Corporate Agreement - Weight Watchers International Inc. and Artal Luxembourg SA
CORPORATE AGREEMENT
THIS CORPORATE AGREEMENT (the "Agreement") is entered into as
of November 5, 2001 by and between Weight Watchers International, Inc., a
Virginia corporation (the "Company"), and ARTAL LUXEMBOURG S.A., a Luxembourg
SOCIETE ANONYME ("Artal").
RECITALS
WHEREAS, Artal owns approximately 94% of the outstanding
Common Stock (as defined herein) of the Company.
WHEREAS, the Company has filed a registration statement to
register a number of shares of its common stock in connection with an initial
public offering (the "Initial Public Offering") by certain of its shareholders,
including Artal, registered under the Securities Act (as defined herein).
WHEREAS, the parties desire to enter into this Agreement to
set forth their agreement regarding certain corporate governance matters and
certain other matters with respect to the on-going relationship between the
Company and Artal.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and Artal,
for themselves and their successors and assigns, hereby agree as follows:
ARTICLE I
DEFINITIONS
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1.1 DEFINITIONS
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As used in this Agreement, the following terms will have the
following meanings, applicable both to the singular and the plural forms of the
terms described:
"ACTION" means any claim, suit, action, arbitration, inquiry,
investigation or other proceeding of any nature (whether criminal, civil,
legislative, administrative, regulatory, prosecutorial or otherwise) including,
without limitation, by or before any court, arbitrator or Governmental Entity.
"AGREEMENT" has the meaning ascribed thereto in the preamble
hereto, as such agreement may be amended and supplemented from time to time in
accordance with its terms.
"ARTAL" has the meaning ascribed thereto in the preamble
hereto.
"ARTAL DIRECTOR" shall mean (i) any director designated by
Artal or any Authorized
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Transferee in accordance with the provisions of Article II and (ii) any director
of the Company who at such time as Artal ceases to beneficially own more than
50% of the Total Voting Power of the Company is a director or officer of Artal
or The Invus Group, Ltd.
"AUTHORIZED TRANSFEREE" means any Transferee of at least 10%
of the Total Voting Power of the Company that pursuant to a negotiated
instrument of transfer or related agreement has been granted rights under such
provision of this Agreement by Artal or such transferring Authorized Transferee.
"BOARD OF DIRECTORS" means the board of directors of the
Company.
"COMMON STOCK" means the common stock, no par value, of the
Company, and any other class of the Company's capital stock representing the
right to vote generally for the election of directors.
"COMPANY" has the meaning ascribed thereto in the preamble
hereto.
"COMPANY LIABILITIES" means all Liabilities, whether arising
before, at or after the Initial Public Offering Date, (i) of or in any way
relating, in whole or in part, to the Company or any of its Subsidiaries or (ii)
arising from the conduct of, in connection with or in any way relating to, in
whole or in part, the businesses and operations of the Company or any of its
Subsidiaries or the ownership or use of assets or property in connection
therewith.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"FINALLY DETERMINED" means, with respect to any Action,
threatened Action or other matter, that the outcome or resolution of that
Action, threatened Action or matter has either (i) been decided by an arbitrator
or Governmental Entity of competent jurisdiction by judgment, order, award or
other ruling or (ii) has been settled or voluntarily dismissed and, in the case
of each of clauses (i) and (ii), the claimants' rights to maintain that Action,
threatened Action or other matter have been finally adjudicated, waived,
discharged or extinguished, and that judgment, order, ruling, award, settlement
or dismissal (whether mandatory or voluntary, but if voluntary that dismissal
must be final, binding and with prejudice as to all claims specifically pleaded
in that Action) is subject to no further appeal, vacatur proceeding or
discretionary review.
"GOVERNMENTAL ENTITY" means any government or any state,
department or other political subdivision thereof, or any governmental body,
agency, authority (including, but not limited to, any central bank or taxing
authority) or instrumentality (including, but not limited to, any court,
tribunal or grand jury) exercising executive, prosecutorial, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"INDEMNIFIED PARTY" has the meaning ascribed thereto in
Section 5.1.
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"INDEMNIFYING PARTY" has the meaning ascribed thereto in
Section 5.2.
"INITIAL PUBLIC OFFERING" has the meaning ascribed thereto in
the recitals hereto.
"INITIAL PUBLIC OFFERING DATE" means the date of completion of
the initial sale of Common Stock in the Initial Public Offering.
"LIABILITIES" means any and all claims, debts, liabilities,
assessments, fines, penalties, damages, losses, disgorgements and obligations,
of any kind, character or description (whether absolute, contingent, matured,
not matured, liquidated, unliquidated, accrued, known, unknown, direct,
indirect, derivative or otherwise) whenever arising, including, but not limited
to, all costs and expenses relating thereto (including, but not limited to, all
expenses of investigation, all attorneys' fees and all out-of-pocket expenses in
connection with any Action or threatened Action).
"LOWER PERCENTAGE" has the meaning ascribed thereto in Section
2.4.
"LOWER THRESHOLD" has the meaning ascribed thereto in Section
2.1.
"NOMINEE THRESHOLD" has the meaning ascribed thereto in
Section 2.1.
"PERSON" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (and any department or agency thereof) or other entity.
"RATIO" has the meaning ascribed thereto in Section 2.2.
"SEC" means the United States Securities and Exchange
Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor statute.
"SUBSIDIARY" means, as to any Person, any corporation,
association, partnership, joint venture or other business entity of which more
than 50% of the voting power of capital stock or other voting ownership
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof is owned or
controlled, directly or indirectly, by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof. "Subsidiary," when used
with respect to Artal, any Authorized Transferee or the Company, shall also
include any other entity affiliated with Artal, such Authorized Transferee or
the Company, as the case may be, that Artal, such Authorized Transferee and the
Company may hereafter agree in writing shall be treated as a "Subsidiary" of
such Person for the purposes of this Agreement.
"THIRD-PARTY CLAIM" has the meaning ascribed thereto in
Section 5.3.
"TOTAL VOTING POWER OF THE COMPANY" shall mean the total
number of votes that may be cast in the election of members of the Board of
Directors by all holders of Common
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Stock.
"TRANSFEREE" shall mean any of (i) the transferee of all or
any portion of the Common Stock held by Artal or (ii) the subsequent transferee
of all or any portion of the Common Stock held by any Transferee; provided that
no Transferee shall be entitled to any benefits of a Transferee hereunder unless
such Transferee executes an instrument substantially in the form provided as
Exhibit A attached hereto.
INTERNAL REFERENCES
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Unless the context indicates otherwise, references to
Articles, Sections and paragraphs shall refer to the corresponding articles,
sections and paragraphs in this Agreement and references to the parties shall
mean the parties to this Agreement.
SEATS ON BOARD OF DIRECTORS
2.1 So long as Artal together with any Authorized Transferee
beneficially owns shares of the Company's stock having at least 10% (the
"Nominee Threshold") but less than a majority of the Total Voting Power of
the Company, in connection with any election of directors of the Company,
Artal and such Authorized Transferee shall have the right to designate and
the Company shall cause the nomination of such number of directors of the
Company such that after such election (assuming all such Artal and Authorized
Transferee designees are elected to the Board of Directors), the number of
Artal Directors will be equal to the number resulting from (1) the Total
Voting Power of the Company beneficially owned by Artal and any Authorized
Transferees divided by the Total Voting Power of the Company, multiplied by
(2) the total number of members on the Board of Directors, rounded to the
nearest whole number; provided, that in no event shall the number of Artal
Directors nominated pursuant to this provision constitute less than one
member of the Board of Directors. Notwithstanding the foregoing, if the
Company grants any other Person at any time or from time to time the right to
nominate a director or directors based on a lesser percentage of the Total
Voting Power of the Company (the "Lower Threshold") than the Nominee
Threshold, Artal and any Authorized Transferee shall have the right to
designate an equal number of members of the Board of Directors as such other
Person so long as it beneficially owns an amount of Common Stock greater than
or equal to the Lower Threshold. If a vacancy occurs or exists on the Board
of Directors at any time, including but not limited to a vacancy because of
the death, disability, retirement, resignation or removal of any director for
cause or otherwise, and the vacant position was held by an Artal Director,
then Artal (or if such Artal Director was nominated by an Authorized
Transferee, such Authorized Transferee) shall have the sole right to
designate an individual to fill such vacancy, and, subject to the fiduciary
duties of directors, the Board of Directors shall elect such nominee to fill
such vacancy. The Company shall use its reasonable best efforts to solicit
from the shareholders of the Company eligible to vote for the election of
directors proxies in favor of the nominees designated by the Board of
Directors in accordance with this Section 2.1.
2.2 If, at any time, the total number of directors of the
Company is increased or decreased, the number of directors that Artal and any
Authorized Transferees shall have the right to designate
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pursuant to Section 2.1 above, shall as promptly as practicable be increased or
decreased so that the adjusted ratio of Artal Directors to total directors is
not less than the ratio of Artal Directors (determined immediately prior to such
increase or decrease, as the case may be, in accordance with the provisions of
Section 2.1) to the total number of directors of the Company immediately prior
to such increase or decrease, as the case may be (the "Ratio"). In such event,
Artal, each Authorized Transferee and the Company shall take such steps
consistent with the provisions of Section 2.1 to effectuate this increase or
decrease of Artal Directors in relation to the Ratio as rapidly as reasonably
possible.
2.3 At the request of Artal (or if such Artal Director was
nominated by an Authorized Transferee, such Authorized Transferee) the
Company shall (x) use its best efforts to cause a special meeting of
shareholders to be held proposing the removal of any Artal Director provided,
that if in the reasonable good faith determination by the Board of Directors
it is materially detrimental to do so, then the Company may delay calling
such special meeting; provided that the Company will cause such meeting in
any event to be held within 90 days of such request by Artal or such
Authorized Transferee and (y) use its best efforts to solicit from holders of
Common Stock proxies to remove such specified Artal Directors.
2.4(a) For so long as Artal together with any Authorized
Transferee beneficially owns shares of the Company's stock having at least
20% of the Total Voting Power of the Company, subject to the fiduciary duties
of the directors, Artal Directors shall be nominated to serve on each
committee of the Board of Directors (other than any committee required by law
or stock exchange requirement to consist solely of independent directors but
only to the extent a sufficient number of Artal Directors do not qualify as
independent directors; provided that such lesser number of Artal Directors
that do qualify as independent directors shall be appointed to such
committee) so that after such appointment(s), the ratio of Artal Directors
who are members of such committee to the total number of members of such
committee is not less than the Ratio. Notwithstanding the foregoing, if the
Company grants any other Person at any time or from time to time the right to
nominate a director or directors to serve on any committee(s) of the Board of
Directors at a percentage less than 20% of the Total Voting Power of the
Company (the "Lower Percentage"), Artal and any Authorized Transferee shall
have the right to appoint an equal number of Artal Directors to serve on such
committee(s) as such other Person so long as Artal together with such
Authorized Transferee beneficially owns an amount of the Common Stock having
at least the same amount of the Total Voting Power of the Company as the
Lower Percentage.
(b) For so long as (i) Artal together with any Authorized
Transferee beneficially owns shares of the Common Stock having at least 10%
but less than the lesser of 20% and the Lower Percentage of the Total Voting
Power of the Company and (ii) there is at least one Artal Director, any such
Artal Director shall be permitted to observe the proceedings of (but shall
not be a member of) any committee of the Board of Directors. Notwithstanding
the foregoing, if the Company grants any other Person at any time or from
time to time the right to appoint a director or directors to observe the
proceedings of any committee(s) of the Board of Directors at a percentage
less than 10% of the Total Voting Power of the Company, Artal and such
Authorized Transferee shall have the right to appoint an equal number of
Artal Directors to observe such proceedings as such other Person so long as
Artal together with such Authorized Transferee beneficially owns an amount of
the Common Stock having at least the same amount of the Total Voting
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Power of the Company as such lesser percentage.
Notwithstanding any other provision of this Article II, Artal and any Authorized
Transferee shall not be prohibited from nominating a greater number of directors
or committee members than specified in Sections 2.1 or 2.4, as the case may be.
ARTICLE III
CERTAIN COVENANTS AND AGREEMENTS
--------------------------------
3.1 NO VIOLATIONS.
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(a) Each of Artal and any Authorized Transferee covenants and
agrees that it will not take any action or enter into any commitment or
agreement that may reasonably be anticipated to result, with or without
notice and with or without lapse of time or otherwise, in a contravention or
event of default by the Company of (i) any provisions of applicable law or
regulation; (ii) any provision of the Company's articles of incorporation or
bylaws; (iii) any credit agreement or other material instrument binding upon
the Company in effect as of the date of this Agreement; or (iv) any judgment,
order or decree of any Governmental Entity having jurisdiction over the
Company or any of its assets.
(b) The Company covenants and agrees that it will not take
any action or enter into any commitment or agreement that may reasonably be
anticipated to result, with or without notice and with or without lapse of
time or otherwise, in a contravention or event of default by Artal or any
Authorized Transferee of (i) any provisions of applicable law or regulation;
(ii) any provision of the articles of incorporation or the bylaws (or similar
constitutive documents) of Artal or an Authorized Transferee; (iii) any
credit agreement or other material instrument binding upon Artal or an
Authorized Transferee in effect as of the date of this Agreement; or (iv) any
judgment, order or decree of any Governmental Entity having jurisdiction over
Artal or any Authorized Transferee or any of their respective assets.
(c) Artal or such Authorized Transferee, as the case may be,
and the Company agree to provide to the other any information and
documentation requested by the other for the purpose of evaluating and
ensuring compliance with Sections 3.1(a) and 3.1(b) hereof.
3.2 REGULATORY REQUIREMENTS
------------------------
Subject to the terms and conditions hereof, the Company agrees, and agrees to
cause each of its Subsidiaries, and Artal and each Authorized Transferee agrees,
and agrees to cause its officers, directors and advisors, to use their
reasonable best efforts to promptly take, or cause to be promptly taken, or to
refrain or cause to refrain from, as applicable, all action and to do, or cause
to be done, all things necessary, on their respective parts, to assist each
other in obtaining all governmental licenses, permits, consents, approvals,
authorizations, qualifications and orders and to permit each other to be in
compliance with all legal and regulatory requirements (of which such party has
knowledge or has otherwise been made aware of by the other party hereto) as are
reasonably necessary in connection with the operation of their respective
businesses. The Company shall promptly furnish, and shall cause each of its
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Subsidiaries to furnish, Artal or any Authorized Transferee with such
information and assistance as Artal or such Authorized Transferee may reasonably
request in connection with the preparation of any necessary filings or
submissions by Artal or such Authorized Transferee or any of their respective
Subsidiaries or affiliates to any governmental or regulatory agency or stock
exchange or as otherwise necessary to comply with law or regulation, including,
without limitation, any filings necessary under the provisions of the HSR Act,
the Securities Act or the Exchange Act or pursuant to the requirements of any
stock exchange. Artal and any Authorized Transferee shall furnish, and shall
cause its officers, directors and advisors to furnish, the Company with such
information and assistance as the Company may reasonably request in connection
with the preparation of any necessary filings or submissions by the Company or
any of its Subsidiaries or affiliates to any governmental or regulatory agency
or stock exchange or as otherwise necessary to comply with law or regulation,
including, without limitation, any filings necessary under the provisions of the
HSR Act, the Securities Act, the Exchange Act or pursuant to the requirements of
the New York Stock Exchange.
ARTICLE IV
CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST
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4.1 GENERAL
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The provisions of this Article IV are set forth to regulate and define the
conduct of certain affairs of each party and their respective officers,
directors and advisors, if applicable, and the powers, rights, duties and
liabilities of each party and their respective directors and shareholders in
connection therewith.
4.2 BUSINESS ACTIVITIES
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(a) Artal and any Authorized Transferee shall have no duty to
refrain from: (i) engaging in the same or similar activities or lines of
business as the Company; (ii) doing business with any customer of the
Company; and (iii) employing or engaging any officer or employee of the
Company, and no officer, director or advisor thereof (except as provided in
Section 4.3) shall be liable to the Company or its shareholders for breach of
any fiduciary duty by reason of any such activities of Artal or such
Authorized Transferee.
(b) The Company shall have no duty to refrain from: (i)
engaging in the same or similar activities or lines of business as Artal or
any Authorized Transferee; (ii) doing business with any customer of Artal or
any Authorized Transferee; and (iii) employing or engaging any officer,
director or advisor of Artal or any Authorized Transferee, and no officer or
director of the Company (except as provided in Section 4.3) shall be liable
to Artal or any Authorized Transferee or their respective shareholders for
breach of any fiduciary duty by reason of any such activities of the Company.
4.3 CORPORATE OPPORTUNITIES
-----------------------
In the event that a director or officer of the Company who
is also a director, officer or advisor of Artal or any Authorized Transferee
acquires knowledge of a potential
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transaction or matter that may be a corporate opportunity for both the Company
and Artal or such Authorized Transferee, such director or officer of the Company
shall have fully satisfied and fulfilled the fiduciary duty of such director or
officer to the Company and its shareholders with respect to such corporate
opportunity, if such director or officer acts in a manner consistent with the
following policy:
(i) If any officer or director of the Company who also serves
as an officer, director or advisor of Artal or any Authorized Transferee
becomes aware of a potential transaction related primarily to the group
education-based weight-loss business that may represent a corporate
opportunity for both the Company and Artal or such Authorized Transferee,
such officer or director has no duty to present that opportunity to Artal or
such Authorized Transferee; and the Company will have the sole right to
pursue the transaction if the Board of Directors so determines.
(ii) If any officer or director of the Company who also serves
as an officer, director or advisor of Artal or any Authorized Transferee
becomes aware of any other potential transaction that may represent a
corporate opportunity for both the Company and Artal or such Authorized
Transferee, such officer or director will have a duty to present that
opportunity to Artal or such Authorized Transferee; and Artal or such
Authorized Transferee will have the sole right to pursue the transaction if
Artal or such Authorized Transferee so determines.
(b) If any officer or director of the Company who does not
serve as an officer, director or advisor of Artal or any Authorized
Transferee becomes aware of a potential transaction that may represent a
corporate opportunity for both the Company and Artal or any Authorized
Transferee, neither the Company nor such officer or director has a duty to
present that opportunity to Artal or any Authorized Transferee; and the
Company may pursue the transaction if the Board of Directors so determines.
(c) If any officer, director or advisor of Artal or any
Authorized Transferee who does not serve as an officer or director of the
Company becomes aware of a potential transaction that may represent a
corporate opportunity for both Artal or such Authorized Transferee and the
Company, neither Artal, such Authorized Transferee nor any such officer,
director or advisor has a duty to present that opportunity to the Company;
and Artal or such Authorized Transferee may pursue the transaction if Artal
or such Authorized Transferee so determines.
4.4 NOTICE
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Any Person purchasing or otherwise acquiring any interest in shares of Common
Stock shall be deemed to have notice of and to have consented to the provisions
of this Article IV.
ARTICLE V
INDEMNIFICATION
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5.1 THE COMPANY'S INDEMNIFICATION FOR CERTAIN LIABILITIES.
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(a) On and after the Initial Public Offering Date, the
Company shall indemnify and hold harmless Artal and any Authorized Transferee
and their respective directors, officers, employees and
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advisors (each, an "Indemnified Party") from and against any and all Liabilities
incurred or suffered by any Indemnified Party arising out of (i) any and all
Company Liabilities and (ii) the breach by the Company of any obligation under
this Agreement.
(b) The Company shall indemnify and hold harmless each
Indemnified Party from and against any and all Liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
any document filed with the SEC by the Company pursuant to the Securities Act
or the Exchange Act, or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein (in the case
of any prospectus, in the light of the circumstances under which they were
made) not misleading, except, where in each case, those Liabilities are
caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information that is furnished in writing to the
Company by such Indemnified Party.
5.2 NOTICE AND PAYMENT OF CLAIMS
-----------------------------
If any Indemnified Party determines that it is or may be
entitled to indemnification by any party (the "Indemnifying Party") under
Article V of this Agreement (other than in connection with any Action subject to
Section 5.3), the Indemnified Party shall deliver to the Indemnifying Party a
written notice specifying, to the extent reasonably practicable, the basis for
its claim for indemnification and the amount for which the Indemnified Party
reasonably believes it is entitled to be indemnified. Within 30 days after
receipt of that notice, the Indemnifying Party shall pay the Indemnified Party
that amount in cash or other immediately available funds unless the Indemnifying
Party objects to the claim for indemnification or the amount of the claim. If
the Indemnifying Party does not give the Indemnified Party written notice
objecting to that indemnity claim and setting forth the grounds for the
objection(s) within that 30-day period, the Indemnifying Party shall be deemed
to have acknowledged its liability for that claim and the Indemnified Party may
exercise any and all of its rights under applicable law to collect that amount.
If there is a timely objection by the Indemnifying Party, the Indemnifying Party
shall pay to the Indemnified Party in cash the amount, if any, that is Finally
Determined to be required to be paid by the Indemnifying Party in respect of
that indemnity claim within 15 days after that indemnity claim has been so
Finally Determined.
5.3 NOTICE AND DEFENSE OF THIRD-PARTY CLAIMS
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Promptly after the earlier of receipt of (i) notice that a
third party has commenced an Action against or otherwise involving any
Indemnified Party or (ii) information from a third party alleging the existence
of a claim against an Indemnified Party, in either case, with respect to which
indemnification may be sought under Article V of this Agreement (a "Third-Party
Claim"), the Indemnified Party shall give the Indemnifying Party written notice
of the Third-Party Claim. The failure of the Indemnified Party to give notice as
provided in this Section 5.3 shall not relieve the Indemnifying Party of its
obligations under this Agreement, except to the extent that the Indemnifying
Party is materially prejudiced by the failure to give notice. Within 30 days
after receipt of that notice, the Indemnifying Party may (i) at its option,
elect to assume and control the defense of that Third-Party Claim at its sole
cost and expense by giving written notice to that effect to the Indemnified
Party, or (ii) object to the claim for
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indemnification set forth in the notice delivered by the Indemnified Party
pursuant to the first sentence of this Section 5.3; provided, that if the
Indemnifying Party does not within that 30-day period give the Indemnified Party
written notice objecting to that indemnification claim and setting forth the
grounds for the objection(s), the Indemnifying Party shall be deemed to have
acknowledged its liability for that indemnification claim. If the Indemnifying
Party has acknowledged liability and elected to assume the defense of a
Third-Party Claim, (x) the defense shall be conducted by counsel retained by the
Indemnifying Party and reasonably satisfactory to the Indemnified Party,
provided that the Indemnified Party shall have the right to participate in those
proceedings and to be represented by counsel of its own choosing at the
Indemnified Party's sole cost and expense unless (i) the employment thereof has
been specifically authorized by the Indemnifying Party in writing, (ii) such
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party and in the reasonable judgement of
such counsel it is advisable for such Indemnified Party to employ separate
counsel or (iii) the Indemnifying Party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the Indemnified Party, in
which case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the defense of
such action on behalf of such Indemnified Party and (y) the Indemnifying Party
may settle or compromise the Third-Party Claim without the prior written consent
of the Indemnified Party so long as any settlement or compromise of the
Third-Party Claim includes an unconditional release of the Indemnified Party
from all claims that are the subject of that Third-Party Claim; provided, that
the Indemnifying Party may not agree to any such settlement or compromise
pursuant to which any remedy or relief, other than monetary damages for which
the Indemnifying Party shall be responsible under this Agreement, shall be
applied to or against the Indemnified Party, without the prior written consent
of the Indemnified Party, which consent shall not be unreasonably withheld. If
the Indemnifying Party does not assume the defense of a Third-Party Claim for
which it has acknowledged liability for indemnification hereunder, the
Indemnified Party will act in good faith with respect to that Third-Party Claim
and may require the Indemnifying Party to reimburse it on a current basis for
its reasonable expenses of investigation, reasonable attorney's fees and
reasonable out-of-pocket expenses incurred in investigating and defending
against that Third-Party Claim and the Indemnifying Party shall be bound by the
result obtained with respect to that claim by the Indemnified Party; provided,
that the Indemnifying Party shall not be liable for any settlement or compromise
of any Third-Party Claim effected without its consent, which consent shall not
be unreasonably withheld. The Indemnifying Party shall pay to the Indemnified
Party in cash the amount, if any, for which the Indemnified Party is entitled to
be indemnified under this Agreement within 15 days after that Third-Party Claim
has been Finally Determined.
5.4 CONTRIBUTION.
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If for any reason the indemnification provided for in
Section 5.1 is unavailable to any Indemnified Party, or insufficient to hold
it harmless, then the Indemnifying Party shall contribute to the amount paid
or payable by that Indemnified Party as a result of those Liabilities in that
proportion as is appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, in connection with those statements or omissions, which relative fault
shall be determined by reference to Artal or such Authorized
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Transferee, as the case may be, on the one hand, or the Company, on the other
hand, to which those actions, conduct, statements or omissions are primarily
related, as well as any other relevant equitable considerations.
ARTICLE VI
INFORMATION RIGHTS
6.1 FINANCIAL INFORMATION
---------------------
To the extent permitted by law, so long as Artal or any
Authorized Transferee beneficially owns 10% or more of the Total Voting Power of
the Company, the Company shall deliver to Artal or such Authorized Transferee
such financial or other information as Artal or such Authorized Transferee may
request.
6.2 AUDIT RIGHTS.
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To the extent required by law or stock exchange requirement
or necessary to allow Artal's or any Authorized Transferee's audit committee
to discharge their responsibilities, the Company shall allow, on reasonable
notice, Artal or any Authorized Transferee or their respective
representatives to audit the affairs of the Company, including (i) having
access to (and take copies of) the records of the Company (and the working
papers of its accountants); (ii) having access to the premises of the Company
and its Subsidiaries and to have the ability to consult and discuss matters
with the auditors, advisors and management of the Company (during normal
office hours) and (iii) procuring that the Company shall, co-operate fully
with Artal or any Authorized Transferee and their respective representatives
in relation to this process. In addition, the Company shall use all
reasonable efforts to allow the independent accountants of Artal or any
Authorized Transferee to audit the working papers of and to assist in any
review undertaken by the Company's independent accountants. Artal and any
Authorized Transferees shall coordinate its efforts in good faith with, and
work with and through, the Audit Committee of the Board of Directors and the
Company's internal audit department to accomplish such objectives. The
Company shall bear its internal fees and expenses and shall pay the fees and
expenses of its accountants and other advisors incurred in connection with
any audit undertaken pursuant to this Section 6.2.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
------------------------------
7.1 Artal represents and warrants as follows:
(a) STATUS AND AUTHORITY.
--------------------
Artal is a SOCIETE ANONYME duly organized and validly
existing under the laws of Luxemburg. The execution and delivery by Artal of
this Agreement and the performance of its obligations hereunder have been
duly authorized by all necessary corporate action on the part of Artal, and
this Agreement has been duly executed and delivered by the duly authorized
officers of Artal and constitutes the valid, legal and binding obligation of
Artal.
(b) NO CONFLICTS.
-------------
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(i) The execution, delivery and performance of this Agreement
by Artal will not result in (A) any conflict with the charter documents of
Artal, (B) any material breach or violation of or default under any statute,
law, rule, regulation, judgment, decree, order or any material mortgage, deed
of trust, indenture, agreement or any other instrument to which Artal is a
party or by which any of their respective material properties or assets are
bound, or (C) the creation or imposition of any lien, charge, pledge or
encumbrance thereon, except for such breaches, violations or defaults and
such liens, charges, pledges or encumbrances as would not, individually or in
the aggregate, have a material adverse effect on Artal's business or
adversely affect the ability of Artal to perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to Artal in connection
with the execution and delivery of this Agreement, and the performance by
Artal of its obligations hereunder.
(c) NO LITIGATION.
-------------
There are no judicial or administrative actions, proceedings
or investigations pending or, to the best knowledge of Artal, threatened,
which question the validity of this Agreement or any action taken or to be
taken by Artal in connection herewith.
7.2 The Company represents and warrants as follows:
(a) STATUS AND AUTHORITY.
---------------------
The Company is a company duly organized, validly existing in
good standing under the laws of the Commonwealth of Virginia. The execution
and delivery by the Company of this Agreement and the performance of its
obligations hereunder have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement has been duly executed
and delivered by the duly authorized officers of the Company and constitutes
the valid, legal and binding obligation of the Company.
(b) NO CONFLICTS.
-------------
(i) The execution, delivery and performance of this Agreement
by the Company will not result in (A) any conflict with the charter documents
of the Company on any of its Subsidiaries (B) any material breach or
violation of or default under any statute, law, rule, regulation, judgment,
decree, order or any material mortgage, deed of trust, indenture, agreement
or any other instrument to which the Company or any of its Subsidiaries is a
party or by which any of their respective material properties or assets are
bound, or (C) the creation or imposition of any lien, charge, pledge or
encumbrance thereon, except for such breaches, violations or defaults and
such liens, charges, pledges or encumbrances as would not, individually or in
the aggregate, have a material adverse effect on the Company's business or
adversely affect the ability of the Company to perform its obligations
hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to the Company in
connection with the execution and delivery of this Agreement, and the
performance by the Company of its obligations hereunder.
(c) NO LITIGATION.
--------------
There are no judicial or administrative actions, proceedings
or investigations pending or, to the best knowledge of the Company,
threatened, which question the validity of this
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13
Agreement or any action taken or to be taken by the Company in connection
herewith.
7.3 Each Authorized Transferee represents and warrants as
follows:
(a) STATUS AND AUTHORITY.
---------------------
Such Authorized Transferee is duly organized and validly
existing under the laws of the jurisdiction of its organization. The
execution and delivery by such Authorized Transferee of this Agreement and
the performance of its obligations hereunder have been duly authorized by all
necessary action on the part of such Authorized Transferee, and this
Agreement has been duly executed and delivered by the duly authorized
officers of such Authorized Transferee and constitutes the valid, legal and
binding obligation of such Authorized Transferee.
(b) NO CONFLICTS.
--------------
(i) The execution, delivery and performance of this Agreement
by such Authorized Transferee will not result in (A) any conflict with the
charter or similar documents of such Authorized Transferee, (B) any material
breach or violation of or default under any statute, law, rule, regulation,
judgment, decree, order or any material mortgage, deed of trust, indenture,
agreement or any other instrument to which such Authorized Transferee is a
party or by which any of its respective material properties or assets are
bound, or (C) the creation or imposition of any lien, charge, pledge or
encumbrance thereon, except for such breaches, violations or defaults and
such liens, charges, pledges or encumbrances as would not, individually or in
the aggregate, have a material adverse effect on such Authorized Transferee's
business or adversely affect the ability of such Authorized Transferee to
perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to such Authorized
Transferee in connection with the execution and delivery of this Agreement,
and the performance by such Authorized Transferee of its obligations
hereunder.
(c) NO LITIGATION.
---------------
There are no judicial or administrative
actions, proceedings or investigations pending or, to the best knowledge of
such Authorized Transferee, threatened, which question the validity of this
Agreement or any action taken or to be taken by such Authorized Transferee in
connection herewith.
ARTICLE VIII
MISCELLANEOUS
--------------
8.1 SUBSIDIARIES
-------------
The Company agrees and acknowledges that the Company shall be responsible for
the performance by each of its Subsidiaries of the obligations hereunder
applicable to such Subsidiary.
8.2 AMENDMENTS
----------
This Agreement may be amended, supplemented or otherwise modified only by a
writing duly executed by or on behalf each of the parties hereto. No waiver by
any party of any of the provisions hereof shall be effective unless explicitly
set forth in writing and executed by
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14
the party so waiving. Except as provided in the preceding sentence, no action
taken pursuant to this Agreement, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
8.3 SEVERABILITY
------------
If any provision of this Agreement or the application of any
such provision to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid, illegal or unenforceable to any extent,
the remainder of this Agreement or such provision of the application of such
provision to such party or circumstances, other than those to which it is so
determined to be invalid, illegal or unenforceable, shall remain in full force
and effect to the fullest extent permitted by law and shall not be affected
thereby, unless such a construction would be unreasonable.
8.4 NOTICES
-------
All notices and other communications required or permitted
hereunder shall be in writing, shall be deemed duly given upon actual receipt,
and shall be delivered (a) in person, (b) by registered or certified mail,
postage prepaid, return receipt requested or (c) by facsimile or other generally
accepted means of electronic transmission (provided that a copy of any notice
delivered pursuant to this clause (c) shall also be sent pursuant to clause (a)
or (b)) above, addressed as follows:
(a) if to the Company, to:
Weight Watchers International, Inc.
175 Crossways Park West
Woodbury, New York 11797-2055
Attention: General Counsel
Telecopy No.: 516-390-1795
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Rise Norman, Esq.
Telecopy No.: 212-455-2502
(b) If to Artal, to:
Artal Luxembourg S.A.
105 Grand-Rue
L-1661 Luxembourg, Luxembourg
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15
Attention: Managing Director
Telecopy No.: 011-352-2242-5922
with a copy to:
The Invus Group, Ltd.
135 East 57th Street
New York, New York 10022
Attention: Sacha Lainovic
Telecopy No: 212-371-1829
and to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Rise Norman, Esq.
Telecopy No.: 212-455-2502
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
8.5 FURTHER ASSURANCES
-------------------
Artal and the Company shall execute, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, such instruments and take
such other action as may be reasonably necessary or advisable to carry out their
obligations under this Agreement and under any exhibit, document or other
instrument delivered pursuant hereto.
8.6 GOVERNING LAW
-------------
This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
8.7 ENTIRE AGREEMENT
----------------
This Agreement constitutes the entire understanding of the
parties hereto with respect to the subject matter hereof.
8.8 SUCCESSORS
-----------
This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns. Except as set forth in Article V, nothing contained in this Agreement,
express or implied, is intended to confer upon any other Person or entity any
benefits, rights or remedies.
8.9 JURISDICTION; SPECIFIC PERFORMANCE
----------------------------------
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16
The parties to this Agreement agree that jurisdiction and
venue in any action brought by any party hereto pursuant to this Amendment shall
properly lie and shall be brought in any federal or state court located in the
Borough of Manhattan, City and State of New York. By execution and delivery of
this Agreement, each party hereto irrevocably submits to the jurisdiction of
such courts for itself or herself and in respect of its or her property with
respect to such action. The parties hereto irrevocably agree that venue would be
proper in such court, and hereby irrevocably waive any objection that such court
is an improper or inconvenient forum for the resolution of such action. The
parties hereto acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached.
8.10 COUNTERPARTS
-------------
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original instrument, but all of which together
shall constitute but one and the same agreement.
8.11 ASSIGNMENT
----------
Neither this Agreement nor any right or obligation hereunder
is assignable in whole or in part by any party without the prior written consent
of the other party hereto. Notwithstanding the foregoing, (a) Artal or any
Authorized Transferee may transfer, in whole or in part, its rights and
obligations under this Agreement to any Transferee (and any Authorized
Transferee may transfer such rights and obligations to any subsequent
Transferee) without the prior written consent of the Company.
(b) Any assignment pursuant to paragraph (a) of this Section
8.11 shall be effective upon receipt by the Company of (i) written notice
from the transferring holder of the Common Stock stating the name and address
of any Transferee and identifying the number of shares of Common Stock with
respect to which the rights under this Agreement are being transferred and
the nature of the rights so transferred, (ii) a copy of the provision of the
instrument of transfer or related agreement granting the rights under this
Agreement so transferred and (iii) a written agreement in substantially the
form attached as Exhibit A hereto from such Transferee to be bound by the
applicable terms of this Agreement.
8.12 EFFECTIVE ONLY FOLLOWING COMPLETION OF INITIAL PUBLIC OFFERING
---------------------------------------------------------------
Neither this Agreement nor any right or obligation hereunder
shall be binding on the parties hereto and enforceable against them in
accordance with the terms thereof unless and until the Initial Public Offering
is complete.
8.13 TERMINATION
-----------
This Agreement shall terminate with respect to any party
hereto when such party no longer has any rights or obligations hereunder.
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17
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
WEIGHT WATCHERS INTERNATIONAL, INC.
By: /s/ Robert W. Hollweg
-------------------------------
ARTAL LUXEMBOURG S.A.
By: /s/ Pol Kohler
--------------------------------
<Page>
EXHIBIT A
JOINDER
By execution of this Joinder, the undersigned agrees to become
a party to that certain Corporate Agreement, dated as of November 5, 2001 (the
"Agreement"), between Weight Watchers International, Inc. and Artal Luxembourg
S.A. By execution of this Joinder, the undersigned shall have all the rights,
and shall observe all the obligations specified in Section 8.11 of the Agreement
and to have made on the date hereof all representations and warranties set forth
in Section 7.3 of the Agreement, modified, if necessary, to reflect the nature
of the undersigned as a trust, estate or other entity.
Name:
-------------------------
Address for Notices: With Copies to:
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Signature:
-----------------------------
Date:
----------------------------------