer upon any
\nother person or entity any benefits, rights or remedies, including any
\nshareholder of any party hereto.<\/p>\n
17<\/p>\n
9.11. Specific Performance.
\n ——————–<\/p>\n
The parties hereto acknowledge and agree that irreparable
\ndamage would occur in the event that any of the provisions of this Agreement
\nwere not performed in accordance with their specific terms or were otherwise
\nbreached. Accordingly, it is agreed that they shall be entitled to an injunction
\nor injunctions to prevent breaches of the provisions of this Agreement and to
\nenforce specifically the terms and provisions hereof in any court of competent
\njurisdiction in the United States or any state thereof, in addition to any other
\nremedy to which they may be entitled at law or equity.<\/p>\n
18<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this
\nAgreement the day and year first above written.<\/p>\n
PHILIP MORRIS COMPANIES INC.<\/p>\n
By: ______________________________
\n Name:
\n Title:<\/p>\n
KRAFT FOODS INC.<\/p>\n
By: ______________________________
\n Name:
\n Title:<\/p>\n
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