STOCK PURCHASE AGREEMENT
AMONG
COACH JAPAN HOLDINGS, INC.,
COACH INC.,
COACH JAPAN, INC.,
COACH JAPAN INVESTMENTS, INC.
AND
SUMITOMO CORPORATION
25 APRIL, 2005
TABLE OF CONTENTS
1. Definitions........................................................... 1
2. Purchase and Sale of Shares and Repayment of TK Investment............ 4
(a) Basic Transaction............................................... 4
(b) The Closing..................................................... 4
(c) Purchase Price for Shares and Payment in respect of TK
Investment...................................................... 4
(d) Deliveries at the Closing....................................... 5
(e) Termination of Existing Agreements.............................. 5
3. Representations and Warranties Concerning the Transaction............. 5
(a) Representations and Warranties of the Seller.................... 5
(b) Representations and Warranties of the Coach Parties............. 6
(c) Survival of Representations and Warranties...................... 7
(d) Exclusivity of Representations.................................. 7
4. Pre-Closing Covenants................................................. 8
(a) General......................................................... 8
(b) Notices and Consents............................................ 8
(c) Standstill...................................................... 8
(d) Share Certificates.............................................. 8
(e) Funding Notices................................................. 8
(f) Price Increases................................................. 8
(g) Financial Statements............................................ 8
(h) Sumitomo Secondees.............................................. 8
5. Post-Closing Covenants................................................ 9
(a) General......................................................... 9
(b) Transition...................................................... 9
(c) Confidentiality................................................. 9
(d) Financial Statements............................................ 10
(e) Restrictive Covenants........................................... 10
6. Conditions to Obligation to Close..................................... 11
(a) Conditions to Obligation of the Coach Parties and the
Company......................................................... 11
(b) Conditions to Obligation of the Seller.......................... 12
7. Indemnities........................................................... 13
(a) Seller's Indemnities............................................ 13
(b) Coach Parties' Indemnity........................................ 13
(c) Procedures for Indemnification.................................. 13
(d) Determination of Adverse Consequences........................... 14
(e) Other Indemnification Provisions................................ 14
8. Termination........................................................... 15
(a) Termination of Agreement........................................ 15
(b) Effect of Termination........................................... 15
9. Miscellaneous......................................................... 15
(a) Press Releases and Public Announcements......................... 15
(b) No Third-Party Beneficiaries.................................... 15
(c) Entire Agreement................................................ 16
(d) Succession and Assignment....................................... 16
(e) Counterparts.................................................... 16
(f) Headings........................................................ 16
(g) Notices......................................................... 16
(h) Governing Law................................................... 17
(i) Consent to Jurisdiction and Service of Process.................. 17
(j) Waiver of Jury Trial............................................ 18
(k) Amendments and Waivers.......................................... 18
(l) Severability.................................................... 18
(m) Expenses........................................................ 18
(n) Construction.................................................... 18
(o) Incorporation of Exhibits, Annexes, and Schedules............... 19
(p) Specific Performance............................................ 19
Exhibit A Seller's Release................................................ A-1
Exhibit B Coach Parties' Release.......................................... B-1
Schedule 1 Sumitomo Secondees.............................................. S-1
Schedule 2 Support Contracts............................................... S-2
Schedule 3 Competing Brands................................................ S-3
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement") entered into on 25 April, 2005
(the "Effective Date"), by and among Coach Japan Holdings, Inc., a corporation
registered in Delaware, United States of America whose principal place of
business is at 516 West 34th Street, New York, New York 10001, United States of
America (the "Buyer"), Coach Inc., a corporation registered in Maryland, United
States of America whose principal place of business is at 516 West 34th Street,
New York, New York 10001, United States of America ("Coach Inc."), Coach Japan,
Inc., a company incorporated in Japan whose principal place of business is at
Aoyama Palacio Tower, 6-3, Kitaaoyama 3-chome, Minato-ku, Tokyo 107-0061, Japan
(the "Company"), Coach Japan Investments, Inc., a corporation registered in
Delaware, United States of America whose principal place of business is at 516
West 34th Street, New York, New York 10001, United States of America ("TK
Investor No. 1"), and Sumitomo Corporation, a company incorporated in Japan
whose principal place of business is at 1-8-11 Harumi, Chuo-ku, Tokyo 104-8610,
Japan (the "Seller"). The Buyer, Coach Inc., the Company, TK Investor No. 1 and
the Seller are sometimes referred to herein collectively as the "Parties" or
individually as a "Party." Coach Inc. and the Buyer are sometimes referred to
herein collectively as the "Coach Parties" or individually as a "Coach Party."
The Seller owns 500 ordinary shares in the capital of the Company and, in
its capacity as TK Investor No. 2 (as defined below), has an outstanding TK
Investment (as defined below) in the Company.
This Agreement contemplates a transaction in which the Buyer wishes to
purchase from the Seller, and the Seller wishes to sell to the Buyer, the Shares
(as defined below) in return for cash and the Company will repay the TK
Investment to TK Investor No.2 and TK Investor No.2 will accept such repayment
of the TK Investment in full.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the respective representations, warranties,
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties agree as follows.
1. Definitions.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate," in relation to a Party, means a Person Controlled by or
Controlling that Party or a Person under common Control with that Party.
"Buyer" has the meaning set forth in the preface above.
"Closing" has the meaning set forth in Section 2(b) below.
"Closing Date" has the meaning set forth in Section 2(b) below.
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"Coach Indemnified Parties" has the meaning set forth in Section 7(a)
below.
"Company" has the meaning set forth in the preface above.
"Confidential Information" means any information which the Seller (or any
of its Affiliates, officers, employees and agents) may have or acquire in
relation to the customers, business, finances, assets or affairs of the Company
or its Affiliates, save for (i) any information which is publicly available or
becomes publicly available through no act of the Seller (or any of its
Affiliates), (ii) any information disclosed to Seller by a third party that did
not acquire the information under any obligation of confidentiality, and (iii)
information independently acquired by Seller as the result of work carried out
by an employee to whom no disclosure of such information had been made.
"Control": A Person shall be deemed to have Control of another Person if
it exercises, is able to exercise, is entitled to exercise or is entitled to
acquire direct or indirect control over that other Person's affairs including if
it possesses or is entitled to:
(a) a majority of the outstanding capital stock or voting rights
of that other Person as of the date of determination; or
(b) a majority of any distributions from that other Person or assets on
a winding up of that other Person as of the date of determination;
and "Controlled" and "Controlling" shall be construed accordingly.
"Cooperation Agreement" means the agreement to be entered into on the
Closing Date between the Company and the Seller in substantially the form agreed
as initialed on the Effective Date by the parties thereto for identification.
"Effective Date" has the meaning set forth in the preface above.
"Existing Agreements" means, collectively and individually, the
Shareholders Agreement, the Funding Agreement and TK Agreement No. 2.
"Funding Agreement" means the funding agreement entered into between the
Company, TK Investor No.1 and TK Investor No.2 on July 30, 2001.
"Indemnified Party" has the meaning set forth in Section 7(c) below.
"Indemnifying Party" has the meaning set forth in Section 7(c) below.
"Letter of Indemnity" means the letter of indemnity dated July 28, 2004
between Seller and Coach Inc.
"Letter Regarding Foreign Exchange Hedging Policy" means the letter
agreement dated September 21, 2001 between the Seller and Coach Inc. relating to
the Company's foreign exchange hedging policy.
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"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Net Losses" has the meaning set forth in TK Agreement No. 2.
"Net Profits" has the meaning set forth in TK Agreement No. 2.
"New Letter of Indemnity" means the letter of indemnity to be entered into
on the Closing Date between the Seller and Coach Inc. in substantially the form
agreed as initialed on the Effective Date by the parties thereto for
identification.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Ordinary Shares" means ordinary shares of non-par value in the capital of
the Company.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for Taxes not yet due and payable or for Taxes that the
taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Seller" has the meaning set forth in the preamble above.
"Seller Indemnified Parties" has the meaning set forth in Section 7(a)
below.
"Shareholders Agreement" means the shareholders agreement relating to the
Company entered into between the Buyer, Coach Inc., the Seller and the Company
on July 30, 2001.
"Share Payment" has the meaning set forth in Section 2(c) below.
"Shares" means the 500 Ordinary Shares in the capital of the Company held
by the Seller.
"Sumitomo Directors" has the meaning ascribed to it in the Shareholders
Agreement.
"Sumitomo Secondees" means each of the persons whose names are set forth
in Schedule 1 who are seconded by the Seller to the Company as of the date of
this Agreement.
"Support Contracts" means contracts entered into between the Company and
Affiliates of the Seller set forth in Schedule 2 for the provision of certain
services for the benefit of the Company.
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"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental, customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment, disability,
real property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
"TK Agreement No.2" means the Tokumei Kumiai Agreement entered into
between the Company and TK Investor No.2 on July 30, 2001.
"TK Investment" means the aggregate Advances (as such term is defined in
the Funding Agreement) made by TK Investor No.2 to the Company pursuant to the
Funding Agreement and TK Agreement No.2.
"TK Investor No.1" has the meaning set forth in the preamble.
"TK Investor No.2" means the Seller as a tokumei kumiai investor in the
Company.
"TK Payment" has the meaning set forth in Section 2(c) below. "Waiver
Letter" means the letter agreement dated June 15, 2001
between the Seller and Coach Inc.
2. Purchase and Sale of Shares and Repayment of TK Investment
(a) Basic Transaction. At the Closing (as defined below), and
subject to the terms and conditions of this Agreement, for the consideration
specified below in Section 2(c): (i) the Buyer agrees to purchase from the
Seller, and the Seller agrees to sell, transfer and deliver to the Buyer, all of
the Shares, and (ii) the Company agrees to pay to TK Investor No. 2, and TK
Investor No. 2 agrees to accept, the TK Payment (as defined below) in complete
satisfaction of TK Investor No. 2's rights under TK Agreement No. 2 and the
Funding Agreement with respect to the TK Investment, Net Losses and Net Profits.
(b) The Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Coach Inc. at
516 West 34th Street, New York, New York 10001, United States of America
commencing at 9:00 a.m. local time on July 1, 2005 or such other date as the
Parties may mutually agree (the "Closing Date").
(c) Purchase Price for Shares and Payment in respect of TK
Investment. At the Closing: (i) the Buyer shall pay to the Seller the sum of six
million U.S. Dollars ($6,000,000) (the "Share Payment") in consideration for the
Shares by delivery in cash payable by wire transfer or delivery of other
immediately available funds, and (ii) the Company shall pay to TK Investor No.2
the sum of two hundred and ninety four million U.S. Dollars ($294,000,000) (the
"TK Payment"), which shall constitute the repayment in full of the TK
Investment, the distribution in full of all accrued Net Profits and Net Losses
and a termination payment to compensate TK Investor No.2 for loss of benefit
under TK Agreement No.2., by delivery in cash payable by wire transfer or
delivery of other immediately available funds and TK Investor No. 2 shall accept
such amount in complete satisfaction of its rights under TK Agreement No.2 and
the
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Funding Agreement. At the Closing the Buyer shall determine the allocation of
the amount of the TK Payment among (i) the repayment of the TK Investment, (ii)
the distribution of all accrued Net Profits and Net Losses, and (iii) the
termination payment to compensate TK Investor No.2 for loss of benefit under TK
Agreement No.2.
(d) Deliveries at the Closing. At the Closing, (i) the Seller will
deliver to the Coach Parties the various certificates, instruments, and
documents referred to in Section 6(a), (ii) the Coach Parties will deliver to
the Seller the various certificates, instruments, and documents referred to in
Section 6(b), (iii) the Seller will deliver to the Buyer the stock certificates
representing all of the Shares and any other document which the Buyer reasonably
requests in order to obtain good title to the Shares and to enable the Buyer to
ensure the registration of the Shares free from any encumbrance in its name or
the name of its nominee, as applicable, (iv) the Company and the Seller shall
each execute and deliver the Cooperation Agreement, (v) the Seller will deliver
to the Buyer all documentation the Buyer reasonably requests to certify its
acceptance of the TK Payment in complete satisfaction of its rights under TK
Agreement No. 2 and the Funding Agreement with respect to the TK Investment, Net
Losses and Net Profits, (vi) the Buyer will deliver to the Seller the Share
Payment, and (vii) the Company will deliver to the Seller the TK Payment.
(e) Termination of Existing Agreements. Upon the occurrence of the
Closing, the Existing Agreements, the Letter of Indemnity and the Letter
Regarding Foreign Exchange Hedging Policy shall immediately and automatically
terminate and be of no further force or effect, including without limitation any
provisions thereof that are specified to survive termination, and neither the
Seller, the Coach Parties, the Company or the TK Investor No.1 shall have any
further liability thereunder.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller. The Seller
represents and warrants to the Buyer that the statements contained in this
Section 3(a) are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3(a)).
(i) Organization of Seller. The Seller is duly organized,
validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Seller has full
corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Seller, enforceable
in accordance with its terms and conditions except to the extent
that the enforceability thereof may be limited by: (x) applicable
bankruptcy, insolvency, fraudulent conveyance, organization,
moratorium or similar laws from time to time in effect affecting
generally the enforcement of creditors' rights and remedies; and (y)
general principles of equity. The Seller need not give any notice
to, make any filing with, or obtain any authorization,
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consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
The execution of this Agreement by the Seller and the transactions
contemplated hereunder has been approved by the Seller's board of
directors.
(iii) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental agency,
or court to which the Seller is subject or any provision of its
charter or bylaws or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or
require any notice or consent under any agreement, contract, lease,
license, instrument, or other arrangement to which the Seller is a
party or by which it is bound or to which any of its assets is
subject.
(iv) Brokers' Fees. The Seller has no Liability or obligation
to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
the Buyer could become liable or obligated.
(v) Shares. The Seller holds of record and owns beneficially
the Shares, free and clear of any restrictions on transfer, Taxes,
Security Interests, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands. The Seller is not a
party to any option, warrant, purchase right, or other contract or
commitment that could require the Seller to sell, transfer, or
otherwise dispose of any capital stock of the Company (other than
this Agreement). The Seller is not a party to any voting trust,
proxy, or other agreement or understanding with respect to the
voting of any capital stock of the Company.
(vi) TK Agreement No.2. The Seller is beneficially entitled to
its rights under TK Agreement No.2, free and clear of any
restrictions on transfer, Taxes, Security Interests, options,
warrants, purchase rights, contracts, commitments, equities, claims,
and demands. The Seller is not a party to any option, warrant,
purchase right, or other contract or commitment that could require
the Seller to sell, transfer, or otherwise dispose of its rights and
interest under TK Agreement No.2 (other than this Agreement). TK
Agreement No.2 has not been varied, amended or waived.
(b) Representations and Warranties of the Coach Parties. The Coach
Parties jointly and severally represent and warrant to the Seller that the
statements contained in this Section 3(b) are correct and complete as of the
date of this Agreement and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were substituted for the
date of this Agreement throughout this Section 3(b)).
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(i) Organization of the Buyer. Each of the Coach Parties, the
Company and TK Investor No.1 is a corporation duly organized,
validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. Each of the Coach Parties,
the Company and TK Investor No.1 has full corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of each of the Coach Parties, the Company
and TK Investor No.1, enforceable in accordance with its terms and
conditions except to the extent that the enforceability thereof may
be limited by: (x) applicable bankruptcy, insolvency, fraudulent
conveyance, organization, moratorium or similar laws from time to
time in effect affecting generally the enforcement of creditors'
rights and remedies; and (y) general principles of equity. None of
the Coach Parties, the Company or TK Investor No.1 need to give any
notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
The execution of this Agreement by Coach Inc., the Buyer and TK
Investor No.1 and the transactions contemplated hereunder has been
approved by their respective boards of directors.
(iii) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental agency,
or court to which any of the Coach Parties, the Company or TK
Investor No.1 is subject or any provision of its charter or bylaws
or (B) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right
to accelerate, terminate, modify, or cancel, or require any notice
or consent under any agreement, contract, lease, license,
instrument, or other arrangement to which any of the Coach Parties,
the Company or TK Investor No.1 is a party or by which it is bound
or to which any of its assets is subject.
(c) Survival of Representations and Warranties. The representations
and warranties of the Parties contained in this Agreement shall survive the
Closing hereunder (even if the damaged Party knew or had reason to know of any
misrepresentation or breach of warranty or covenant at the time of Closing) and
continue in full force and effect for a period of twelve months thereafter;
provided, however, that the representations and warranties of the Seller
contained in Section 3(a)(v) and Section 3(a)(vi) shall survive the Closing
hereunder and continue in full force and effect in accordance with the statutes
of limitations applicable thereto.
(d) Exclusivity of Representations. The representations and
warranties made by the Parties in this Agreement are the exclusive
representations and warranties made by the Parties. Each of the Parties hereby
disclaims any other express or implied representations or warranties.
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4. Pre-Closing Covenants. The Parties agree as follows with respect to the
period from the execution of this Agreement until the Closing (or until
termination of this Agreement pursuant to Section 8).
(a) General. Each of the Parties will use its reasonable best
efforts to take all actions and to do all things necessary, proper or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including the satisfaction, but not the waiver, of the closing
conditions set forth in Section 6).
(b) Notices and Consents. Each of the Parties will give any notices
to, make any filings with, and use its commercially reasonable best efforts to
obtain any authorizations, consents, and approvals of governments, governmental
agencies or third parties required in connection with the transactions
contemplated by this Agreement.
(c) Standstill. Neither the Seller, on the one hand, nor the Coach
Parties, the Company and TK Investor No. 1, on the other hand, will commence any
legal action or otherwise assert any rights against the other arising under the
Existing Agreements or at law with respect to any breach or alleged breach of
the Existing Agreements prior to the date of this Agreement.
(d) Share Certificates. The Company shall issue to the Seller share
certificates representing the Shares, to facilitate the transfer of the Shares
to Buyer at the Closing.
(e) Funding Notices. The Company shall not issue any Funding Notice
(as defined in the Funding Agreement) to the Seller in its capacity as TK
Investor No. 2.
(f) Price Increases. Notwithstanding anything to the contrary
contained in Section 8.1 of the Shareholders Agreement, the Buyer and the Seller
agree that the current Business Plan (as defined in the Shareholders Agreement)
shall remain in effect through the Closing and that no revision to the Business
Plan shall be submitted to the Company's Board of Directors for approval until
after the Closing. Coach, Inc. further agrees that no modifications to the
prices payable by the Company under that certain License and Distribution
Agreement dated July 30, 2001 between Coach, Inc. and the Company (the
"Distribution Agreement") for Products (as defined in the Distribution
Agreement) shall be made until after the Closing. Notwithstanding the foregoing,
if this Agreement is terminated prior to the Closing in accordance with Section
8, this Section 4(f) shall be of no further effect.
(g) Financial Statements. Through the Closing Date, the Coach
Parties and the Company shall continue to deliver a monthly balance sheet and
statement of income for the Company to the Seller in accordance with past
practice.
(h) Sumitomo Secondees. The Seller shall continue to make the
Sumitomo Secondees available to the Company up to the Closing Date or, if
earlier, the termination date specified on Schedule 1 on the existing terms of
their secondments (notwithstanding any provisions of such existing terms
providing for earlier termination). The Seller's obligations under this Section
4(h) shall be limited to using its commercially reasonable best efforts to make
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the Sumitomo Secondees available during the specified period. Should any of the
Sumitomo Secondees resign, the Seller shall have no obligation to make a
replacement employee available to the Company and the Company shall have no
obligation to pay any fees in respect of such Sumitomo Secondees for the period
from the date of resignation.
5. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Seller, on the one hand, and the Coach Parties, the Company and TK
Investor No. 1, on the other hand, will take such further action (including the
execution and delivery of such further instruments and documents) as the other
may reasonably request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under
Section 7). The Seller acknowledges and agrees that from and after the Closing
the Buyer will be entitled to possession of all documents, books, records
(including Tax records), agreements, and financial data of any sort relating to
the Company, provided that the Seller shall be entitled to retain copies of any
such documents and information as it deems necessary, acting reasonably, for its
own administrative and accounting purposes. Each of the Parties shall make any
governmental or regulatory filings required in connection with the execution,
delivery or performance by each of the Parties or the consummation by it of the
transactions contemplated hereby, all at its sole cost and expense, and the
other Parties shall upon request, execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper for the
preparation of the filings.
(b) Transition. For a period of one (1) year from the Effective
Date, the Seller will not take any action that is designed or intended to have
the effect of discouraging any lessor, licensor, customer, supplier, or other
business associate of the Company from maintaining the same business
relationships with the Company after the Closing as it maintained with the
Company prior to the Closing. The Seller will use its commercially reasonable
best efforts to refer all customer inquiries relating to the Company to the
Buyer from and after the Closing. The Seller will not take any action that is
designed or intended to have the effect of discouraging its Affiliates who are
parties to the Support Contracts from performing the Support Contracts in
accordance with their respective terms.
(c) Confidentiality. For a period of three (3) years following the
Closing Date, the Seller shall at all times keep secret and confidential and
shall not use (and shall procure that its Affiliates (other than those who are
parties to the Support Contracts), officers, employees and agents shall keep
secret and confidential and not use) the Confidential Information except in
connection with this Agreement. In the event that the Seller is requested or
required by applicable law, stock exchange rule or by any subpoena or similar
legal process to disclose any Confidential Information, the Seller will notify
the Buyer promptly of the request or requirement so that the Buyer may seek an
appropriate protective order or waive compliance with the provisions of this
Section 5(c). In the event that such protective order is not obtained or the
Buyer waives compliance with the provisions of this section 5(c), and the Seller
is, on the advice of counsel, required to disclose Confidential Information, the
Seller may disclose such Confidential Information; provided that the Seller will
disclose only that portion of the
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Confidential Information required to be disclosed and will exercise its
commercially reasonable best efforts to obtain assurance that confidential
treatment will be accorded to such Confidential Information.
(d) Financial Statements.
Within seventy five (75) days after Closing the Coach Parties shall
deliver to the Seller a balance sheet and statement of income for the Company as
of the Closing Date and for the period beginning on July 4, 2004 and ending on
the Closing Date, reflecting the Company's financial results and prepared on a
historical basis in accordance with generally accepted accounting principles in
Japan, together with a review report prepared by Deloitte Touche Tohmatsu.
(e) Restrictive Covenants.
(i) For a period of one (1) year from and after the Effective
Date, the Seller undertakes that it will not have any direct or
indirect interest, through any investment in, or any participation
with, any other entity or act as agent or distributor of any other
entity, which sells, markets or distributes in the retail or
wholesale markets in Japan the Products (as defined in the
Shareholders Agreement) distributed by the Company as of the Closing
Date or any products marketed by or under the brands listed on
Schedule 3, except that the matters set forth in paragraphs (1),
(2), (3), (4) and (5) of the Waiver Letter shall constitute
exceptions to this Section 5(e).
(ii) For a period of two (2) years from and after the Closing
Date, (x) the Seller undertakes that it will not and shall ensure
that its Affiliates will not directly or indirectly and whether on
its own behalf or on behalf of any other Person canvass, solicit or
attempt to entice away from the Company, or offer or cause to be
offered any employment in any capacity to any person employed by the
Company (whether or not such person would thereby breach his
employment or appointment terms) and (y) the Buyer undertakes that
it will not and shall ensure that its Affiliates will not directly
or indirectly and whether on its own behalf or on behalf of any
other Person canvass, solicit or attempt to entice away from the
Seller, or offer or cause to be offered any employment in any
capacity to any person employed by the Seller (whether or not such
person would thereby breach his employment or appointment terms);
provided, however that this provision shall not restrict either
Party from making general solicitations to the public by way of
advertisements in the media; and provided further that this
provision shall not be deemed to prohibit the Buyer or its
Affiliates from employing any of the Sumitomo Secondees who
affirmatively seek such employment so long as Buyer and its
Affiliates otherwise comply with this Section 5(e)(ii).
(iii) Seller undertakes to the Coach Parties and the Company
that it will not, and will make commercially reasonable best efforts
to ensure that its Affiliates, shareholders, officers, employees or
agents will not, do any act or thing
-10-
that would reasonably be expected to damage the reputation of the
Coach Parties or the Company and will not make or publish or cause
to be made or published to anyone in any circumstances any
disparaging remarks concerning the Coach Parties or the Company.
(iv) Each of the Coach Parties and the Company undertakes to
the Seller that it will not, and will make commercially reasonable
best efforts to ensure that its Affiliates, shareholders, officers,
employees or agents will not, do any act or thing that would
reasonably be expected to damage the reputation of the Seller or its
Affiliates and will not make or publish or cause to be made or
published to anyone in any circumstances any disparaging remarks
concerning the Seller or its Affiliates.
(v) If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 5(e) is invalid
or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the power
to reduce the scope, duration, or area of that term or provision, to
delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the
expiration of the time within which the judgment may be appealed.
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Coach Parties and the Company.
The obligation of the Coach Parties, the Company and TK Investor No. 1 to
consummate the transactions contemplated by this Agreement is subject to
satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section
3(a) shall be true and correct in all material respects at and as of
the Closing Date;
(ii) the Seller shall have performed and complied with all of
its covenants hereunder in all material respects through the
Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement, (B) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation, (C) affect adversely the right of
the Buyer to own the Shares (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect);
-11-
(iv) the Seller shall have delivered to the Coach Parties and
the Company a certificate to the effect that each of the conditions
specified above in Section 6(a)(i)-(iii) are satisfied in all
respects;
(v) the Seller shall have executed and delivered to the Coach
Parties and the Company a release substantially in the form of
Exhibit A;
(vi) the Buyer shall have received a letter of resignation,
effective as of the Closing, of each Sumitomo Director acknowledging
that he or she has no claim outstanding for director's fees,
wrongful or unfair dismissal, redundancy or any claim in respect of
any other moneys or benefits due to him or her from the Company
arising out of such resignation and that he or she is not entitled
to any remuneration from the Company in respect of his or her
appointment; and
(vii) the Seller shall have executed and delivered the
Cooperation Agreement.
The Coach Parties, the Company and TK Investor No. 1 may waive any condition
specified in this Section 6(a) by executing a writing so stating at or prior to
the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the
Seller to consummate the transactions contemplated by this Agreement is subject
to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section
3(b) above shall be true and correct in all material respects at and
as of the Closing Date;
(ii) the Coach Parties and the Company shall have performed
and complied with all of their respective covenants hereunder in all
material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement or (B) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect);
(iv) each of the Coach Parties, the Company and TK Investor
No. 1 shall have delivered to the Seller a certificate to the effect
that each of the conditions specified above in Section 6(b)(i)-(iii)
are satisfied in all respects with respect to such Coach Party, the
Company or TK Investor No. 1 as the case may be;
(v) Coach Inc. shall have delivered to the Seller the New
Letter of Indemnity dated as of the Closing Date;
-12-
(vi) the Coach Parties, the Company and TK Investor No.1 shall
have executed and delivered to the Seller a release substantially in
the form of Exhibit B; and
(vii) the Company shall have executed and delivered the
Cooperation Agreement.
The Seller may waive any condition specified in this Section
6(b) by executing a writing so stating at or prior to the Closing.
7. Indemnities
(a) Seller's Indemnities
(i) The Seller hereby confirms and agrees that any and all
Adverse Consequences arising as a result of the Seller's being a
party to TK Agreement No.2 or its receipt of the TK Payment at any
time, whether prior to, on or after the Closing Date, shall remain
the sole and exclusive liability, obligation and responsibility of
the Seller and the Seller shall indemnify and hold the Coach
Parties, the Company and TK Investor No.1 and their respective
directors, officers and other employees, representatives and agents
(the "Coach Indemnified Parties") harmless from and against all such
Adverse Consequences which they may suffer. Notwithstanding the
foregoing, the Seller shall have no liability whatsoever to the
Coach Indemnified Parties with respect to any Adverse Consequences
arising as a result of (x) the allocation of the three hundred
million U.S. Dollars ($300,000,000) payable to Sumitomo under
Section 2(c) as between the Share Payment and the TK Payment, (y)
the allocation of the TK Payment by the Buyer pursuant to the final
sentence of Section 2(c), or (z) the accounting treatment of the TK
Payment by Coach Japan or the Coach Parties (collectively, the
"Excluded Liabilities").
(ii) The Seller shall indemnify and hold the Coach Indemnified
Parties harmless from and against all Adverse Consequences arising
from any breach of any representation, warranty or covenant of the
Seller under this Agreement.
(b) Coach Parties' Indemnity. The Coach Parties, jointly and
severally, shall indemnify and hold the Seller and its directors, officers and
other employees, representatives and agents (the "Seller Indemnified Parties")
harmless from and against all Adverse Consequences arising from (x) the Excluded
Liabilities, or (y) any breach of any representation, warranty or covenant of
the Coach Parties, the Company or TK Investor No. 1 under this Agreement.
(c) Procedures for Indemnification.
(i) In the event of a claim being brought against a Coach
Indemnified Party or a Seller Indemnified Party (as the case may be,
an "Indemnified Party") with respect to which the Indemnified Party
intends to make a claim for indemnification against the Seller or
the Coach Parties, the Company or TK Investor No.1 as the case may
be (the "Indemnifying Party"), the Indemnified
-13-
Party shall promptly (but in no event more than 30 days after
learning of such claim) give notice to the Indemnifying Party of the
claim and permit the Indemnifying Party to assume control of the
claim; provided that any failure to provide the foregoing notice on
a timely basis shall not relieve the Indemnifying Party of its
obligations hereunder except to the extent that it is prejudiced or
otherwise damaged thereby.
(ii) The Indemnifying Party shall have the right to undertake,
conduct and control, through counsel reasonably acceptable to the
Indemnified Party, and at the Indemnifying Party's sole expense, the
conduct and settlement of such claim, and the Indemnified Party
shall cooperate with the Indemnifying Party in connection therewith,
provided that the Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement without the prior
written consent of the Indemnified Party (not to be withheld
unreasonably).
(iii) The Indemnifying Party shall permit the Indemnified
Party and counsel chosen by the Indemnified Party and reasonably
acceptable to the Indemnifying Party to monitor such conduct or
settlement and shall provide the Indemnified Party and such counsel
with such information regarding such claim, proceeding or suit as
either of them may reasonably request, but the fees and expenses of
such counsel shall be borne by the Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel, or (ii) the named parties
to any such claim, proceeding or suit include the Indemnified Party
and the Indemnifying Party, and in the reasonable opinion of counsel
to the Indemnified Party representation of both Parties by the same
counsel would be inappropriate due to actual or likely conflicts of
interest between them, in either of which case the reasonable fees
and disbursements of counsel for such Indemnified Party shall be
reimbursed by the Indemnifying Party to the Indemnified Party if the
Indemnifying Party is ultimately held liable, or if the Indemnifying
Party is able to recover such fees and disbursements where the
Indemnified Party is not so able; and
(iv) In no event shall the Indemnifying Party without the
prior written consent of the Indemnified Party, settle or comprise
any claim or consent to the entry of any judgment that does not
include as an unconditional term thereof the giving by the claimant
or the plaintiff to the Indemnified Party a release from all
liability in respect of such claim.
(d) Determination of Adverse Consequences. The Parties shall take
into account the time cost of money in determining Adverse Consequences for
purposes of this Section 7. All indemnification payments under this Section 7
shall be deemed adjustments to the consideration specified above in Section
2(c).
(e) Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for breach of representation,
warranty, or covenant.
-14-
8. Termination.
(a) Termination of Agreement. The Parties may terminate this
Agreement as provided below:
(i) the Parties may terminate this Agreement by written
consent signed by all the Parties at any time prior to the Closing;
(ii) the Coach Parties may terminate this Agreement by giving
written notice to the Seller at any time prior to the Closing (A) in
the event (x) the Seller has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, (y) the Coach Parties have notified the Seller of the
breach, and (z) the breach has continued without cure for a period
of 30 days after the notice of breach or (B) if the Closing shall
not have occurred on or before July 1, 2005, by reason of the
failure of any condition precedent under Section 6(a) hereof (unless
the failure results primarily from the Coach Parties' breach of any
representation, warranty, or covenant contained in this Agreement);
(iii) the Seller may terminate this Agreement by giving
written notice to the Coach Parties at any time prior to the Closing
(A) in the event (x) the Coach Parties, the Company or TK Investor
No. 1 has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, (y)
the Seller has notified the Coach Parties, the Company or TK
Investor No. 1, as the case may be, of the breach, and (z) the
breach has continued without cure for a period of 30 days after the
notice of breach or (B) if the Closing shall not have occurred on or
before July 1, 2005, by reason of the failure of any condition
precedent under Section 6(b) hereof (unless the failure results
primarily from the Seller's breach of any representation, warranty,
or covenant contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to Section 8(a) above, all rights and obligations of the Parties
hereunder shall terminate without any Liability of any Party to any other Party
(except for any Liability of any Party then in breach).
9. Miscellaneous.
(a) Press Releases and Public Announcements. No Party shall issue
any press release or make any public announcement relating to the subject matter
of this Agreement prior to the Closing without the prior written approval of the
other Party; provided, however, that the Parties shall issue a press release
upon the execution of this Agreement in a form to be mutually agreed; and
provided further that any Party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing Party
will use its reasonable best efforts to advise the other Parties prior to making
the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
-15-
(c) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
consent of the other Party; provided, however, that the Buyer may (i) assign any
or all of its rights and interests hereunder to one or more of its Affiliates
and (ii) designate one or more of its Affiliates to perform its obligations
hereunder (in any or all of which cases the Buyer nonetheless shall remain
responsible for the performance of all of its obligations hereunder).
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller:
Sumitomo Corporation
1-8-11 Harumi
Chuo-ku
Tokyo 104-8610
Japan
Attention: General Manager, Brand Accessories Business
Department
Fax: +81 3 5166 6380
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
Fukoku Seimei Building 2F
2-2-2 Uchisaiwai-cho
Chiyoda-ku, Tokyo
100-0011
Japan
-16-
Attention: Lisa Yano
Fax: +81 3 3597 8120
If to the Coach Parties, the Company or TK Investor No. 1:
Coach, Inc.
516 West 34th Street
New York, NY 10001
USA
Attention: General Counsel
Fax: +1 212 629 2398
with a copy to:
Latham & Watkins
99 Bishopsgate
London
EC2M 3XF
United Kingdom
Attention: David Miles
Fax: +44 20 7374 4460
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New York without giving
effect to any choice or conflict of law provision or rule (whether of the State
of New York or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New York.
(i) Consent to Jurisdiction and Service of Process. Each Party
hereby irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
shall only be instituted in the federal or state courts located in New York, New
York and hereby expressly submits to the personal jurisdiction and venue of such
courts for the purposes thereof and expressly waives any claim of improper venue
and any claim that such courts are an inconvenient forum. Each Party hereby
-17-
irrevocably consents to the service of process of any of the aforementioned
courts in any such suit, action or proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to the address set forth or
referred to in Section 9(g).
(j) Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (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 AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
(k) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by each
of the Parties. No waiver by any Party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(l) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions of this Agreement.
If any provision of this Agreement, or the application of that provision to any
Person or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted for that provision in order to carry
out, so far as may be valid and enforceable, the intent and purpose of the
invalid or unenforceable provision and (b) the remainder of this Agreement and
the application of that provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of that provision, or the
application of that provision, in any other jurisdiction.
(m) Expenses. Each of the Parties will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby. The Seller agrees that the
Company has not borne and will not bear any of the Seller's costs and expenses
(including any of its legal fees and expenses) in connection with this Agreement
or any of the transactions contemplated hereby.
(n) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless
-18-
the context requires otherwise. The word "including" shall mean including
without limitation. The Parties intend that each representation, warranty, and
covenant contained herein shall have independent significance. If any Party has
breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative levels
of specificity) which the Party has not breached shall not detract from or
mitigate the fact that the Party is in breach of the first representation,
warranty, or covenant.
(o) Incorporation of Exhibits, Annexes, and Schedules. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(p) Specific Performance. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court having jurisdiction over the Parties and the matter
(subject to the provisions set forth in Section 9(i) above), in addition to any
other remedy to which they may be entitled, at law or in equity.
*****
-19-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date first above written.
COACH JAPAN HOLDINGS, INC.
By:
-------------------------------------
Title:
-------------------------------------
COACH INC.
By:
-------------------------------------
Title:
-------------------------------------
COACH JAPAN, INC.
By:
-------------------------------------
Title:
-------------------------------------
COACH JAPAN INVESTMENTS, INC.
By:
-------------------------------------
Title:
-------------------------------------
SUMITOMO CORPORATION
By:
-------------------------------------
Title:
-------------------------------------
-20-
Exhibit A
Seller's Release
The undersigned, Sumitomo Corporation, a company incorporated in
Japan whose principal place of business is at 1-8-11 Harumi, Chuo-ku, Tokyo
104-8610, Japan, for itself and on behalf of its past, present and future
parents, Subsidiaries and other Affiliates, predecessors, successors and
assigns, and each of the foregoing's officers, employees, directors,
representatives, agents and attorneys (together, "Sumitomo"), does hereby:
(i) release (i) Coach Japan Holdings, Inc., a corporation registered
in Delaware, United States of America whose principal place of business is at
516 West 34th Street, New York, New York 10001, United States of America; (ii)
Coach Inc., a corporation registered in Maryland, United States of America whose
principal place of business is at 516 West 34th Street, New York, New York
10001, United States of America; (iii) Coach Japan, Inc., a company incorporated
in Japan whose principal place of business is at Aoyama Palacio Tower, 6-3,
Kitaaoyama 3-chome, Minato-ku, Tokyo 107-0061, Japan; and (iv) Coach Japan
Investments, Inc., a corporation registered in Delaware, United States of
America whose principal place of business is at 516 West 34th Street, New York,
New York 10001, United States of America, and each of their respective past,
present and future parents, Subsidiaries and other Affiliates, predecessors,
successors and assigns, and each of the foregoing's officers, employees,
directors, representatives, agents and attorneys (together, the "Coach Parties")
from any and all liability and accountability with respect to any and all
actions, causes of action, suites, charges, disputes, controversies, debts,
dues, sums of money, damages, judgments, executions, claims and demands
whatsoever, in law or in equity, known or unknown, which the undersigned ever
had, now have or may hereafter have, for, upon, or by reason of any matters, act
omission, cause or thing whatsoever from the beginning of the world to the date
of this Release, including but not limited to any matter, cause or thing
relating to those contracts, agreements, arrangements and commitments set forth
on Schedule I hereto; provided, however, that nothing contained in this Release
shall release any person or entity from any obligation or liability it may have
arising out of or relating to (i) that certain Stock Purchase Agreement, dated
April 25, 2005 (the "Stock Purchase Agreement"), by and between Coach Japan
Holdings, Inc., Coach, Inc., Coach Japan, Inc., Coach Japan Investments, Inc.
and Sumitomo Corporation and (ii) any and all agreements, contracts,
certificates, letters or other documents delivered pursuant to, or in connection
with, the Stock Purchase Agreement;
(ii) acknowledge that this Release was made in exchange for good and
valuable consideration;
(iii) acknowledge that this Release represents the entire release
and may not be changed orally;
(iv) acknowledge that this Release is to be governed by New York law
without regard to the conflict of laws principles of each law; and
(v) acknowledge that for the purpose of this Release (i) the term
"Affiliate" has the meaning set forth in the Stock Purchase Agreement and (ii)
the term "Subsidiary" means, as to the entity in question, any corporation,
partnership, joint venture or other legal entity of
-A-1-
which the entity in question owns, directly or indirectly, 50% or more of the
stock of other equity interests the holders of which generally are entitled to
vote for the election of the board of directors or other governing body of such
corporation, partnership, joint venture or other legal entity.
Dated: July 1, 2005.
SUMITOMO CORPORATION, for itself and on
behalf of each of its past, present and
future parents, Subsidiaries and other
Affiliates, predecessors, successors and
assigns, and each of the foregoing's
officers, employees, directors,
representatives, agents and attorneys
By:
-------------------------------------
Title:
-------------------------------------
-A-2-
SCHEDULE I
- - Funding Agreement, dated July 30, 2001, entered into between Coach Japan,
Inc., Coach Japan Investments, Inc. and Sumitomo Corporation.
- - Shareholders Agreement, dated July 30, 2001, entered into between Coach
Japan Holdings, Inc., Coach Inc., Sumitomo Corporation and Coach Japan,
Inc.
- - Tokumei Kumiai Agreement, dated July 30, 2001, entered into between Coach
Japan, Inc. and Sumitomo Corporation.
- - Letter Agreement, dated September 21, 2001, between Sumitomo Corporation
and Coach Inc. relating to foreign exchange hedging policy.
-A-3-
Exhibit B
Coach Parties' Release
Each of the undersigned, (i) Coach Japan Holdings, Inc., a
corporation registered in Delaware, United States of America whose principal
place of business is at 516 West 34th Street, New York, New York 10001, United
States of America; (ii) Coach Inc., a corporation registered in Maryland, United
States of America whose principal place of business is at 516 West 34th Street,
New York, New York 10001, United States of America; (iii) Coach Japan, Inc., a
company incorporated in Japan whose principal place of business is at Aoyama
Palacio Tower, 6-3, Kitaaoyama 3-chome, Minato-ku, Tokyo 107-0061, Japan; and
(iv) Coach Japan Investments, Inc., a corporation registered in Delaware, United
States of America whose principal place of business is at 516 West 34th Street,
New York, New York 10001, United States of America, for itself and on behalf of
each of its respective past, present and future parents, Subsidiaries and other
Affiliates, predecessors, successors and assigns, and each of the foregoing's
officers, employees, directors, representatives, agents and attorneys, does
hereby:
(i) release Sumitomo Corporation, a company incorporated in Japan
whose principal place of business is at 1-8-11 Harumi, Chuo-ku, Tokyo 104-8610,
Japan, and each of its respective past, present and future parents, Subsidiaries
and other Affiliates, predecessors, successors and assigns, and each of the
foregoing's officers, employees, directors, representatives, agents and
attorneys from any and all liability and accountability with respect to any and
all actions, causes of action, suites, charges, disputes, controversies, debts,
dues, sums of money, damages, judgments, executions, claims and demands
whatsoever, in law or in equity, known or unknown, which the undersigned ever
had, now have or may hereafter have, for, upon, or by reason of any matters, act
omission, cause or thing whatsoever from the beginning of the world to the date
of this Release, including but not limited to any matter, cause or thing
relating to those contracts, agreements, arrangements and commitments set forth
on Schedule I hereto; provided, however, that nothing contained in this Release
shall release any person or entity from any obligation or liability it may have
arising out of or relating to (i) that certain Stock Purchase Agreement, dated
April 25, 2005 (the "Stock Purchase Agreement"), by and between Coach Japan
Holdings, Inc., Coach, Inc., Coach Japan, Inc., Coach Japan Investments, Inc.
and Sumitomo Corporation and (ii) any and all agreements, contracts,
certificates, letters or other documents delivered pursuant to, or in connection
with, the Stock Purchase Agreement;
(ii) acknowledge that this Release was made in exchange for good and
valuable consideration;
(iii) acknowledge that this Release represents the entire release
and may not be changed orally;
(iv) acknowledge that this Release is to be governed by New York law
without regard to the conflict of laws principles of each law; and
(v) acknowledge that for the purpose of this Release (i) the term
"Affiliate" has the meaning set forth in the Stock Purchase Agreement and (ii)
the term "Subsidiary" means, as to the entity in question, any corporation,
partnership, joint venture or other legal entity of which the entity in question
owns, directly or indirectly, 50% or more of the stock of other equity
interests the holders of which generally are entitled to vote for the election
of the board of directors or other governing body of such corporation,
partnership, joint venture or other legal entity.
Dated: July 1, 2005.
COACH JAPAN HOLDINGS, INC., for itself and
on behalf of each of its past, present and
future parents, Subsidiaries and other
Affiliates, predecessors, successors and
assigns, and each of the foregoing's
officers, employees, directors,
representatives, agents and attorneys
By:
-------------------------------------
Title:
-------------------------------------
COACH INC., for itself and on behalf of each
of its past, present and future parents,
Subsidiaries and other Affiliates,
predecessors, successors and assigns, and
each of the foregoing's officers, employees,
directors, representatives, agents and
attorneys
By:
-------------------------------------
Title:
-------------------------------------
COACH JAPAN, INC., for itself and on behalf
of each of its past, present and future
parents, Subsidiaries and other Affiliates,
predecessors, successors and assigns, and
each of the foregoing's
-B-2-
officers, employees, directors,
representatives, agents and attorneys
By:
-------------------------------------
Title:
-------------------------------------
COACH JAPAN INVESTMENTS, INC., for itself
and on behalf of each of its past, present
and future parents, Subsidiaries and other
Affiliates, predecessors, successors and
assigns, and each of the foregoing's
officers, employees, directors,
representatives, agents and attorneys
By:
-------------------------------------
Title:
-------------------------------------
-B-3-
SCHEDULE I
- - Funding Agreement, dated July 30, 2001, entered into between Coach Japan,
Inc., Coach Japan Investments, Inc. and Sumitomo Corporation.
- - Shareholders Agreement, dated July 30, 2001, entered into between Coach
Japan Holdings, Inc., Coach Inc., Sumitomo Corporation and Coach Japan,
Inc.
- - Tokumei Kumiai Agreement, dated July 30, 2001, entered into between Coach
Japan, Inc. and Sumitomo Corporation.
- - Letter Agreement, dated September 21, 2001, between Sumitomo Corporation
and Coach Inc. relating to foreign exchange hedging policy.
-B-4-
SCHEDULE 1
SUMITOMO SECONDEES
Name Date on which Secondment will Terminate
- ---- ---------------------------------------
Shintaro Kitsuda June 30, 2005
Toshiyuki Shimano June 30, 2005
Soichiro Fujiwara December 31, 2005
Yuko Okatsu December 31, 2005
-S-1-
SCHEDULE 2
SUPPORT CONTRACTS
Alltrans
SCS
Sumitrans
Mobile Star
Sumisho Lease
-S-2-
SCHEDULE 3
COMPETING BRANDS
Agnes B. Voyage
Bally
Bottega Venetta
Bulgari
Calvin Klein
Cole Hahn
Dickson Poon Accessories
Donna Karan/DKNY
Dooney and Bourke
Dunhill
Fendi
Ferragamo
Furla
Gucci
Gucci Group
Hartmann
Hermes
J.P. Todd
Kate Spade
Kitamura
Liz Claiborne Accessories
LVMH Accessories
Miu Miu
Nine West
Polo Ralph Lauren
Prada
Printemps Accessories
Sazaby
Timberland
Tumi
Vendome Group
-S-3-