Put/Call Agreement - Weight Watchers International Inc. and H.J. Heinz Co.
PUT/CALL AGREEMENT
This Put/Call Agreement (the "Agreement"), dated as of April 18,
2001, between WEIGHT WATCHERS INTERNATIONAL, INC., a Virginia corporation
("WWI"), and H.J. HEINZ COMPANY, a Pennsylvania corporation ("Heinz"). The
parties hereto are sometimes hereinafter referred to collectively as the
"Parties" and individually as a "Party".
W I T N E S S E T H :
WHEREAS, Heinz owns 1,428,000 shares (the "Subject Shares") of
common stock, par value $1.00 per share, of WWI (the "WWI Common Stock");
WHEREAS, WWI, Heinz and Artal Luxembourg S.A. ("Artal") are parties
to a Stockholders' Agreement, dated as of September 29, 1999 (the "Stockholders'
Agreement"), relating to, among other things, the Subject Shares;
WHEREAS, Heinz, WWI and Artal have entered into a letter agreement,
dated the date hereof (the "Letter Agreement"), relating to this Agreement and
the Stockholders' Agreement; and
WHEREAS, WWI desires to have the ability to purchase, and Heinz
desires to have the ability to sell, the Subject Shares in the manner described
herein.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the premises and the mutual representations, warranties,
covenants and agreements set forth herein, the Parties agree as follows:
ARTICLE I
PUTS/CALLS
SECTION 1.1. Put Rights. (a) Upon the terms and subject to the
conditions of this Agreement, Heinz shall have the right and option on up to
five (5) occasions (the "Put Option"), exercisable by written notice (the "Put
Notice") delivered to WWI by registered mail or by overnight courier at any time
after the date hereof and on or before May 15, 2002 (the "Put Exercise Period")
stating that Heinz intends to exercise its right, pursuant to this Section 1.1,
to sell to WWI (or such affiliate of WWI as shall be designated by WWI) and to
cause WWI (or such affiliate of WWI) to purchase from Heinz any or all of the
Subject Shares (such number of Subject Shares specified in such Put Notice, the
"Put Shares") for an aggregate purchase price equal to the Put Price (as
hereinafter defined). The Put Notice shall also specify the Put Date (as
hereinafter defined). The Put Notice shall be deemed to have been delivered (i)
five business days after being mailed by registered mail (return receipt
requested and postage prepaid) to the recipient or (ii) one business day after
being sent by overnight courier (receipt confirmation requested). If Heinz fails
to deliver a Put Notice during the Put Exercise Period, Heinz shall have
forfeited the Put Option.
(b) For purposes hereof, with respect to each exercise of the Put
Option, the term "Put Price" shall mean the Put Price Per Share multiplied by
the number of Put Shares.
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Subject to adjustment pursuant to Section 1.3 hereof, the "Put Price Per Share"
shall equal $19.00.
(c) Heinz shall fix the date (a "Put Date") for the exercise of a
Put Option no earlier than ten (10) but not more than thirty (30) business days
after the Put Notice is deemed to be delivered as set forth in Section 1.1(a)
hereof; provided that, with respect to any Put Notice that is deemed to be
delivered prior to May 3, 2001, Heinz may fix the Put Date with respect to the
exercise of such Put Option no earlier than five (5) business days after such
Put Notice is deemed to be delivered.
(d) On the Put Date, Heinz will deliver the certificates
representing the Put Shares (duly endorsed for transfer by Heinz or accompanied
by duly executed stock powers in blank) to WWI (or such affiliate of WWI as
shall be designated by WWI) against payment of the Put Price in cash by wire
transfer of immediately available funds to an account at a bank designated by
Heinz.
SECTION 1.2. Call Rights. (a) Upon the terms and subject to the
conditions of this Agreement, WWI (or such affiliate of WWI as shall be
designated by WWI) shall have the right and option (the "Call Option"),
exercisable by written notice (the "Call Notice") delivered to Heinz by
registered mail or by overnight courier at any time (i) after the earlier to
occur of (A) May 15, 2002 and (B) the date Artal could have delivered (without
giving effect to the provisions of the Letter Agreement) a Sale Notice (as
defined in the Stockholders' Agreement) to Heinz pursuant to Section 2.3 of the
Stockholders' Agreement, provided that in no event shall such date be earlier
than August 15, 2001 and (ii) on or before August 15, 2002 (the "Call Exercise
Period") stating that WWI (or such affiliate of WWI) intends to exercise its
right pursuant to this Section 1.2, to purchase from Heinz and to cause Heinz to
sell to WWI (or such affiliate of WWI) any or all of the Subject Shares not
previously purchased pursuant to Section 1.1 hereof (the "Call Shares") for an
aggregate purchase price equal to the Call Price (as hereinafter defined). The
Call Notice shall also specify the Call Date (as hereinafter defined). The Call
Notice shall be deemed to have been delivered (A) five business days after being
mailed by registered mail (return receipt requested and postage prepaid) to the
recipient or (B) one business day after being sent by overnight courier (receipt
confirmation requested). If WWI fails to deliver a Call Notice during the Call
Exercise Period, WWI shall have forfeited the Call Option.
(b) For purposes hereof, the term "Call Price" shall mean the Call
Price Per Share multiplied by the number of Call Shares. Subject to adjustment
pursuant to Section 1.3 hereof, the "Call Price Per Share" shall equal $19.00.
(c) WWI shall fix the date (the "Call Date") for the exercise of the
Call Option no earlier than ten (10) but not more than twenty (20) business days
after the Call Notice is deemed to be delivered as set forth in Section 1.2(a)
hereof.
(d) On the Call Date, Heinz will deliver the certificates
representing the Call Shares (duly endorsed for transfer by Heinz or accompanied
by duly executed stock powers in blank) to WWI (or such affiliate of WWI as
shall be designated by WWI) against payment of the
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Call Price in cash by wire transfer of immediately available funds to an account
at a bank designated by Heinz.
SECTION 1.3. Recapitalizations. Notwithstanding any other provision
of this Agreement, in the event of any stock dividend, split, reverse split,
combination, recapitalization, liquidation, reclassification, merger or
consolidation (each, a "Recapitalization"), (i) the term "Subject Shares" shall
also be deemed to include all securities issued in exchange for or with respect
to the Subject Shares outstanding immediately prior to such Recapitalization in
connection with such Recapitalization and (ii) the terms "Put Price Per Share"
and "Call Price Per Share" shall equal (A) the number of Subject Shares
outstanding immediately prior to such Recapitalization multiplied by $19.00,
divided by (B) the number of Subject Shares outstanding immediately after giving
effect to the Recapitalization.
SECTION 1.4. Irrevocability of Notice. The delivery of a Put Notice
by Heinz or a Call Notice by WWI shall irrevocably commit the Parties to the
sale or purchase, as the case may be, of the applicable Put Shares and Call
Shares, subject to the terms and provisions of this Agreement.
SECTION 1.5. No Transfers. Prior to the date twenty-one (21)
business days after the expiration of the Call Exercise Period, Heinz agrees
that neither it nor any person or entity which, directly or indirectly, alone or
through one or more intermediaries, controls, or is controlled by, or is under
common control with Heinz (an "Affiliate") will, directly or indirectly, sell,
transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either
voluntarily or involuntarily, or enter in any contract, option, hedge or other
arrangement or understanding with respect to the sale, transfer, assignment,
pledge, encumbrance, hypothecation or similar disposition of, or reduction in
its risk with respect to, any WWI Common Stock beneficially owned by Heinz or
any of its Affiliates except to WWI or its Affiliates pursuant to the terms
hereof.
SECTION 1.6. Closing. On each Put Date or Call Date, Heinz and WWI
will each deliver to the other party hereto (i) a copy of all of their corporate
resolutions authorizing the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby,
accompanied by a certification of the Secretary or Assistant Secretary of such
entity to the effect that such resolutions are in full force and effect and have
not been amended, modified or rescinded and (ii) an incumbency certificate from
the Secretary or Assistant Secretary of such entity.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. Representations and Warranties of Heinz. Heinz
represents and warrants to WWI as of the date hereof and as of each Put Date
or Call Date that:
(a) Due Incorporation. Heinz is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania.
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(b) Authority, Execution and Binding Effect. The execution, delivery
and performance by Heinz of this Agreement and the transactions contemplated
hereby are within its corporate powers, and have been duly authorized by all
necessary action on the part of Heinz, and no other corporate act or proceeding
on the part of Heinz is necessary to approve the execution and delivery of this
Agreement or the consummation by Heinz of the transactions contemplated hereby.
This Agreement has been validly executed and delivered by Heinz. Assuming due
authorization, execution and delivery by WWI, this Agreement constitutes a valid
and binding agreement of Heinz, enforceable against Heinz in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement or
creditors' rights generally or by equitable principles.
(c) No Governmental Consent Required. The execution, delivery and
performance by Heinz of this Agreement require no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental body, agency or
official except such as have been obtained or except where the failure to obtain
any such order, license, consent, authorization, approval or exemption or give
any such notice or make any filing or registration would not, in the aggregate,
reasonably be expected to adversely affect the ability of Heinz to perform its
obligations hereunder.
(d) No Conflicts. The execution, delivery and performance of this
Agreement by Heinz will not, with or without the giving of notice or lapse of
time, or both, (i) conflict with the certificate of incorporation or by-laws or
similar constitutive documents of Heinz or (ii) result in the creation of any
encumbrance, lien, mortgage, charge, claim, option, pledge, license, sublicense,
security interest, assignment by way of security, call, proxy or similar
restriction ("Encumbrances") over the Subject Shares or (iii) result in any
breach of any terms or provisions of, or constitute a default under, or conflict
with any material contract, agreement or instrument to which Heinz is a party or
by which Heinz is bound, except for such breaches, defaults or conflicts which,
individually or in the aggregate, would not be likely to have a material adverse
effect on the financial position, results of operations or business of Heinz, or
(iv) violate any material provision of law, statute, rule or regulation to which
it is subject or any material order, judgment or decree applicable to Heinz.
(e) Stock Ownership; Title to Shares. All of the Subject Shares are
as of the date hereof and will be on each Put Date or Call Date owned
beneficially and of record by Heinz, free and clear of all Encumbrances. When
WWI acquires the Subject Shares pursuant to the provisions of this Agreement,
upon payment of the Put Price or the Call Price, as applicable, it will receive
the Subject Shares free and clear of any Encumbrances other than Encumbrances
resulting from acts or omissions of or created by WWI. Heinz has not granted any
option or right, and is not party to any other agreement, and no such option,
right or agreement exists which requires, or which upon the passage of time, the
payment of money or the occurrence of any other event, may require Heinz to
transfer any of the Subject Shares to anyone other than as contemplated by this
Agreement.
(f) Litigation. There is no claim, cause of action, allegation,
action, suit, proceeding, litigation, arbitration or investigation ("Action")
pending or, to Heinz's knowledge, threatened (i) by or against Heinz or any of
its Affiliates which would be likely to prevent,
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materially interfere with or materially delay the consummation of the
transactions contemplated hereby or (ii) with respect to the transactions
contemplated hereby, at law or in equity, or before or by any federal, state,
municipal, foreign or other governmental department, commission, board, agency,
instrumentality or authority which, if adversely determined, would be likely to
prevent, materially interfere with or materially delay the consummation of the
transactions contemplated hereby. There is no order, decree, injunction or
judgment pending or in effect against Heinz or any of its Affiliates which would
be likely to prevent, materially interfere with or materially delay the
consummation of the transactions contemplated hereby.
(g) Brokers and Finders. WWI will not be responsible or in any way
obligated for the payment of any fees, commissions or expenses of any broker,
agent, finder or intermediary retained by Heinz in connection with the
transactions contemplated hereby.
SECTION 2.2. Representations and Warranties of WWI. WWI represents
and warrants to Heinz as of the date hereof and as of each Put Date or Call Date
that:
(a) Due Incorporation. WWI is a corporation, duly organized,
validly existing and in good standing, under the laws of the Commonwealth of
Virginia.
(b) Authority, Execution and Binding Effect. The execution, delivery
and performance by WWI of this Agreement and the transactions contemplated
hereby are within its corporate powers, and have been duly authorized by all
necessary action on the part of WWI, and no other corporate act or proceeding on
the part of WWI is necessary to approve the execution and delivery of this
Agreement or the consummation by WWI of the transactions contemplated hereby.
This Agreement has been validly executed and delivered by WWI. Assuming due
authorization, execution and delivery by Heinz, this Agreement constitutes a
valid and binding agreement of WWI, enforceable against WWI in accordance with
its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement or creditors' rights generally or by equitable principles.
(c) No Governmental Consent Required. The execution, delivery and
performance by WWI of this Agreement require no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental body, agency or
official except such as have been obtained or except where the failure to obtain
any such order, license, consent, authorization, approval or exemption or give
any such notice or make any filing or registration would not, in the aggregate,
reasonably be expected to adversely affect the ability of WWI to perform its
obligations hereunder.
(d) No Conflicts. The execution, delivery and performance of this
Agreement by WWI will not, with or without the giving of notice or lapse of
time, or both, (i) conflict with the certificate of incorporation or by-laws or
similar constitutive documents of WWI or (ii) result in any breach of any terms
or provisions of, or constitute a default under, or conflict with any material
contract, agreement or instrument to which WWI is a party or by which WWI is
bound, except for such breaches, defaults or conflicts which, individually or in
the aggregate, would not be likely to have a material adverse effect on the
financial position, results of operations or business of WWI or (iii) violate
any material provision of law, statute, rule or regulation to which it is
subject or any material order, judgment or decree applicable to WWI.
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(e) Litigation. There is no Action pending or, to WWI's knowledge,
threatened (i) by or against WWI or any of its Affiliates which would be likely
to prevent, materially interfere with or materially delay the consummation of
the transactions contemplated hereby or (ii) with respect to the transactions
contemplated hereby, at law or in equity, or before or by any federal, state,
municipal, foreign or other governmental department, commission, board, agency,
instrumentality or authority which, if adversely determined, would be likely to
prevent, materially interfere with or materially delay the consummation of the
transactions contemplated hereby. There is no order, decree, injunction or
judgment pending or in effect against WWI which would be likely to prevent,
materially interfere with or materially delay the consummation of the
transactions contemplated hereby.
(f) Brokers and Finders. Heinz will not be responsible or in any way
obligated for the payment of any fees, commissions or expenses of any broker,
agent, finder or intermediary retained by WWI in connection with the
transactions contemplated hereby.
ARTICLE III
COVENANTS
SECTION 3.1. Cooperation; Further Assurances. (a) Subject to the
terms and conditions of this Agreement, each of the Parties shall use all
reasonable efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including providing information and using reasonable efforts to
obtain all necessary or appropriate waivers, consents and approvals, and
effecting all necessary registrations and filings.
(b) In case at any time before or after any Put Date or Call Date
any further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of the Parties shall execute such
further documents (including assignments, acknowledgments and consents and other
instruments of transfer) and shall take such further action as shall be
necessary or desirable to carry out the purposes of this Agreement, in each case
to the extent not inconsistent with applicable law.
(c) Subject to the terms and conditions hereof, each of the Parties
shall use its reasonable efforts to cause the fulfillment at the earliest
practicable date of all of the conditions to the obligations of the Parties to
consummate the transactions contemplated by this Agreement.
SECTION 3.2. Public Disclosure. Except to the extent that either
Party is required by law or regulation to do so, each of the Parties agrees that
it shall not, and shall not authorize or permit any of its officers, directors,
agents or representatives or those of any of its Affiliates to, make any public
disclosure of the existence of this Agreement, the contents hereof or the
transactions contemplated hereby without the consent of the other Party. If any
Party is required by law or regulation to publicly disclose the existence of
this Agreement, the contents hereof or the transactions contemplated hereby,
such Party shall give the other Party at least two (2) business days to review
its proposed form of public disclosure.
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ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Obligations of WWI. The obligations of
WWI to consummate the transactions contemplated by this Agreement to occur on
each Put Date or Call Date shall be subject to the satisfaction or waiver of the
following conditions on or prior to the applicable Put Date or Call Date:
(a) Representations and Warranties. The representations and
warranties of Heinz contained in this Agreement shall be true and correct in all
material respects, as of the date hereof and as of the applicable Put Date or
Call Date as if made at such Put Date or Call Date.
(b) Covenants and Agreements. Heinz shall have performed or complied
with in all material respects each covenant, agreement and obligation required
to be performed by it at or prior to such Put Date or Call Date.
(c) Officer's Certificate. WWI shall have received a certificate of
the President or any Vice President of Heinz certifying the satisfaction of the
conditions set forth in Sections 4.1(a) and (b) at each Put Date or Call Date.
(d) No Injunction. No preliminary or permanent injunction or other
order shall have been issued by any court of competent jurisdiction, or by a
governmental or regulatory body, which remains in effect and invalidates any or
all of the provisions of this Agreement or prohibits or enjoins the consummation
of any of the transactions contemplated by this Agreement.
(e) No Prohibitions. There shall not exist and be continuing a
default or an event of default on the part of WWI or any subsidiary of WWI under
any loan, guarantee or other agreement under which WWI or any subsidiary of WWI
has borrowed or guaranteed money in excess of $1.0 million nor shall the
repurchase contemplated by Article I hereof on such Put Date or Call Date result
in a default or an event of default on the part of WWI or any subsidiary of WWI
under any such agreement nor shall the repurchase not be permitted under Section
13.1-653 of the Virginia Stock Corporation Act (the "VSCA") or otherwise violate
the VSCA or the applicable statutes of any state in which WWI reincorporates.
SECTION 4.2. Conditions to Obligations of Heinz. The obligations of
Heinz to consummate the transactions contemplated by this Agreement to occur on
each Put Date or Call Date shall be subject to the satisfaction or waiver of the
following conditions on or prior to the applicable Put Date or Call Date:
(a) Representations and Warranties. The representations and
warranties of WWI contained in this Agreement shall be true and correct in all
material respects, as of the date hereof and as of the applicable Put Date or
Call Date as if made at such Put Date or Call Date.
(b) Covenants and Agreements. WWI shall have performed or complied
with in all material respects each covenant, agreement and obligation required
to be performed by it at or prior to such Put Date or Call Date.
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(c) Officer's Certificate. Heinz shall have received a certificate
of the President or any Vice President of WWI certifying the satisfaction of the
conditions set forth in Sections 4.2(a) and (b) at each Put Date or Call Date.
(d) No Injunction. No preliminary or permanent injunction or other
order shall have been issued by any court of competent jurisdiction, or by a
governmental or regulatory body, which remains in effect and invalidates any or
all of the provisions of this Agreement or prohibits or enjoins the consummation
of any of the transactions contemplated by this Agreement.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Termination. On the date twenty-one (21) business days
after the expiration of the Call Exercise Period, the provisions of Article I of
this Agreement shall terminate and no longer be binding or of further force or
effect with respect to any Subject Shares not sold pursuant to this Agreement;
provided that nothing in this Section 5.1 shall relieve any Party from any
liability for any breach of such Party's representations, warranties, covenants
or agreements contained in this Agreement prior to such termination.
SECTION 5.2. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law. The Parties agree that (i) the provisions of this
Agreement shall be severable in the event that any of the provisions hereof are
held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, (ii) such invalid, void or otherwise unenforceable provisions
shall be automatically replaced by other provisions which are as similar as
possible in terms to such invalid, void or otherwise unenforceable provisions
but are valid and enforceable and (iii) the remaining provisions shall remain
enforceable to the extent permitted by law.
SECTION 5.3. Counterparts. This Agreement may be executed
in one or more counterparts, any one of which need not contain the signatures
of more than one Party, but all such counterparts taken together will
constitute one and the same Agreement.
SECTION 5.4. Notices. All notices (except for a Put Notice or a Call
Notice, which shall be delivered by registered mail or by courier), requests and
other communications to any Party shall be in writing (including facsimile
transmission) and shall be given:
if to WWI, to:
Weight Watchers International, Inc.
175 Crossways Park West
Woodbury, NY 11797
Fax: (516) 390-1795
Attention: General Counsel
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with copies to:
The Invus Group, Ltd.
135 East 57th Street - 30th Floor
New York, NY 10022
Fax: (212) 371-1829
Attention: Raymond Debbane
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Fax: (212) 455-2502
Attention: Robert E. Spatt, Esq.
if to Heinz, to:
H.J. Heinz Company
600 Grant Street
Pittsburgh, Pennsylvania 15219
Telecopy: (412) 456-6102
Attention: Senior Vice President and General Counsel
SECTION 5.5. Parties in Interest. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of, and be
enforceable by, the Parties and their respective successors and permitted
assigns, provided, however, that neither this Agreement nor any of the rights,
interests or obligations herein may be assigned, including by operation of law
or otherwise, by any Party without the prior written consent of the other Party,
except that Heinz may assign its rights and obligations under this Agreement to
an Affiliate if (a) Heinz unconditionally guarantees in writing (such writing to
be in form and substance satisfactory to WWI) that such Affiliate to which
Heinz's rights and obligations are assigned will perform fully all the
obligations of Heinz under this Agreement and (b) such Affiliate assumes in
writing (such writing to be in form and substance satisfactory to WWI) the
obligations of Heinz under this Agreement.
SECTION 5.6. Amendment. This Agreement may be amended, modified or
waived in whole or in part only by a duly authorized written agreement that
refers to this Agreement and is signed by each of the parties hereto or by their
duly appointed representatives or successors. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided therein.
SECTION 5.7. Transfer Taxes. All excise, sales, value added, use,
registration, stamp, transfer and other similar excise or conveyance taxes,
levies, charges and fees incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by Heinz.
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SECTION 5.8. Governing Law. This Agreement and the rights
and duties of the Parties shall be governed by, and construed in accordance
with, the law of the State of New York.
SECTION 5.9. Jurisdiction; Venue; Process. The parties to this
Agreement agree that jurisdiction and venue in any action brought by any party
hereto pursuant to this Agreement shall properly lie and shall be brought in any
federal or state court located in the State of New York. By execution and
delivery of this Agreement, each party hereto irrevocably submits to the
jurisdiction of such courts for itself and in respect of its 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.
SECTION 5.10. MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE
OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO.
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IN WITNESS WHEREOF, the Parties have executed this Put/Call
Agreement on the day first written above.
WEIGHT WATCHERS INTERNATIONAL, INC.
By____________________________________________
Name: Linda A. Huett
Title: President & Chief Executive Officer
H.J. HEINZ COMPANY
By____________________________________________
Name:
Title: