WBA Walgreens Boots Alliance Inc

Exhibit (q)

 

EXECUTION VERSION

 

REINVESTMENT AGREEMENT

 

This REINVESTMENT AGREEMENT (this “Agreement”), dated as of March 6, 2025, is entered into by and among Mr. Stefano Pessina, a Monégasque citizen (“SP”), Alliance Santé Participations S.A., a société anonyme incorporated under the laws of the Grand Duchy of Luxembourg (“ASP” and, together with SP, the “Investors” and each, an “Investor”), and Blazing Star Parent, LLC, a Delaware limited liability company (“Sycamore Parent” and, together with its affiliates, the “Sponsor Parties”). Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Merger Agreement (as defined below).

 

RECITALS

 

WHEREAS, concurrently with the execution of this Agreement, Sycamore Parent, Blazing Star Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Sycamore Parent (“Sycamore Merger Sub”), Walgreens Boots Alliance, Inc., a Delaware corporation (the “Company”) and the other parties identified therein are entering into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), pursuant to which Sycamore Merger Sub will be merged with and into the Company with the Company surviving such merger as a wholly owned subsidiary of Sycamore Parent (the “Merger”);

 

WHEREAS, as of the date hereof, the Investors hold the number of shares of the Company Common Stock set forth on Schedule 1 under the caption “Shares of Company Common Stock” (the “Existing Shares”);

 

WHEREAS, pursuant to the Merger Agreement, on or prior to the Merger Closing Date, the Company will effect the Carveout Transactions, such that, as of the Effective Time, the businesses of the Company will each be held, directly or indirectly, through parent entities formed by affiliates of Sycamore Parent prior to the Merger Closing (each such parent entity, a “Topco” and such transactions, collectively, the “Restructuring”);

 

WHEREAS, immediately following the Restructuring, it is expected that a Topco will indirectly hold all of the outstanding equity interests of Sycamore Parent and the Company (“Star Topco”), through a direct or indirect wholly owned subsidiary (“Star Holdings”), which will directly or indirectly own all of the outstanding equity interests of Sycamore Parent and the Company;

 

WHEREAS, subject to the terms and conditions of this Agreement and the Merger Agreement, the Investors collectively desire to (i) purchase equity interests of Star Topco from Star Holdings and (ii) purchase equity interests of each other Topco from such Topco, immediately following the effectiveness of the Merger and the Restructuring, in exchange for an aggregate amount of cash equal to (a) the product of (1) the number of Existing Shares and (2) the Per Share Cash Consideration (including, for avoidance of doubt, any adjustments thereto pursuant to Section 2.1(c) of the Merger Agreement) (the “Reinvestment Amount”) plus (b) an additional amount of cash equal to $77,638,645 (the “Additional Equity Investment Amount” and, together with the Reinvestment Amount, the “Aggregate Equity Investment Amount”) (such transactions, collectively, the “Reinvestment”);

 

 

WHEREAS, the number of newly issued common units or other common equity interests of each Topco purchased pursuant to the Reinvestment shall be as set forth on Schedule 1 (as updated pursuant to Section 1.1) under the applicable column under the heading “Topco Interests” (such number of units or other equity interests, the “Topco Interests”);

 

WHEREAS, Star Holdings and each Topco (other than Star Topco) are referred to herein as the “Equity Sellers”;

 

WHEREAS, the Equity Sellers and the Investors agree that the transactions contemplated by this Agreement are intended to, and shall, result in the Investors investing in the Topco Interests through the Reinvestment at the same price per unit (or other equity interest) at which the Sponsor Parties shall acquire such Topco Interests;

 

WHEREAS, concurrently with the execution of this Agreement, the Investors, Sycamore Parent, and Sycamore Merger Sub and certain other affiliates of Sycamore are entering into an interim investors agreement governing the parties’ rights and obligations with respect to the Transactions, including the Merger and the Restructuring, prior to the Merger Closing (the “Interim Investors Agreement”); and

 

WHEREAS, immediately prior to the Reinvestment Closing (as defined below), each Equity Seller will enter into a joinder to this Agreement in form and substance reasonably acceptable to the Investors and Sycamore Parent, pursuant to which such Equity Seller will agree to issue or sell the applicable Topco Interests to the Investors on the terms and conditions set forth herein and take the other actions required to be taken by such Equity Seller hereunder.

 

NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

 

AGREEMENT

 

Section 1.               Reinvestment.

 

1.1            Closing of the Reinvestment Investment. On the terms and conditions set forth herein, immediately following the consummation of the Merger and the Restructuring, (a) the Investors shall pay to each Equity Seller, by wire transfer of immediately available funds to an account or accounts designated in writing by Sycamore Parent prior to the Merger Closing, an amount of cash equal to the amount set forth for each Equity Seller on the Allocation Schedule (as defined below), which amounts in the aggregate shall equal the Aggregate Equity Investment Amount and will be allocated pro rata among the Equity Sellers based on the respective equity values of each Topco, as set forth on the Allocation Schedule (as defined below), and (b) each Equity Seller shall issue or sell to the Investors the applicable Topco Interests, free and clear of any and all Liens (other than those transfer restrictions imposed by applicable securities law, the organizational documents of the applicable Topco or the Interim Investors Agreement or the Investors Agreement Documents (as defined in the Interim Investors Agreement)), having an aggregate value equal to the Aggregate Equity Investment Amount, which shall be the same class and series of Topco Interests issued to the Sponsor Parties or their affiliates at the Reinvestment Closing in respect of the applicable Topco, in each case at the same valuation per Topco Interest as applicable to such Sponsor Parties (the foregoing clauses (a) and (b), collectively, the “Reinvestment Closing”). At least three (3) Business Days prior to the Reinvestment Closing, Sycamore Parent shall deliver an allocation schedule (the “Allocation Schedule”) to the Investors specifying (a) the cash amounts to be paid at the Reinvestment Closing to each Equity Seller in respect of the applicable Topco Interests, (b) the equity value of each Topco (including such Topco’s subsidiaries and its and their respective business and operations), as determined by Sycamore Parent in good faith, (c) the resulting price per Topco Interest at which the Investors will acquire the Topco Interests at the Reinvestment Closing and the corresponding number of Topco Interests to be acquired by the Investors from each Equity Seller at the Reinvestment Closing, (d) any documentation to be delivered to any Equity Seller at the Reinvestment Closing pursuant to and in accordance with Section 1.3, and (e) the account or accounts to which the Investors should transfer immediately available funds to be paid at the Reinvestment Closing; provided that, for the avoidance of doubt, (i) the cash amounts set forth on the Allocation Schedule shall equal, in the aggregate, the Aggregate Equity Investment Amount, (ii) the price per Topco Interest set forth on the Allocation Schedule shall be the same price per Topco Interest at which the Sponsor Parties acquire Topco Interests at the Reinvestment Closing, and (iii) the proportion of the common equity interests at each Topco immediately following the Reinvestment Closing held by the Investors, on the one hand, and the Sponsor Parties, on the other hand, shall be the same at each Topco. Promptly following delivery of the Allocation Schedule, but in any event prior to the Reinvestment Closing, the parties hereto shall update Schedule 1 to reflect the number of Topco Interests to be issued or sold at the Reinvestment Closing by each Equity Seller to the Investors as set forth in the Allocation Schedule, and such updated Schedule 1 shall thereafter serve as Schedule 1 for all purposes hereunder and all references to Schedule 1 herein shall be references to Schedule 1 as so updated.  Notwithstanding the foregoing or anything to the contrary herein or in the Interim Investors Agreement or the Investors Agreement Documents (as defined in the Interim Investors Agreement), in the event that a Topco (the “Shields Topco”) acquires the Shields Interests at the Initial Closing in accordance with Section 1.3 of the Merger Agreement (a “Shields Early Closing”), immediately following the Reinvestment Closing with respect to each other Topco (the “Subsequent Shields Reinvestment Closing”), in lieu of an issuance of common equity interests in respect of the Shields Topco, the applicable Sponsor Party (which, for the avoidance of doubt, shall be considered an “Equity Seller” in connection with the sale described in this sentence following the Subsequent Shields Reinvestment Closing) shall transfer and sell to the Investors, and the Investors shall purchase from such Sponsor Party, the number of Topco Interests in the Shields Topco as would have been issuable hereunder in the absence of such Shields Early Closing, at the same price per Topco Interest at which such Sponsor Party acquired such Topco Interests, in exchange for an aggregate amount of cash equal to such portion of the Aggregate Equity Investment Amount as is allocated to the Shields Topco pursuant to the Allocation Schedule (which, for the avoidance of doubt, shall be calculated as set forth in this Section 1.1); provided the proportion of the common equity interests of the Shields Topco immediately following the Subsequent Shields Reinvestment Closing held by the Investors, on the one hand, and the selling Sponsor Party, on the other hand, shall be the same proportion as held by the Investors, on the one hand, and the Sponsor Parties, on the other hand, at each other Topco immediately following the Reinvestment Closing (provided that, in the case of Star Topco, any portion of the Investors’ reinvestment in the form of debt shall be treated as if it had been in the form of common equity interests immediately following the Reinvestment Closing).

 

 

1.2            Topco Deliveries. At the Reinvestment Closing (and, if applicable, at the Subsequent Shields Reinvestment Closing), each Equity Seller shall deliver to the Investors customary documentation reasonably satisfactory to the Investors evidencing (a) the issuance or sale of the Topco Interests to the Investors (and, to the extent applicable, the admission of the Investors to the applicable Topco), and (b) the issuance of any Topco Interests to any Sponsor Party, the price per Topco Interest paid by such Sponsor Party and satisfaction of the payment of the aggregate subscription price for such Topco Interests.

 

1.3            Investor Deliveries. At the Reinvestment Closing (and, if applicable, at the Subsequent Shields Reinvestment Closing), each Investor shall deliver to each Equity Seller (a) an applicable and properly executed Internal Revenue Service Form W-8 (together with any required attachments, to the extent applicable) and (b) such other documentation as may be necessary or reasonably advisable for the Equity Sellers or any of their affiliates to reduce or eliminate withholding or other taxes or comply with any tax or information reporting regime and that are requested by any Equity Seller no later than the date on which Sycamore Parent delivers the Allocation Schedule prior to the Reinvestment Closing.

 

Section 2.               Representations and Warranties of Sycamore Parent. Sycamore Parent hereby represents and warrants to the Investors, as of the date hereof (except as expressly made only as of the Reinvestment Closing), and as of the Reinvestment Closing, as follows:

 

2.1            Organization. Sycamore Parent is, and as of the Reinvestment Closing (and, if applicable, as of the Subsequent Shields Reinvestment Closing), Parent and each Topco will be, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization. Each Topco will have as of the Reinvestment Closing (and, if applicable, as of the Subsequent Shields Reinvestment Closing, Shields Topco will have) all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted and is duly qualified to do business and, where applicable as a legal concept, is in good standing as a foreign corporation in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification legally required, except for such failures to be so organized, qualified or in good standing, individually or in the aggregate, that have not had and would not be reasonably likely to be materially adverse to such Topco following the Effective Time. Sycamore Parent will have provided the Investors with true and correct copies of the organizational documents for each Topco prior to the Reinvestment Closing.

 

 

2.2            Authority; Enforceability. Sycamore Parent has, and as of the Reinvestment Closing (and, if applicable, as of the Subsequent Shields Reinvestment Closing), Sycamore Parent and each Equity Seller will have, all requisite power and authority to execute, perform and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, and to consummate the transactions contemplated herein and therein. The execution, delivery and performance of this Agreement and such other agreements or instruments, and the consummation of the transactions contemplated herein and therein, has been duly and validly authorized by all necessary corporate (or similar) action on the part of Sycamore Parent and, as of the Reinvestment Closing (and, if applicable, as of the Subsequent Shields Reinvestment Closing), will have been, duly and validly authorized by all necessary corporate (or similar) action on the part of each Equity Seller. This Agreement constitutes, and each of such other agreements or instruments will constitute, when executed and delivered by Sycamore Parent, assuming the due authorization, execution and delivery hereof by the other parties hereto, the legal, valid and binding obligation of Sycamore Parent, enforceable against Sycamore Parent in accordance with their respective terms, except as such enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors, and general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at law (such effects and principles, “Equitable Principles”). This Agreement and each of such other agreements or instruments will constitute, when executed and delivered by each Equity Seller, assuming the due authorization, execution and delivery hereof by the other parties hereto, the legal, valid and binding obligation of such Equity Seller, enforceable against such Equity Seller in accordance with their respective terms, except as such enforceability may be subject to Equitable Principles.

 

 

2.3            Interests Duly Authorized. All of the Topco Interests to be issued or sold to the Investors under this Agreement, when issued or sold in accordance with the terms of this Agreement, will be duly authorized, validly issued and fully paid-up, in compliance with applicable law or exemptions therefrom. Following compliance with the obligations set forth in Section 1.1, the Investors shall have good, valid, and marketable title to the Topco Interests, free and clear of all Liens, other than (a) those transfer restrictions imposed by applicable securities law or contemplated by this Agreement, the organizational documents of the applicable Topco or the Investor Agreement Documents (as defined in the Interim Investors Agreement) or (b) as a result of any action taken by the Investors or their Affiliates.

 

2.4            No Conflicts; No Consents. The authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein by Parent and each Equity Seller will not, with or without the giving of notice or passage of time or both, violate, conflict with or result in the material breach of (i) any of the organizational documents of Parent or such Equity Seller, as applicable, (ii) any law applicable to Parent or such Equity Seller, as applicable or any of Parent’s or such Equity Seller’s assets or properties, as applicable (iii) any judgment, decree, writ, injunction, order or award of any Governmental Entity binding upon Parent or such Equity Seller or any of Parent’s or such Equity Seller’s assets or properties, as applicable or (iv) any agreement to which Parent or such Equity Seller is a party or by which any of its assets or properties is bound. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Entity, or any other Person, on the part of Parent or any Equity Seller is required to be made or obtained in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, other than as provided in the Merger Agreement with respect to the Merger and the other Transactions or as contemplated by the Interim Investors Agreement.

 

2.5            Ownership of the Topcos. Immediately prior to the Reinvestment Closing (and, if applicable, the Subsequent Shields Reinvestment Closing), Sycamore Parent or another Sponsor Party will own all of the issued and outstanding common equity interests of each Topco and immediately after the Reinvestment Closing (and, if applicable, immediately after the Subsequent Shields Reinvestment Closing), none of the issued and outstanding common equity interests of any Topco will be owned by any person other than the Investors, Sycamore Parent or another Sponsor Party.

 

 

2.6            No Other Representation. No Topco has received any representations or warranties, written or oral, from the Investors or any other Person acting on behalf of the Investors, other than those contained in Section 3 of this Agreement.

 

Section 3.               Representations and Warranties of the Investors. The Investors hereby represent and warrant to Sycamore Parent, as of the date hereof and as of the Reinvestment Closing, as follows:

 

3.1            Ownership and Title of Existing Shares. The Investors are the sole record or beneficial owner of the Existing Shares, having good and marketable title thereto, free and clear of any Liens, other than those transfer restrictions imposed by applicable securities Law or contemplated by the Company’s organizational documents, the Voting Agreement, the Interim Investors Agreement or the Company Shareholders Agreement (as defined in the Merger Agreement) (which, in any event, will not affect, delay or prevent the Reinvestment), and no Person has a right to acquire any of such securities. Except as contemplated under this Agreement, the Merger Agreement or the Interim Investors Agreement, there are no outstanding subscriptions, options, warrants, rights, calls, Contracts, commitments, understandings or agreements to purchase or otherwise acquire, or relating to the issuance of, any of the Investors Existing Shares.

 

3.2            Authority; Enforceability. The Investors have all requisite corporate (or similar) power, legal capacity and authority to execute, deliver and perform this Agreement and any other agreements or instruments to be executed by the Investors in connection herewith and to consummate the transactions contemplated herein and therein. This Agreement constitutes (and, when executed and delivered by the Investors, each of such other agreements or instruments will constitute) assuming the due authorization, execution and delivery hereof by Sycamore Parent and each Equity Seller, the legal, valid and binding obligation of the Investors, enforceable against it in accordance with their respective terms, except as such enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors, and general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at law. Each Investor (other than SP) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization. There are no consents of any other Person (other than the signatories hereto) that have not already been obtained that are required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

3.3            Investment Intent. The Investors are acquiring the Topco Interests for the Investors’ own account as principal, for investment purposes only, not for any other Person and not for the purposes of resale or distribution. The Investors are not subscribing for the Topco Interests from the Equity Sellers in a fiduciary capacity.

 

 

3.4            Financial Status. Each Investor is (i) an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act or (ii) an entity in which all equity owners are “accredited investors” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. The Investors are able to bear the economic risk of an investment in the Topco Interests for an indefinite period of time and understand that the Topco Interests have not been registered under the Securities Act and, therefore, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. The Investors have received no advice from the Sponsor Parties or any Equity Seller or any of their respective affiliates as to the legal, investment or tax consequences of the Reinvestment contemplated by this Agreement or the Investors’ investment in the Topco Interests.

 

3.5            Access to Information. The Investors have been given the opportunity to ask questions of and receive answers from the Sponsor Parties and their representatives concerning (i) the terms and conditions of the issuance of the Topco Interests and the other transactions contemplated in connection with the Reinvestment and (ii) the financial condition, operation and prospects of each Topco and its subsidiaries after giving effect to the Merger and the Restructuring.

 

3.6            No Other Representation. The Investors have received no other representations or warranties, written or oral, from the Company or the Sponsor Parties or any other Person acting on behalf of the Company or the Sponsor Parties, other than those contained in Section 2 of this Agreement.

 

3.7            No Conflicts; No Consents. The authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein by the Investors do not, and will not, (a) result in the material breach of (i) other than with respect to SP, any of the Investors’ organizational documents, (ii) any law applicable to any Investor or any of such Investor’s assets or properties, (iii) any judgment, decree, writ, injunction, order or award of any Governmental Entity binding upon such Investor or any of such Investor’s assets or properties, or (iv) any agreement to which such Investor is a party or by which any of its assets or properties is bound; or (b) violate, conflict with or result in the material breach of any term or provision of, require any material notice or consent under, give rise to a right of termination of, constitute a material default (or event which with or without the giving of notice or passage of time or both, would become a material breach) under, result in the acceleration of, or give rise to a right to accelerate any obligation under, any material Contract to which the Investors are party. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Entity, or any other Person, on the part of any Investor is required to be made or obtained in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, other than as provided in the Merger Agreement with respect to the Merger and the other Transactions or as contemplated by the Interim Investors Agreement.

 

Section 4.               Agreements and Acknowledgements of the Investors. The Investors hereby agree and acknowledge to Sycamore Parent as follows:

 

4.1            No Registration. The Investors understand and agree that the Topco Interests are being acquired by the Investors in a transaction not involving any public offering within the meaning of the Securities Act, in reliance on an exemption therefrom. The Investors understands that the Topco Interests have not been, and will not be, approved or disapproved by the Securities and Exchange Commission or by any other federal, state or international agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to the Investors by the Sponsor Parties or any Topco. No federal or state governmental agency has passed on or made any recommendation or endorsement of the Topco Interests or an investment in the Topco Interests.

 

 

4.2            Limitations on Disposition and Resale. The Investors understand and acknowledge that the Topco Interests have not been and will not be registered under the Securities Act, or the securities laws of any state and, unless the Topco Interests are so registered, they may not be offered, sold, transferred or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. The Investors agree not to sell, transfer or otherwise dispose of the Topco Interests unless the Topco Interests have been so registered or an exemption from the requirement of registration is available under the Securities Act or any applicable state or foreign securities Laws. The Investors further acknowledge and agree that their ability to dispose of the Topco Interests will be subject to restrictions contained in the organizational documents of the applicable Topco and the Investors Agreement Documents (as defined in the Interim Investors Agreement). The Investors agree that the Topco Interests received in the Reinvestment may be required to bear appropriate legends with respect to the foregoing restrictions. The Investors recognize that there will not be any public trading market for the Topco Interests and, as a result, the Investors may be unable to sell or dispose of their interests in the Topcos. The Investors further acknowledge and agree that no Topco shall have any obligation to register any Topco Interests or other interests in any Topco into which Topco Interests may be convertible.

 

4.3.            Other Agreements and Acknowledgements. The Investors agree that they shall, upon request, execute and deliver any additional documents or instruments or take, or cause to be taken, such other actions as may be reasonably deemed by the Sycamore Parent to be necessary or advisable to carry out the intent or purposes of this Agreement.

 

Section 5.               Tax Treatment. Subject to the terms of the Interim Investors’ Agreement, for U.S. federal income tax purposes (and for purposes of any applicable state or local income tax that follows the U.S. federal income tax treatment), each of the parties to this Agreement intend that the Investors be treated as having sold all of their Existing Shares in the Merger in a fully taxable transaction and as having acquired equity interests of the Topcos in accordance with this Agreement.

 

Section 6.               Governing Law. This Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, shall be governed by the internal laws of the State of Delaware applicable to agreements made and to be performed entirely within such state, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction.

 

 

Section 7.               Consent to Jurisdiction. Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts (as defined below)) in any legal proceeding relating to this Agreement, for and on behalf of itself or any of its properties or assets, in accordance with Section ‎8 or in such other manner as may be permitted by applicable law, and nothing in this Section 7 will affect the right of any party to serve legal process in any other manner permitted by applicable law; (ii) irrevocably and unconditionally consents and submits itself and its properties and assets in any legal proceeding to the exclusive general jurisdiction of the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware) (the “Chosen Courts”) in the event that any dispute or controversy arises out of this Agreement or the transactions contemplated hereby; (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (iv) agrees that any legal proceeding arising in connection with this Agreement or the transactions contemplated hereby will be brought, tried and determined only in the Chosen Courts; (v) waives any objection that it may now or hereafter have to the venue of any such legal proceeding in the Chosen Courts or that such legal proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (vi) agrees that it will not bring any legal proceeding relating to this Agreement or the transactions contemplated in any court other than the Chosen Courts. Each of the parties hereto agrees that a final non-appealable judgment in any legal proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 

 

Section 8.               Notices. All notices and other communications provided for herein shall be in writing and shall be delivered either by hand, by reputable overnight courier service or by email with confirmation of delivery (in portable document format (“pdf”)) as follows:

 

	(a)	If to Sycamore Parent, then to:
	Blazing Star Parent, LLC
	c/o Sycamore Partners Management, L.P. 9 West 57th Street, 31st Floor New York, NY 10019
	Email:	rmcclendon@sycamorepartners.com
		kburke@sycamorepartners.com
		jwoodworth@sycamorepartners.com
		smurphy@sycamorepartners.com
	Attn:	Ryan McClendon
		Kevin Burke
		John D. Woodworth
		Sean Murphy

	with a copy, which shall not constitute notice, to:
	Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017
	Attn:	Brian Wolfe
		Darren Schweiger
		Michael Senders
	Email:	brian.wolfe@davispolk.com
		darren.schweiger@davispolk.com
		michael.senders@davispolk.com

 

 

	(b)	If to the Investors, then to the address as set forth on the Investors’ signatures page hereto with a copy, which shall not constitute notice, to:
	The Family Office
	24, boulevard du Ténao
	98000 Monaco
	Attention: Ben Burman
	Email:bburman@burman-avocat.com
	and
	Debevoise & Plimpton LLP
	66 Hudson Boulevard
	New York, New York 10001
	Attn:	Jeffrey J. Rosen
		Gordon S. Moodie
		Emily F. Huang
	Email:	jrosen@debevoise.com
		gsmoodie@debevoise.com
		efhuang@debevoise.com

 

All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered and received hereunder (i) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; or (ii) immediately upon delivery by hand or by email transmission with confirmation of delivery. Any notice received at the addressee’s location, or by email at the addressee’s email address, on any Business Day after 5:00 p.m., addressee’s local time, or on any day that is not a Business Day will be deemed to have been delivered and received at 9:00 a.m., addressee’s local time, on the next Business Day.

 

Section 9.               Binding Effect; Assignment. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the each of the parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by (a) the Investors without the prior written consent of the Sycamore Parent (provided that any Investor may assign their rights and obligations hereunder to any transferee to which it transfers the Existing Shares pursuant to and in compliance with Section 2.4 of the Interim Investors’ Agreement provided that (i) such transferee signs a joinder to this Agreement agreeing to be bound by the terms hereof and (ii) such assignment shall not relieve such Investor of its obligations hereunder) or (b) Sycamore Parent without the prior written consent of the Investors.

 

Section 10.               Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement shall become binding when one or more counterparts taken together shall have been executed and delivered by all of the parties. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission (such as by electronic mail in “.pdf” form) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

 

Section 11.               Entire Agreement. This Agreement, together with the Merger Agreement, the Voting Agreement and the Interim Investors’ Agreement (including the Exhibits, Schedules and Annexes to each of the foregoing), constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements and understandings with respect thereto, both written and oral.

 

Section 12.               Termination of this Agreement. This Agreement shall terminate and no longer have any force or effect upon the mutual written consent of Sycamore Parent, the Investors and the Company and this Agreement shall terminate automatically, without any action of the parties hereto, upon the valid termination of the Merger Agreement in accordance with its terms.

 

Section 13.               Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled under this Agreement or otherwise at law or in equity, without the necessity of proving the inadequacy of money damages as a remedy. Each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy and agrees that it will not oppose the granting of an injunction, specific performance or any other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.

 

Section 14.               No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and their respective successors and permitted assigns, and no other Person, including any party to the Merger Agreement, shall have any right, benefit, priority or interest, as third party beneficiary or otherwise, in, under or because of the existence of, this Agreement; provided that, notwithstanding the foregoing or anything in this Agreement to the contrary, the parties hereto acknowledge and agree that the Company is an express third party beneficiary (i) for purposes of enforcing the Investors’ obligations to cause the Aggregate Equity Investment Amount to be funded at the Reinvestment Closing (or, if applicable, at the Subsequent Shields Reinvestment Closing), and (ii) of Section 12, Section 13, this Section 14 and Section 17, in each case, on the terms and subject to the conditions set forth herein.

 

Section 15.               Further Assurances. Subject to the terms and conditions provided herein, each party hereto agrees to use all commercially 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, whether under applicable laws or otherwise, in order to consummate and make effective the transactions contemplated by this Agreement.

 

Section 16.               Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties hereto further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

 

Section 17.               Amendment. This Agreement may be amended by the parties hereto, and the terms and conditions hereof may be waived, only by an instrument in writing signed on behalf of each of the parties hereto, or, in the case of a waiver, by an instrument signed on behalf of the party waiving compliance; provided that such amendments, modifications or waivers shall also require the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed).

 

[Signature pages follow.]

 

 

IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.

 

	BLAZING STAR PARENT, LLC
	By:	/s/ Kevin Burke
	Name:	Kevin Burke
	Title:	Co-President

 

[Signature Page to Reinvestment Agreement]

 

 

	INVESTORS:
	STEFANO PESSINA
	/s/ Stefano Pessina
	Address:
	c/o The Family Office
	24, boulevard du Ténao
	98000 Monaco
	Email: paolo.ferretto@ergeny.com
	Alliance Santé Participations S.A.
	By:	/s/ Simone Retter
	Name:	Simone Retter
	Title:	Président (Chairman)
	By:	/s/ Stefano Pessina
	Name:	Stefano Pessina
	Title:	Administrateur (Director)
	Address:
	14, avenue du X Septembre
	L-2550 Luxembourg
	Grand Duchy of Luxembourg
	Email: ben.burman@ergeny.com

 

[Signature Page to Reinvestment Agreement]

 

 

Exhibit (r)

 

EXECUTION VERSION

 

INTERIM INVESTORS AGREEMENT

 

by and among

 

Sycamore Partners III, L.P.,

 

Sycamore Partners III-A, L.P.,

 

Sycamore Partners Wing Co-Invest, L.P.,

 

Blazing Star Parent, LLC,

 

Blazing Star Merger Sub, Inc.,

 

Stefano Pessina,

 

and

 

Alliance Santé Participations S.A.

 

Dated as of March 6, 2025

 

 

TABLE OF CONTENTS
		Page
ARTICLE I EFFECTIVENESS; DEFINITIONS		2
1.1.	Effectiveness	2
1.2.	Definitions	2
1.3.	Other Definitional and Interpretive Matters	5
1.4.	Absence of Presumption	5
1.5.	Headings	5
ARTICLE II AGREEMENTS AMONG THE INVESTORS		6
2.1.	Actions Under the Merger Agreement; Information	6
2.2.	Investors Agreement	6
2.3.	Equity Commitments; Reinvestment Commitments	6
2.4.	Transfer	7
2.5.	Expenses	8
2.6.	Company Termination Fee	9
2.7.	Limited Liability of the SP Investors	9
2.8.	Representations, Warranties and Covenants	10
2.9.	Waiver of Appraisal Rights; Further Assurances	12
2.10.	Regulatory Matters	13
2.11.	Certain Tax Matters	14
2.12.	Voting Agreement	14
2.13.	DAP Rights Agreement; Sale Committee	14
2.14.	Organizational Documents	14
2.15.	Termination of Affiliate Agreements	15
ARTICLE III MISCELLANEOUS		15
3.1.	Notices	15
3.2.	Amendment	16
3.3.	Severability	16
3.4.	Remedies	16
3.5.	No Recourse	17
3.6.	No Third Party Beneficiaries	17
3.7.	Confidentiality	18
3.8.	Press Release; Communications	18
3.9.	Governing Law; Consent to Jurisdiction	19
3.10.	WAIVER OF JURY TRIAL	19
3.11.	Exercise of Rights and Remedies	20
3.12.	Other Agreements; Assignment	20
3.13.	No Representations or Duty	20
3.14.	Counterparts	20
3.15.	General	20

 

 

This INTERIM INVESTORS AGREEMENT (this “Agreement”) is made as of March 6, 2025, by and among Sycamore Partners III, L.P., a Cayman Islands exempted limited partnership, Sycamore Partners III-A, L.P., a Cayman Islands exempted limited partnership, Sycamore Partners Wing Co-Invest, L.P., a Delaware limited partnership (each of the foregoing, a “Saturn Investor”), Blazing Star Parent, LLC, a Delaware limited liability company (“Parent”), Blazing Star Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), Mr. Stefano Pessina, a Monégasque citizen (“SP”), and Alliance Santé Participations S.A., a Luxembourg société anonyme (“ASP” and, ASP together with SP, the “SP Investors”; the Saturn Investors and the SP Investors are collectively referred to as the “Investors”).

 

RECITALS

 

WHEREAS, on the date hereof, Parent, Merger Sub, Walgreens Boots Alliance, Inc., a Delaware corporation (the “Company”) and the other parties identified therein, have entered into an Agreement and Plan of Merger (as amended or modified from time to time in compliance with this Agreement, the “Merger Agreement”) pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent;

 

WHEREAS, each of the Saturn Investors, on the date hereof, executed an equity financing commitment letter in favor of Parent (as amended or modified from time to time in compliance with this Agreement and the terms thereof, the “Saturn Equity Funding Letter”) in which the Saturn Investors have agreed, subject to the terms and conditions set forth therein, to fund its portion of the Saturn Equity Funding Commitment to Parent;

 

WHEREAS, the SP Investors have, on the date hereof, executed a reinvestment agreement with Parent (as amended or modified from time to time in compliance with this Agreement and the terms thereof, the “Reinvestment Agreement”) in which the SP Investors and Parent have agreed, subject to the terms and conditions set forth therein, to consummate the Reinvestment, with the result that the Equity Sellers will sell or issue, as applicable, Topco Interests to ASP (or a designated subsidiary of ASP) (x) in lieu of the SP Investors receiving the cash portion of the Merger Consideration and (y) against contribution of additional cash, in an amount as set forth in the Reinvestment Agreement;

 

WHEREAS, each of the Saturn Investors, on the date hereof, executed a limited guaranty in favor of the Company (the “Limited Guaranty”) relating to certain of Parent’s obligations under the Merger Agreement, in the event that the Merger is not consummated, including payment of any eventual Parent Termination Fee and certain other indemnification and reimbursement obligations pursuant to the Merger Agreement as set forth therein; and

 

WHEREAS, the Investors, Parent and Merger Sub wish to agree to certain terms and conditions that will govern the actions of Parent and Merger Sub and the relationship among the Investors with respect to the Merger Agreement, the Saturn Equity Funding Letter, the Reinvestment Agreement and the Limited Guaranty, and the transactions contemplated by each.

 

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I
EFFECTIVENESS; DEFINITIONS

 

1.1.              Effectiveness. This Agreement shall become effective on the date hereof and shall terminate upon the earlier of (a) the later of (x) the Merger Closing and (y) the entry into definitive Investors Agreement Documents by the relevant parties and (b) the termination of the Merger Agreement in accordance with its terms; provided, however, that notwithstanding the foregoing:

 

1.1.1            the provisions set forth in Article ‎I (Effectiveness; Definitions), Section ‎2.3.4 (certain payments), Sections ‎2.5.1 and 2.5.3 (Expenses) and Article ‎III (Miscellaneous) shall remain in full force and effect and survive any termination of this Agreement pursuant to the foregoing clause (a) in accordance with its terms;

 

1.1.2            the provisions set forth in Article ‎I (Effectiveness; Definitions), Section ‎2.1‎ (Actions Under the Merger Agreement), Section ‎2.3.4 (certain payments), Section ‎2.5.2 (Expenses), Section ‎2.6 (Company Termination Fee), Section ‎2.7 (Limited Liability of the SP Investors), Section ‎2.8 (Representations and Warranties) and Article ‎III (Miscellaneous) shall remain in full force and effect and survive any termination of this Agreement pursuant to the foregoing clause (b) in accordance with its terms; and

 

1.1.3            any liability for failure to comply with this Agreement shall survive termination of this Agreement.

 

1.2.              Definitions.

 

1.2.1            Certain terms are used in this Agreement as specifically defined herein. Capitalized terms used herein but not defined shall have the meanings given to them in the Merger Agreement.

 

1.2.2            For purposes of this Agreement, the following terms shall have the following meanings:

 

“Agreement” has the meaning ascribed thereto in the Preamble.

 

“ASP” has the meaning ascribed thereto in the Preamble.

 

“ASP Permitted Transferee” has the meaning ascribed thereto in Section 2.4.

 

“Code” has the meaning ascribed thereto in Section ‎2.11.

 

“Company” has the meaning ascribed thereto in the Recitals.

 

 

“Confidential Information” has the meaning ascribed thereto in Section ‎3.7.

 

“DGCL” means the General Corporation Law of the State of Delaware.

 

“Equity Sellers” has the meaning ascribed thereto in the Reinvestment Agreement.

 

“Equity Syndication” has the meaning ascribed thereto in Exhibit A.

 

“Funding Percentage” means (a) with respect to the Saturn Investors, the percentage obtained by dividing the Saturn Equity Funding Commitment by the aggregate amount of equity commitments pursuant to the Investor Commitment Agreements and (b) with respect to the SP Investors, the percentage obtained by dividing the Reinvestment Commitment by the aggregate amount of equity commitments pursuant to the Investor Commitment Agreements, in each case, as may be adjusted to reflect actual funding at Merger Closing and subsequent sales of equity interests by the Investors; provided that any portion of the Investors’ investment at Merger Closing in the form of debt shall be treated as if it had been in the form of common equity interests immediately following the Reinvestment Closing for purposes of calculating such Investor’s Funding Percentage.

 

“Investor Commitment Agreements” mean the Reinvestment Agreement and the Saturn Equity Funding Letter, copies of which are attached hereto as Exhibit B-1 and Exhibit B-2, respectively.

 

“Investor Related Parties” means the SP Related Parties and the Saturn Related Parties and “Investor Related Party” means any one of them.

 

“Investors” has the meaning ascribed thereto in the Preamble.

 

“Investors Agreement Documents” has the meaning ascribed thereto in Section ‎2.2.

 

“law” has the meaning ascribed thereto in the Merger Agreement.

 

“Limited Guaranty” has the meaning ascribed thereto in the Recitals.

 

“Merger” has the meaning ascribed thereto in the Recitals.

 

“Merger Agreement” has the meaning ascribed thereto in the Recitals.

 

“Merger Sub” has the meaning ascribed thereto in the Recitals.

 

“Parent” has the meaning ascribed thereto in the Preamble.

 

“Parent Damages” has the meaning ascribed thereto in Section ‎2.7.

 

“Real Estate Blockers” means the four Delaware limited liability companies formed to hold interests in the Topco holding real estate pursuant to the Restructuring (as defined in the Reinvestment Agreement).

 

“Reinvestment” has the meaning ascribed thereto in the Reinvestment Agreement.

 

 

“Reinvestment Agreement” has the meaning ascribed thereto in the Recitals.

 

“Reinvestment Closing” has the meaning ascribed thereto in the Reinvestment Agreement.

 

“Reinvestment Commitment” means the Aggregate Equity Investment Amount (as defined in the Reinvestment Agreement).

 

“Reinvestment Shares” has the meaning set forth in Section ‎2.8.3(a).

 

“Representatives” means, with respect to any person, such person’s subsidiaries and their respective controlling persons, members, general partners, officers, directors, employees, consultants, agents, advisors, Affiliates and other representatives of any of the foregoing.

 

“Saturn Equity Funding Commitment” means the Aggregate Commitment (as defined in the Saturn Equity Funding Letter).

 

“Saturn Equity Funding Letter” has the meaning ascribed thereto in the Recitals.

 

“Saturn Investor” has the meaning ascribed thereto in the Preamble.

 

“Saturn Related Party” means the Saturn Investors and any of their successors or assigns, or any former, current or future direct or indirect equityholders, controlling persons, stockholders, directors, officers, employees, Affiliates, members, managers, general or limited partners, agents, attorneys, advisors or other representatives or successors or assignees of any of the foregoing.

 

“Star Topco” has the meaning ascribed thereto in the Reinvestment Agreement.

 

“SP” has the meaning ascribed thereto in the Preamble.

 

“SP Investors” has the meaning ascribed thereto in the Preamble.

 

“SP Permitted Transfer” has the meaning ascribed thereto in Section 2.4.

 

“SP Related Party” means the SP Investors and any of their successors or assigns, or any former, current or future direct or indirect equityholders, controlling persons, stockholders, directors, officers, employees, Affiliates, members, managers, general or limited partners, agents, attorneys, advisors or other representatives or successors or assignees of any of the foregoing.

 

“Topco” has the meaning ascribed thereto in the Reinvestment Agreement.

 

“Topco Interests” has the meaning ascribed thereto in the Reinvestment Agreement.

 

“Transaction Agreements” has the meaning ascribed thereto in Section ‎2.1.

 

“Transaction Expenses” has the meaning ascribed thereto in Section ‎2.5.1.

 

 

“Transaction Litigation” has the meaning ascribed thereto in Section 2.5.3.

 

“Transfer” has the meaning ascribed thereto in Section ‎2.4.

 

“Voting Agreement” has the meaning ascribed thereto in Section ‎2.12.

 

1.3.         Other Definitional and Interpretive Matters. Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time. When used herein:

 

1.3.1        the word “or” is not exclusive unless the context clearly requires otherwise;

 

1.3.2        the word “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the direct or indirect possession of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise;

 

1.3.3        the words “including,” “includes,” “included” and “include” are deemed to be followed by the words “without limitation”;

 

1.3.4        the terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision; and

 

1.3.5        all section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex and schedule references not attributed to a particular document shall be references to such exhibits, annexes and schedules to this Agreement.

 

1.4.         Absence of Presumption. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.

 

1.5.         Headings. The section and article headings contained in this Agreement are inserted for convenience of reference only and will not affect the meaning or interpretation of this Agreement.

 

 

ARTICLE II
AGREEMENTS AMONG THE INVESTORS

 

2.1.          Actions Under the Merger Agreement; Information. Prior to the Effective Time, the Saturn Investors shall not, without the prior written consent of the SP Investors, amend, supplement, modify, terminate or waive any rights under or compliance with any covenants, agreements or conditions contained in, or grant any consent with respect to any matter relating to, the Merger Agreement, the DAP Rights Agreement or any related exhibits, schedules, annexes, documents, agreements and instruments including those relating to the Topcos (collectively, the “Transaction Agreements”), in each case not to be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, and except as otherwise provided herein, the Saturn Investors shall not without the prior written consent of the SP Investors (not to be unreasonably withheld, conditioned or delayed), amend, supplement, modify or terminate, any of the Financing Letters. The Saturn Investors shall keep the SP Investors informed on a current basis and in reasonable detail, upon the request of the SP Investors, of (x) the status of their efforts to arrange the Debt Financing and the Preferred Equity Financing and shall provide to the SP Investors complete, correct and executed copies of the material definitive documents for the Debt Financing (including the Debt Commitment Letters and the fee letters (which shall be unredacted) referred to in any Debt Commitment Letter) and the Preferred Equity Financing and (y) the tax structuring steps proposed to be taken to implement the Transactions and the Carveout Transactions and shall provide the SP Investors, upon their request, each material draft of any transaction structuring paper prepared by or for Saturn Investors. This Section 2.1 shall terminate immediately if any of the SP Investors or any of their Affiliates is participating in any Acquisition Proposal (including by authorizing a third party to include such participation in any bid submitted to the Company), and the SP Investors will promptly notify the Saturn Investors thereof.

 

2.2.          Investors Agreement. From and after the date hereof, each Investor agrees to negotiate in good faith and enter into, prior to or concurrently with the Merger Closing, one or more investors’ agreements setting forth the terms and conditions governing their respective investments in the Topcos consistent with the terms set forth in Exhibit A and, to the extent necessary, one or more other definitive agreements with respect to such matters as are set forth in Exhibit A, in each case, with such additional or modified terms as the Investors may mutually agree (the “Investors Agreement Documents”). In the event that the Investors Agreement Documents are not executed and delivered by the Investors prior to or at the Merger Closing, (i) each Investor agrees to continue to negotiate in good faith and enter into definitive Investors Agreement Documents as soon as possible following the Merger Closing, in each case, consistent with the terms set forth in Exhibit A, with such additional or modified terms as the Investors may mutually agree, and (ii) until such time as the Investors Agreement Documents may be executed and delivered by the Investors and Parent, each Investor and Parent agrees that the terms and provisions set forth in Exhibit A shall be binding on, and shall govern with respect to, the matters set forth therein and that each of such parties will comply with all of the terms set forth on Exhibit A (including, for the avoidance of doubt, the procedures set forth under “Dispute Resolution” in Exhibit A, which shall govern any dispute between the parties from and after Merger Closing rather than Section 3.9 hereof).

 

2.3.          Equity Commitments; Reinvestment Commitments.

 

2.3.1        Each of the Saturn Investors hereby affirms and agrees that it is bound by the provisions set forth in the Saturn Equity Funding Letter and each SP Investor hereby affirms and agrees that it is bound by the provisions set forth in the Reinvestment Agreement.

 

2.3.2        Prior to the Merger Closing, no Investor shall transfer or assign, directly or indirectly, its obligations and rights under its Investor Commitment Agreement, except (i) in respect of the SP Investors, an assignment in connection with an SP Permitted Transfer pursuant to and in accordance with Section ‎2.4, (ii) in respect of the Saturn Investors, an assignment of its commitment to one or more Saturn Syndication Vehicles (as defined in Exhibit A) or (iii) as expressly agreed in writing by the Investors; provided that no such transfer or assignment will relieve the transferring Investor of its obligations hereunder or under its respective Investor Commitment Agreement.

 

 

2.3.3        In the event that the Investors determine that the aggregate equity capital necessary for Parent and/or Merger Sub to effect the consummation of the transactions contemplated by the Merger Agreement and to pay any and all fees and expenses in connection therewith is less than the aggregate committed amount of equity pursuant to the Investor Commitment Agreements, the amount of such reduction shall be jointly agreed by the Investors; provided, further, that, without the prior written consent of the SP Investors (acting in their sole discretion), in no event can the aggregate amount of capital invested (including by way of forgoing the right to receive the cash portion of the Merger Consideration) by the SP Investors (and any of their controlled Affiliates) be reduced to an amount less than US$ 1,745,000,000 (one billion seven hundred forty-five million US dollars).

 

2.3.4        To the extent that Sycamore Partners Management L.P. or any of its Affiliates enter into an agreement with Parent, any Topco, or any of their Subsidiaries or the Company relating to the payment of any transaction fee in connection with the Merger Closing or any ongoing monitoring or management fees, in each case, in favor of Sycamore Partners Management L.P. or any of its Affiliates, the Saturn Investors and the SP Investors shall enter into an arrangement to provide the SP Investors with the right to receive a pro rata portion of such fees in accordance with the aggregate Funding Percentage of the SP Investors, any such fee to be paid to such designee (provided such designee is an Affiliate of SP) as SP may direct, and otherwise, except as expressly agreed by the SP Investors, at the same time and pari passu as such fees are paid to Sycamore Partners Management L.P. or any of its Affiliates.

 

2.4.         Transfer. The SP Investors hereby agree not to, directly or indirectly, sell, transfer, pledge, assign, hedge, swap or otherwise encumber or dispose of (including by merger or by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise, either voluntarily or involuntarily (collectively, “Transfer”), or enter into any contract, option or other arrangement or understanding with respect to the Transfer of any of the shares of Company Common Stock or other voting securities of the Company owned by the SP Investors or any beneficial or economic interest therein, other than a Transfer by an SP Investor to another SP Investor; provided, however, that nothing herein shall prohibit (i) a Transfer by ASP of all (but not less than all) of its holding of 144,788,821 shares of Company Common Stock to an entity that is a wholly controlled Affiliate of SP (the “ASP Permitted Transferee”) or (ii) a Transfer by SP of his holding of 832,258 shares of Company Common Stock to ASP or to the ASP Permitted Transferee or to a wholly controlled subsidiary of ASP or of such ASP Permitted Transferee (any Transfer described in clause (i) or (ii), an “SP Permitted Transfer”); provided, further, that any Transfer pursuant to Section ‎2.3.2(i) or this Section ‎2.4 shall be permitted only if, as a precondition to such Transfer, the transferee (including, for the avoidance of doubt, the ASP Permitted Transferee) agrees in a writing, reasonably satisfactory in form and substance to Parent and the Saturn Investors, to assume the obligations of the transferring SP Investors with respect to the shares of Company Common Stock so transferred under, and be bound by all of the terms of and obligations under, this Agreement, the Voting Agreement and the Reinvestment Agreement to which the applicable SP Investors are a party; and provided, further, that such assignment shall not relieve the transferor of its obligations under this Agreement. Any purported Transfer in violation of this Agreement with respect to any shares of Company Common Stock or other voting securities of the Company so transferred shall be null and void ab initio.

 

 

2.5.          Expenses.

 

2.5.1        In the event that the Merger is consummated, Parent shall, and Parent and its other Affiliates shall cause the Surviving Corporation and the Topcos to, assume and pay or reimburse each of the Investors for its documented out-of-pocket costs and expenses (including accountants’ and attorneys’ fees and, in the case of the SP Investors, the documented out-of-pocket costs of Ergeny Management S.A.M., being SP’s family office) incurred in connection with the Transaction Agreements, the Merger and the transactions and other agreements contemplated hereby and thereby (“Transaction Expenses”); provided that “Transaction Expenses” shall not include any costs and expenses of the Investors (x) relating to the matters described in Section 2.3.2 or (y) payable to bankers or brokers by the SP Investors or in connection with the transactions in clause (x)).

 

2.5.2        In the event that the Merger Agreement is terminated under circumstances when a Company Termination Fee is not payable and the Company is not otherwise obligated to pay Parent for its expenses pursuant to the Merger Agreement, then upon such termination, each of the Investors shall be responsible for all, and shall not be entitled to seek reimbursement in respect of any, of its own Transaction Expenses.

 

2.5.3        In the event that the Merger is consummated, from and after the Merger Closing, to the fullest extent permitted by applicable law, the Investors shall cause the Topcos and their subsidiaries to indemnify and hold harmless, and advance expenses when and as requested to, any Investor Related Party if such Investor Related Party is made or are threatened to be made a party or are otherwise involved in any stockholder litigation brought or threatened against any Investor Related Party, the Topcos, the Company, any of their Subsidiaries or any of their respective directors or officers relating to the transactions contemplated by the Transaction Agreements (“Transaction Litigation”) in any capacity from and against any and all losses, claims, demands, costs, damages, liabilities, expenses of any nature (including attorneys’ fees and disbursements), judgments, penalties, fines and amounts paid in settlement (including all interest, taxes, assessments and other charges in connection therewith) incurred by such Investor Related Party in connection therewith. The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 2.5.3 shall not be deemed exclusive of any other rights to indemnification or advancement of expenses that the Investor Related Parties may now or in the future be entitled under any by-law, agreement, contract, vote of stockholders or disinterested directors or otherwise of the Topcos, the Company or the Surviving Corporation, both as to action in any of the Investor Related Party’s official capacity and as to action in another capacity while holding such office. To the extent not prohibited by applicable law, Parent shall (and shall cause the Surviving Corporation to) and the Investors shall cause the Topcos and their subsidiaries to, pay the reasonable and documented expenses (including attorneys’ fees) incurred by any Investor Related Party or on its behalf in defending any Transaction Litigation in advance of its final disposition. If a claim for indemnification or advancement of expenses under this Section 2.5.3 is not paid in full within 30 days after a written claim has been received by Parent, the Surviving Corporation, the Topcos, or any of their Subsidiaries, an Investor Related Party may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, Parent, the Topcos and the Surviving Corporation as applicable shall have the burden of proving that such Investor Related Party is not entitled to the requested indemnification or advancement of expenses. The Investors agree that the organizational documents of Parent, the Topcos, and their respective subsidiaries (including the Surviving Corporation) shall reflect the foregoing.

 

 

2.6.          Company Termination Fee.

 

2.6.1        In the event that the Merger Agreement is terminated and a Company Termination Fee is payable by the Company or any if its Affiliates to Parent, Merger Sub or any of their designees pursuant to the Merger Agreement, or any other amounts other than the Company Termination Fee are payable to, or at the direction of or to the designees of, Parent or Merger Sub under or with respect to the Merger Agreement, such payment should be applied (a) first, to pay or reimburse each of the Investors for its Transaction Expenses in proportion to their respective Funding Percentage, (b) second, to the extent of any excess amount after the payment or reimbursement described in clause (a) hereof, the remaining Transaction Expenses and (c) third, to the extent of any excess amount after the payment or reimbursement described in clauses (a) and (b) hereof, to the Saturn Investors.

 

2.7.          Limited Liability of the SP Investors. In the event that the Merger Agreement is terminated and the Parent Termination Fee and/or other losses or damages are paid or are payable pursuant to the Merger Agreement by or on behalf of Parent or Merger Sub, including the indemnification for or reimbursement of certain Company expenses pursuant to the Cooperation Reimbursement Indemnity Provisions, and/or Sections 6.15, 6.16, 6.17, 6.18 and 8.3(d) of the Merger Agreement (such other losses or damages, “Parent Damages”), or any amount is payable pursuant to any Limited Guaranty, (a) the Saturn Investors shall be responsible for 100% of the Parent Termination Fee, such Parent Damages and any such amounts payable pursuant to the Limited Guaranty and (b) the SP Investors shall not be liable or responsible for (i) any portion of the payment or reimbursement of the Parent Termination Fee or any Parent Damages or (ii) any amounts payable pursuant to the Limited Guaranty; provided, however, that nothing in this Section 2.7 shall be construed to limit the liability of the SP Investors in respect of any breach by the SP Investors of this Agreement, the Voting Agreement or the Reinvestment Agreement.

 

 

2.8.          Representations, Warranties and Covenants.

 

2.8.1        Each Investor hereby represents and warrants to the other Investors that:

 

(a)        the execution, delivery and performance of this Agreement and the Investor Commitment Agreement to which it is a party has been duly and validly authorized and approved by all necessary organizational, corporate, limited liability company, partnership, trust or other similar action, and no other proceedings or actions on the part of such Investor are or will be necessary therefor;

 

(b)        this Agreement and the Investor Commitment Agreement to which it is a party have been duly and validly executed and delivered by such Investor and constitute (and will continue to constitute) a legal, valid and binding agreement of such Investor enforceable, in the case of this Agreement, by each other party hereto, or, in the case of the Investor Commitment Agreement to which it is a party, by Parent, against such Investor in accordance with their respective terms (including the terms hereof regarding such enforcement), subject to the Bankruptcy and Equity Exception;

 

(c)        the execution, delivery and performance by such Investor of this Agreement and the Investor Commitment Agreement to which it is a party do not and will not (i) violate its organizational, corporate, limited liability company, partnership, trust or other similar documents, (ii) violate any applicable law or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation or to the loss of any benefit under, any material contract to which such Investor is a party;

 

(d)        such Investor has not entered, and will not enter, into any agreement, arrangement or understanding with any other potential investor or acquiror or group of potential investors or acquirors of the Company or any of its Subsidiaries, or with the Company, that relates to this Agreement or any of the Transaction Agreements, other than

(i) in connection with the Financing,

(ii) this Agreement and the agreements expressly contemplated by this Agreement (including the Investors Agreement Documents and the Voting Agreement) and all the Exhibits, Schedules and Annexes to any of the foregoing,

(iii) as may be related to the Equity Syndication, or

(iv) any agreement between an SP Investor and the Company publicly disclosed on the date hereof; provided, that this Section ‎2.8.1(d) shall not limit or restrict (x) SP in acting in his capacity as an officer or a director of the Company and exercising his fiduciary duties and responsibilities in his capacity as such or (y) SP or any other SP Investor, prior to the Company Stockholder Approval, from holding discussions or negotiations, or entering into any agreement, arrangement or understanding, in each case, in connection with an Acquisition Proposal to the extent permitted by the Voting Agreement; provided, that in the case of this clause (y), (A) the Company is permitted pursuant to Section 6.1 of the Merger Agreement to engage in discussions with such Persons or groups of Persons regarding an Acquisition Proposal and (B) any such agreement, arrangement or understanding does not prevent SP or the other SP Investors from fulfilling their obligations under Section ‎2.1 and the other provisions of this Agreement, the Investors Agreement Documents and/or the Reinvestment Agreement (unless, in the case of obligations that terminate upon the termination of the Merger Agreement in accordance with its terms, the Merger Agreement is so terminated); and

 

 

(e)        none of the information supplied in writing by or on behalf of such Investor specifically for inclusion or incorporation by reference in the Schedule 13E-3, Proxy Statement or any other filings contemplated by the Merger Agreement will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Section 4.3 of the Merger Agreement.

 

2.8.2        Each of the Saturn Investors hereby represents and warrants to the other Investors that it has, or has access to, and at Merger Closing will have, unfunded capital commitments in an amount not less than the Saturn Equity Funding Commitment and no internal or other approval is required for any of the Saturn Investors, respectively, to fulfill each of its obligations under the Saturn Equity Funding Letter.

 

2.8.3        Each SP Investor hereby represents and warrants to the other Investors that:

 

(a)        as of the date hereof, (i) ASP has good and valid title, free and clear of any Liens (other than any of Lien that would not prevent or delay the SP Investors’ ability to perform their obligations hereunder and under the Voting Agreement and the Reinvestment Agreement), to 144,788,821 shares of Company Common Stock and SP has good and valid title, free and clear of any Liens (other than any of Lien that would not prevent or delay the SP Investors’ ability to perform their obligations hereunder), to 832,258 shares of Company Common Stock (such aggregate of 145,621,079 shares of Company Common Stock, the “Reinvestment Shares”) and (ii) other than the shares of Company Common Stock described in the foregoing clause (i) and other than (x) 1,317,544 shares of Company Common Stock subject to unvested Company RSUs (including shares of Company Common Stock subject to unvested dividend equivalent units credited thereon) beneficially owned by SP and (y) 1,994,010 Company Stock Options owned by SP (all of which are exercisable for a per share exercise price in excess of the Per Share Cash Consideration under the Merger Agreement and will not give rise to the right to receive any amount in cash pursuant to Section 2.3(a) of the Merger Agreement) no SP Investor, any entity directly or indirectly controlled by such SP Investor, or any estate planning trust, partnership or entity of such SP Investor (other than another SP Investor), owns beneficially or of record any shares of Company Common Stock (or any securities convertible into, or exchangeable or exercisable for, any shares of Company Common Stock or any right to receive shares of Company Common Stock with or without the passage of time and/or the satisfaction of any vesting or other conditions) or any interest therein;

 

 

(b)        other than as expressly provided in the Voting Agreement and any agreement between an SP Investor and the Company publicly disclosed on the date hereof, (i) such SP Investor has not entered into, and shall not enter into, any voting agreement or voting trust with respect to any Reinvestment Shares that is inconsistent with such SP Investor’s obligations pursuant to this Agreement, the Voting Agreement and/or the Reinvestment Agreement, and (ii) such SP Investor has not granted, and shall not grant, a proxy or power of attorney with respect to any Reinvestment Shares that is inconsistent with such SP Investor’s obligations pursuant to this Agreement, the Voting Agreement and/or the Reinvestment Agreement.

 

2.8.6        Each Investor agrees to notify Parent and the other Investors promptly in writing of the number of any shares of Company Common Stock, any other voting securities, any options, warrants, restricted stock units or other rights to purchase shares of Company Common Stock or other voting securities of the Company and any other securities convertible into or exercisable or exchangeable for shares of Company Common Stock or other voting securities of the Company acquired by such Investor, if any, after the date hereof (including by purchase, as a result of a stock dividend or distribution, stock split, recapitalization, combination, reclassification, exchange or change of such shares or the like, or upon exercise or conversion of any securities).

 

2.8.7        Each Investor hereby represents and warrants to the other Investors that, other than the Saturn Equity Funding Letter, the Reinvestment Agreement, the Voting Agreement, any agreements between an SP Investor and the Company publicly disclosed on or before the date hereof there are no contracts, undertakings, commitments, agreements, obligations, arrangements or understandings, whether written or oral, between such Investor or any of its Affiliates, on the one hand, and any beneficial owner of outstanding shares of Company Common Stock or any member of the Company’s management or the Company Board, on the other hand, (i) relating in any way to such shares of Company Common Stock, the transactions contemplated by the Merger Agreement, or to the ownership or operations of the Company after the Effective Time or (ii) prohibiting the parties to the Voting Agreement from taking the actions described therein.

 

2.8.8        Each Investor that is an Affiliate of Parent represents and warrants to the other Investors that none of such Investor or any of its Affiliates that is an Affiliate of Parent beneficially owns, directly or indirectly (including pursuant to a derivatives contract), any shares of Company Common Stock or other securities convertible into, exchangeable for or exercisable for shares of Company Common Stock or any securities of any Subsidiary of the Company and none of such Investor or any of its Affiliates that is an Affiliate of Parent has any rights to acquire, directly or indirectly, any shares of Company Common Stock except pursuant to the Merger Agreement, the Reinvestment Agreement and agreements to which the Company is a party.

 

2.9.          Waiver of Appraisal Rights; Further Assurances. Each SP Investor hereby waives any rights of appraisal or rights to dissent from the Merger or demand fair value for its Reinvestment Shares in connection with the Merger, in each case, that such SP Investor may have under applicable law, including pursuant to Section 262 of the DGCL. From time to time, at Parent’s request and without further consideration, each of the Investors shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or desirable to effect the actions and consummate the transactions contemplated by this Agreement. Each of the Investors further agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Topcos, the Company or any of their respective successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger.

 

 

2.10.        Regulatory Matters. Each Investor shall use its reasonable best efforts to supply and provide all information (which information shall be complete and accurate in all material respects) required in connection with any filings or notifications made to or with any Governmental Entity in connection with the Transactions, the Transaction Agreements, this Agreement or the Investors Agreement Documents and the transactions contemplated thereby (including without limitation the Carveout Transactions, the Financing and the Reinvestment), and shall make such filings and take such other actions as are required to, in the case of the Saturn Investors, cause, and in the case of the SP Investors, enable, Parent and Merger Sub to comply with Section 6.4 of the Merger Agreement, and the Saturn Investors shall keep the SP Investors informed with respect thereto. Each Investor shall use its reasonable best efforts to respond in a prompt manner to any requests from any Governmental Entity (including by providing information requested by Parent, Merger Sub or the Company in order to respond to such requests made by a Governmental Entity to Parent, Merger Sub or the Company) in connection with or in response to any such filings or notifications. The SP Investors shall not have any communication relating to the Transactions with any Governmental Entity whose approval is required in connection with the Transactions without the prior written consent of the Saturn Investors, such consent not to be unreasonably withheld; provided that the Saturn Investors will keep the SP Investors reasonably informed regarding any such approvals and will consult in good faith with the SP Investors in connection with any matter directly implicating the SP Investors or their Affiliates; provided, further, that the SP Investors may respond to a request from the applicable Governmental Entity so long as the SP Investors first informs the Saturn Investors of such request and any proposed communication (whether written or oral) in response thereto, provides the Saturn Investors with draft copies in advance (or, in the case of oral communications, advises the Saturn Investors of the intended contents) of any such communication, consults with the Saturn Investors prior to engaging in any such communication, and provides the Saturn Investors with a reasonable opportunity to participate in any discussions with such Governmental Entity (and if the Saturn Investors do not participate, informs the Saturn Investors of any communications with such Governmental Entity in connection therewith), and any such communication is limited to information relating to the SP Investors and their Affiliates. The Saturn Investors shall be responsible for 100% of all filing fees incurred in connection with the HSR Act and any other Antitrust Laws in connection with the Merger Agreement, the Transaction Agreements and the transactions contemplated hereby and thereby. Nothing in this Section 2.10 shall apply to (or limit) any action or inaction by SP in his capacity as a director or officer of the Company or limit or modify the obligations of any Person set forth in Section 6.4 of the Merger Agreement.

 

 

2.11.        Certain Tax Matters.

 

2.11.1      Subject to implementing changes pursuant to Section 2.11.2 hereof, each of the parties agrees that: (i) SP Investors shall be treated for U.S. federal income tax purposes as receiving the cash merger consideration allocable to SP Investors pursuant to the Merger Agreement in a taxable exchange under Section 1001 of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) SP Investors shall be treated for such purposes as purchasing from the Equity Sellers equity (or equity and debt) of the applicable Topco. In addition, each of the Investors agrees (i) to use reasonable best efforts to enforce the covenant in the Merger Agreement that requires the Company to deliver a duly executed certificate stating that the Company is not and has not been a United States real property holding corporation, within the meaning of Section 897(c)(2) of the Code and the Treasury Regulations thereunder during the applicable period specified in Section 897(c)(1)(A) of the Code ending on the Merger Closing, in the form and substance required under Treasury Regulation § 1.897-2(h) and (ii) not to take any action that would cause any Topco to be treated as anything other than a corporation for U.S. federal income tax purposes.

 

 

2.11.2      The Saturn Investors agree to cooperate in good faith with the SP Investors and their respective advisors regarding (i) the capital structure of the Topcos for U.S. federal income tax purposes, (ii) the structure by which SP Investors acquire interests in the Topcos, and (iii) the tax treatment of payments received by the SP Investors under the DAP Rights Agreement; and in each case shall consider in good faith opportunities to improve tax efficiency, it being understood that nothing in this Section 2.11.2 shall require (x) any action that could reasonably be expected to have an adverse impact (other than one that is immaterial) on the Saturn Investors or the transactions contemplated by the Merger Agreement or (y) any modification to the DAP Rights Agreement.

 

2.12.        Voting Agreement. Each of the Investors acknowledges and agrees that, concurrently with execution of the Merger Agreement, and as a condition to the Company’s willingness to enter into the Merger Agreement, the SP Investors are executing a Voting Agreement (the “Voting Agreement”) with the Company in the form set forth on Exhibit C. Notwithstanding any other provision of this Agreement, compliance by the SP Investors with the terms of the Voting Agreement shall not be deemed to violate this Agreement or any representation, warranty, covenant or other provision herein.

 

2.13.        DAP Rights Agreement; Sale Committee. The SP Investors acknowledge and agree that, as contemplated by the Merger Agreement and the DAP Rights Agreement, the SP Investors shall, prior to the Initial Closing, designate and appoint the Specified Holders Member (as defined in the DAP Rights Agreement) to the Sale Committee and cause the Specified Holders Member to enter into the DAP Rights Agreement at such time as contemplated by the Merger Agreement.

 

2.14.        Organizational Documents.

 

2.14.1      The Investors will as promptly as possible after the date of this Agreement cause the certificates of incorporation of Parent and Merger Sub to be amended to provide that any act by or on behalf of Parent or Merger Sub that has not been authorized in accordance with this Agreement or that otherwise violates or is inconsistent with this Agreement shall be null and void ab initio.

 

2.14.2      The Investors, acting jointly, will cause the organizational documents of the Topcos contemplated in the Investors Agreement Documents to be amended as soon as practicable following the Effective Time to conform to the terms set forth in Exhibit A.

 

 

2.15.        Termination of Affiliate Agreements. Effective as of the Merger Closing Date (but only if the Merger Closing actually occurs), each of the SP Investors, on behalf of themselves and the SP Related Parties, consents to the termination of all agreements, contracts or understandings (except for any rights or obligations under the Transaction Agreements and the Voting Agreement and the agreements set forth on Exhibit D hereto) between any SP Related Party, on the one hand, and the Company or any of its Subsidiaries, on the other hand (including the Company Shareholders Agreement).

 

ARTICLE III
MISCELLANEOUS

 

3.1.          Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by email or (c) one Business Day following the day sent by an internationally recognized overnight courier (with written confirmation of receipt), in each case at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):

 

	3.1.1	If to Parent or a Saturn Investor:
		Blazing Star Parent, LLC
		c/o Sycamore Partners Management, L.P.
		9 West 57th Street, 31st Floor
		New York, NY 10019
		Attention:	Ryan McClendon
			Kevin Burke
			John D. Woodworth
			Sean Murphy
		Email:	rmcclendon@sycamorepartners.com
			kburke@sycamorepartners.com
			jwoodworth@sycamorepartners.com
			smurphy@sycamorepartners.com
		with a copy to (which shall not constitute notice or constructive notice):
		Davis Polk & Wardwell LLP
		450 Lexington Avenue
		New York, NY 10017
		Attention:	Brian Wolfe
			Darren Schweiger
			Michael Senders
		Email:	brian.wolfe@davispolk.com
			darren.schweiger@davispolk.com
			michael.senders@davispolk.com
	3.1.2	If to any SP Investor:
		Alliance Santé Participations S.A. 14, avenue du X Septembre L-2550 Luxembourg Grand Duchy of Luxembourg

 

 

		Attention:	Simone Retter
		Email:	simone.retter@retteravocats.lu
		with a copy to (which shall not constitute notice or constructive notice):
		Ben Burman
		c/o The Family Office 24, boulevard du Ténao 98000 Monaco
		Email:	bburman@burman-avocat.com
		and
		Debevoise & Plimpton LLP 66 Hudson Blvd E. New York, NY 10001
		Attention:	Jeffrey J. Rosen
			Gordon S. Moodie
			Emily F. Huang
		Email:	jrosen@debevoise.com
			gsmoodie@debevoise.com
			efhuang@debevoise.com

 

3.2.          Amendment. This Agreement may be amended or modified and the provisions hereof may be waived, only by an agreement in writing signed by the parties hereto.

 

3.3.          Severability. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. The provisions hereof are severable, and in the event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.

 

3.4.          Remedies. The parties hereto agree that, except as provided herein, this Agreement will be enforceable by all available remedies at law or in equity. The parties agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek equitable relief, including in the form of an injunction or injunctions, to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in an appropriate court of competent jurisdiction as set forth in Section 3.9 (Governing Law; Consent to Jurisdiction), this being in addition to any other remedy to which any party is entitled at law or in equity.

 

 

3.5.          No Recourse.

 

3.5.1        Notwithstanding anything that may be expressed or implied in this Agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that the Saturn Investors may be a partnership or limited liability company, each of Parent and each Investor by its acceptance of the benefits of this Agreement covenants, agrees and acknowledges that no Person other than the Saturn Investors shall have any obligation hereunder with respect to the obligations of the Saturn Investors, respectively, and no recourse under this Agreement or under any documents or instruments delivered in connection herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against any Saturn Related Party, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Saturn Related Party for any obligations of any Saturn Investor, respectively, or any of its successors or permitted assigns under this Agreement or any documents or instrument delivered in connection herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith or for any claim (whether at law or equity, in tort, contract or otherwise) based on, in respect of, or by reason of such obligations or their creation.

 

3.5.2        Notwithstanding anything that may be expressed or implied in this Agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that the SP Investors may be a partnership or limited liability company, each of Parent and each Investor by its acceptance of the benefits of this Agreement covenants, agrees and acknowledges that no Person other than the SP Investors shall have any obligation hereunder with respect to the obligations of the SP Investors, respectively, and no recourse under this Agreement or under any documents or instruments delivered in connection herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against any SP Related Party, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any SP Related Party for any obligations of any SP Investor, respectively, or any of its successors or permitted assigns under this Agreement or any documents or instrument delivered in connection herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith or for any claim (whether at law or equity, in tort, contract or otherwise) based on, in respect of, or by reason of such obligations or their creation.

 

3.6.        No Third Party Beneficiaries. Except as provided in Section ‎3.12, this Agreement shall be binding on each party hereto solely for the benefit of each other party hereto and nothing set forth in this Agreement, express or implied, shall be construed to confer, directly or indirectly, upon or give to any Person other than the parties hereto any benefits, rights or remedies under or by reason of, or any rights to enforce or cause the parties hereto to enforce, any provisions of this Agreement; provided, however, that the Saturn Related Parties and the SP Related Parties are express, intended third-party beneficiaries of Sections ‎2.5.3 and ‎3.5.

 

 

3.7.          Confidentiality. Each party hereto agrees to, and shall cause its Representatives to, keep any information supplied by or on behalf of any of the other parties to this Agreement confidential (“Confidential Information”) and to use, and cause its Representatives to use, the Confidential Information only in connection with the Merger, the Transaction Agreements and the transactions contemplated hereby and thereby; provided, however, that the term “Confidential Information” does not include information that (a) is already in such party’s possession, provided that such information is not subject to another confidentiality agreement with or other obligation of secrecy to any person, (b) is or becomes generally available to the public other than as a result of a disclosure, directly or indirectly, by such party or such party’s Representatives, or (c) is or becomes available to such party on a non-confidential basis from a source other than any of the parties hereto or any of their respective Representatives (provided, that such source is not known by such party to be bound by a confidentiality agreement with or other obligation of secrecy to any person). Notwithstanding the foregoing, nothing herein shall prevent any party hereto from disclosing Confidential Information (i) upon the order of any court or administrative agency, (ii) upon the request or demand of any regulatory agency or authority having jurisdiction over such party, (iii) to the extent required by law or regulation, (iv) solely with respect to SP, providing information regarding the Company, SP or his Affiliates to any person to the extent permitted by the Voting Agreement (but in no event shall SP be permitted to disclose any Confidential Information provided by, or regarding, any Saturn Investor, its Affiliates and/or their respective Representatives, including their analysis of the Transactions or the Company and its Subsidiaries and structuring, and investment therein), (v) to the extent necessary in connection with the exercise of any remedy hereunder, (vi) in connection with an Equity Syndication (including soliciting prospective investors) (subject to the prior execution by any recipient of Confidential Information of a confidentiality agreement reasonably acceptable to Parent), (vii) to such party’s and its Affiliates’ Representatives and/or (viii) that is customarily provided to limited partners or investors or potential limited partners or investors in such party’s affiliated investment funds, provided that such limited partners or investors or potential limited partners or investors are subject to a customary confidentiality obligation (it being understood and agreed that, in the case of clause (i), (ii) or (iii), such party shall notify the other parties hereto of the proposed disclosure as far in advance of such disclosure as practicable and request confidential treatment of any information so disclosed).

 

3.8.          Press Release; Communications. The parties will coordinate any and all notices, releases, statements, communications to the general public or the press and any required filings, in each case, relating to this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby. Such releases, statements, communications and/or filings shall be made only at such times and in such manner as may be agreed upon by the Investors; provided, that any Investor shall be entitled to issue such press releases and to make such public statements as are required by applicable law, in which case any other Investor shall be advised thereof and such Investor together with the Investors shall use their reasonable efforts to cause a mutually agreeable release or announcement to be issued; provided, further, that to the extent practicable, any required filing shall be approved by the Investors, with such approval not to be unreasonably withheld, conditioned or delayed prior to the public disclosure thereof. Once and solely to the extent such information has been made available to the general public in accordance with this Agreement, this Section ‎3.8 shall no longer apply to such information (other than in the case of any such required filings, which shall to the extent practicable be subject to the prior approval of the Investors).

 

 

3.9.          Governing Law; Consent to Jurisdiction. This Agreement and all claims or causes of action (whether in tort, contract or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement) shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. In addition, each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by an party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section ‎3.9, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that service of process upon such party in any such action or proceeding shall be effective if such process is given as a notice in accordance with Section ‎3.1.

 

3.10.        WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY DIRECT OR INDIRECT ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) MAKES THIS WAIVER VOLUNTARILY AND (C) ACKNOWLEDGES THAT EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION ‎3.10.

 

 

3.11.        Exercise of Rights and Remedies. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission or waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.

 

3.12.        Other Agreements; Assignment. This Agreement, together with the Exhibits attached hereto and the agreements referenced herein, constitutes the entire agreement, and supersedes all prior agreements, understandings, negotiations and statements, both written and oral, among the parties or any of their Affiliates with respect to the subject matter contained herein except for the Merger Agreement, the Limited Guaranty, the Investor Commitment Agreements and such other agreements as are referenced herein which shall continue in full force and effect in accordance with their terms. Other than as expressly provided herein, this Agreement may not be assigned (whether by operation of law or otherwise) without the prior written consent of the parties hereto. Any attempted assignment in derogation of the foregoing shall be null and void. This Agreement shall be binding on each Investor and its successors and permitted assigns, and in the case of SP, his executors, administrators, personal representatives and heirs.

 

3.13.        No Representations or Duty. Each Investor specifically understands and agrees that no Investor has made or will make any representation or warranty with respect to the terms, value or any other aspect of the transactions contemplated hereby, and each Investor explicitly disclaims any warranty, express or implied, with respect to such matters. In addition, each Investor specifically acknowledges, represents and warrants that it is not relying on any other Investor (a) for its due diligence concerning, or evaluation of, the Company or its assets or businesses, (b) for its decision with respect to making any investment contemplated hereby or (c) with respect to tax and other economic considerations involved in such investment. In making any determination contemplated by this Agreement, each Investor may make such determination in its sole and absolute discretion, taking into account only such Investor’s own views, self-interest, objectives and concerns. No Investor shall have any fiduciary or other duty to any other Investor or to Parent except as expressly set forth in this Agreement.

 

3.14.        Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile or by an electronic scan delivered by electronic mail), each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by facsimile or by an electronic scan delivered by electronic mail.

 

3.15.        General. Nothing in this Agreement or the Investors Agreement Documents shall be deemed to constitute a partnership between any of the parties, nor shall any party constitute the partner or agent of any other party for any purpose. This Agreement and the Investors Agreement Documents are not intended to, and do not, create any agency, partnership, fiduciary or joint venture relationship between any party and neither this Agreement, the Investors Agreement Documents nor any other document or agreement entered into by any party relating to the subject matter hereof will be construed to suggest otherwise.

 

 

IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement (or caused this Agreement to be executed on its behalf by its officer or representative thereunto duly authorized) as of the date first above written.

 

	SYCAMORE PARTNERS III, L.P.
	By: Sycamore Partners III GP, L.P., its general partner
	By: Sycamore Partners III GP, Ltd., its general partner
	By:	/s/ Stefan L. Kaluzny
	Name:	Stefan L. Kaluzny
	Title:	Director
	SYCAMORE PARTNERS III-A, L.P.
	By: Sycamore Partners III GP, L.P., its general partner
	By: Sycamore Partners III GP, Ltd., its general partner
	By:	/s/ Stefan L. Kaluzny
	Name:	Stefan L. Kaluzny
	Title:	Director
	SYCAMORE PARTNERS WING CO-INVEST, L.P.
	By: Sycamore Partners III GP, L.P., its general partner
	By: Sycamore Partners III GP, Ltd., its general partner
	By:	/s/ Stefan L. Kaluzny
	Name:	Stefan L. Kaluzny
	Title:	Director

 

[Interim Investors Agreement Signature Page]

 

 

	BLAZING STAR PARENT, LLC
	By:	/s/ Kevin Burke
	Name:	Kevin Burke
	Title:	Co-President
	BLAZING STAR MERGER SUB, INC.
	By:	/s/ Kevin Burke
	Name:	Kevin Burke
	Title:	Co-President

 

[Interim Investors Agreement Signature Page]

 

 

	ALLIANCE SANTÉ PARTICIPATIONS S.A.
	By:	/s/ Simone Retter
	Name:	Simone Retter
	Title:	Président (Chairman)
	By:	/s/ Stefano Pessina
	Name:	Stefano Pessina
	Title:	Administrateur (Director)
	STEFANO PESSINA
	/s/ Stefano Pessina
	STEFANO PESSINA

 

[Interim Investors Agreement Signature Page]

 

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