EXHIBIT 10.21
AGREEMENT
AGREEMENT, dated as of October 17, 1994, by and between General Xxxxx, Inc. a
Delaware corporation ("GMI") and CPC International Inc., a Delaware corporation
("CPC"), (GMI and CPC collectively, the "Parties").
WHEREAS, the Parties are conducting negotiations concerning a possible joint
venture between them (the "Joint Venture") and, in connection with such
negotiations and with the possible formation and operation of the Joint Venture,
the Parties have requested access to certain confidential business information
of each other.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
in consideration of each Party's disclosure of the above referenced confidential
business information to the other Party (the scope and other terms of which
disclosure are not governed by this instrument), the Parties hereto agree, with
the intention of being legally bound, as follows:
1. Certain Definitions
(a) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations, as currently in effect (the "Exchange
Act Rules"), under the Securities Exchange Act of 1934, as
amended, as currently in effect (the "Exchange Act").
(b) "Applicable Debt Security" shall mean any evidence of
indebtedness (including notes and debentures) of either Party
which is either (i) convertible into equity securities or (ii)
not publicly traded.
(c) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 of the Exchange Act Rules, and, for the
purposes of this Agreement, a Person shall have "Beneficial
Ownership" of securities of which such Person is the
Beneficial Owner.
(d) "Common Stock" shall mean the common stock of each of the
Parties, "GMI Common Stock" shall mean the common stock $.10
par value of GMI and "CPC Common Stock" shall mean the common
stock $.25 par value of CPC.
(e) "CPC Security" shall mean any equity security and any
Applicable Debt Security of CPC, or right to acquire any such
equity or Applicable Debt Security, including by purchase,
conversion or exchange, including, but not limited to, CPC
Common Stock and preferred stock and "GMI Security" shall mean
any equity security and any Applicable Debt Security of GMI,
or right to acquire any such equity or Applicable Debt
Security,
including by purchase, conversion or exchange, including, but
not limited to, GMI Common Stock and preferred stock.
(f) "Group" shall mean any partnership, limited partnership,
Syndicate or other group within the meaning of Section
13(d)(3) of the Exchange Act.
(g) "Participant" shall have the meaning ascribed to such term
in Regulation 14A of the Exchange Act Rules.
(h) "Person" shall mean any individual, firm, corporation,
partnership, trust or other entity.
(i) "Proxies" shall have the meaning ascribed to such term in
Regulation 14A of the Exchange Act Rules.
(j) "Solicitation" shall have the meaning ascribed to such
term in Regulation 14A of the Exchange Act Rules.
(k) "Subsidiary" shall mean, with respect to any Person, any
corporation which is controlled by such Person by ownership of
securities or otherwise.
2. Representation and Warranty by each of the Parties
GMI represents and warrants to CPC that as of the date of this
Agreement neither GMI nor any of its Affiliates or Associates, (other
than employee benefit plans or pension trusts), is either the
Beneficial Owner or has any control of any CPC Securities. CPC
represents and warrants to GMI that as of the date of this Agreement
neither CPC nor any of its Affiliates or Associates (other than
employee benefit plans or pension trusts), is either the Beneficial
Owner or has any control of any GMI Securities.
3. Certain Agreements by GMI
GMI covenants with CPC that, without the prior written consent of CPC,
GMI and its Affliates and Associates, (other than employee benefit
plans or pension trusts), singly or acting together, in concert, or as
a Group with each other or any other Person, directly or indirectly
through one or more intermediaries or otherwise, shall not:
(a) acquire, offer to acquire or agree to acquire, by purchase
or otherwise, Beneficial Ownership of, or become the
Beneficial Owner of, or acquire an interest in, any CPC
Securities or any of the assets of either CPC or Subsidiary of
CPC except for sales of products in the ordinary course;
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(b) (i) directly or indirectly solicit proxies or become a
participant in a solicitation of proxies with respect to any
matter presented to CPC's stockholders for the exercise of
their voting rights, or (ii) engage in any course of conduct
for the purpose of influencing or affecting the stockholders
of CPC with respect to the exercise of their voting rights on
any matter presented for a vote by CPC's stockholders;
(c) otherwise act to seek control of or to influence, the
Board of Directors, management, policies or affairs of either
CPC or any Subsidiary of CPC;
(d) publicly (or in a manner requiring CPC to disclose
publicly) (i) propose any acquisition of any or all of the
assets of CPC or any of its Subsidiaries, or any acquisition
of any CPC Securities, or any merger, consolidation, business
combination or similar trasaction with, or change of control
of, CPC or any of its Subsidiaries or its or their assets,
(ii) make or propose a tender or exchange offer for any CPC
Securities, (iii) propose or suggest the possiblity of any of
the other actions set forth in this section 3, or (iv) propose
any amendment to, or modification or waiver of, any provision
of this Agreement;
(e) solicit, initiate, encourage, finance or assist any other
Person, Persons or Group to take or seek to take any action
which GMI is precluded hereunder from taking itself.
4. Certain Agreements by CPC
CPC covenants with GMI that, without the prior written consent of GMI,
CPC and its Affiliates and Associates, (other than employee benefit
plans or pension trust), singly or acting together, in concert, or as a
Group with each other or any other Person, directly or indirectly
through one or more intermediaries or otherwise, shall not:
(a) acquire, offer to acquire or agree to acquire, by purchase
or otherwise, Beneficial Ownership of, or become the
Beneficial Owner of, or acquire an interest in, any GMI
Securities or any of the assets of either GMI or any
Subsidiary of GMI except for sales of products in the ordinary
course;
(b) (i) directly or indirectly solicit proxies or become a
participant in a solicitation of proxies with respect to any
matter presented to GMI's stockholders for the exercise of
their voting rights, or (ii) engage in any course of conduct
for the purpose of influencing or affecting the stockholders
of GMI with respect to the exercise of their voting rights on
any matter presented for a vote by GMI stockholders;
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(c) otherwise act to seek control of or to influence, the
Board of Directors, management, policies or affairs of either
GMI or any Subsidiary of GMI;
(d) publicly (or in a manner requiring GMI to disclose
publicly) (i) propose any acquisition of any or all of the
assets of GMI or any of its Subsidiaries, or any acquisition
of any GMI Securities, or any merger, consolidation, business
combination or similar transaction with, or change of control
of, GMI or any of its Subsidiaries or its or their assets,
(ii) make or propose a tender or exchange offer for any GMI
Securities, (iii) propose or suggest the possibility of any of
the other actions set forth in this section 4, or (iv) propose
any amendment to, or modification or waiver of, any provision
of this Agreement.
(e) solicit, initiate, encourage, finance or assist any other
Person, Persons or Group to take or seek to take any action
which CPC is precluded hereunder from taking itself.
5. Term of Agreement
The term of this Agreement shall be the longer of (a) ten (10) years
from the last date on which both CPC and GMI have an interest in the
Joint Venture, or (b) ten (10) years from the date of the termination
of negotiations between the Parties with respect to the formation of
the Joint Venture in the event no such Joint Venture results therefrom.
6. No Solicitation of Employees
Each party agrees that as of the date hereof and for the longer of (a)
three years from the last date on which both Parties have an interest
in the JV or (b) three years from the date of termination of
unsuccessful negotiations between the Parties with respect to the
formation of the JV, it shall not directly or indirectly, solicit for
employment or hire any employee of the other Party or its Subsidiaries
or Affiliates with whom such Party has had contact or who become known
to such Party by reason of the JV or negotiations therefor; provided,
however, than this provision shall not prevent either Party from
employing any such person who contacts the Party on his or her own
initiative without any direct or indirect solicitation or encouragement
on the part of such Party.
7. Miscellaneous
(a) Applicable Law. This Agreement and the rights liabilities
of the Parties hereto shall be governed by and construed in
accordance with the laws of the State of Delaware applicable
to contracts made and to be performed therein.
(b) Submission to Jurisdiction. Each of the Parties hereby
agrees to submit to the exclusive jurisdiction of the Federal
or State Courts in the
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State of Delaware, in any legal action or proceeding relating
to or arising out of this Agreement and all actions
contemplated hereby. The Parties agree that service of process
in any such legal action or proceeding in the manner provided
in Section 7(e) hereof, in addition to any other means of
service permitted by the laws and rules applicable to such
court, shall be deemed valid service thereof.
(c) Specific Performance. Each Party agrees and acknowledges
that in the event of any breach by it of the terms of this
Agreement, the other Party would be irreparably harmed and
could not be made whole by monetary damages. It is accordingly
agreed that, in addition to any other remedy which may be
available at law or in equity, specific performance of this
Agreement and mandatory injunctive or other relief, including
the divestiture of CPC Securities or GMI Securities (as the
case may be) by the breaching Party, shall be remedies
available under this Agreement, as may be necessary or
appropriate to carry out the intent of the Parties with
respect to this Agreement, in any action instituted in any
court having subject matter jurisdiction thereof.
(d) Counterparts. This Agreement may be executed in any number
of counterparts. Any single counterpart or set of counterparts
signed by the Parties shall constitute a full and original
Agreement for all purposes.
(e) Notices. In any case where any notice, service of process
or other communication is required or permitted to be given
hereunder, such notice, service of process or other
communication shall be in writing and (i) personally
delivered, (ii) sent by postage prepaid registered first class
post (if inland) or airmail (if overseas) or (except for
service of process) (iii) transmitted by telex, telecopy or
cable (with postage prepaid confirmation) at the following
addresses (or such other address as the Parties may designate
from time to time to each other by due notice pursuant to this
Section 7 (e)):
If to GMI General Xxxxx, Inc.
Number Xxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
If to CPC CPC International Inc.
Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
(f) Successors. This Agreement shall be binding upon inure to
the benefit of the Parties hereto and their respective
directors, officers, legal representatives, attorneys,
successors and assigns, including any Person who may succeed
to the assets or business of either Party by way of a
consolidation, merger, sale of substantially all of such
Party's assets or purchase of substantially all of such
Party's stock. This
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Agreement shall not be assigned without the prior written
consent of all of the Parties hereto.
(g) Entire Agreement.The terms and conditions contained herein
constitute the entire agreement between the Parties relating
to the subject matter of this Agreement and shall supersede
all previous communications between the Parties with respect
to the subject matter of this Agreement.
(h) Amendment. This Agreement may be varied, amended or
extended only by the written agreement of the Parties through
their duly authorized officers or representatives.
(i) Expenses. Each of the Parties shall pay its own legal and
other costs, charges and expenses connected with this
Agreement and the performance of their obligations hereunder.
(j) Severability. If any provision (or any part thereof) of
this Agreement is held illegal or unenforceable in a judicial
proceeding, such provision (or the affected part thereof)
shall be severed from this Agreement to that extent and shall
be inoperative so long as such judicial determination shall
remain in effect, and the remainder of this Agreement shall
otherwise remain binding on the Parties hereto, it being the
intention of the parties, in the event any such provision is
held illegal or unenforceable in part, that such provision be
enforced to the fullest scope and extent permissible
consistent with the original intent of such provision and the
ruling of such judicial authority.
(k) Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of
this Agreement.
(l) No Waiver of Rights. No failure or delay on the part of
any Party in the exercise of any power of right hereunder
shall operate as a waiver thereof. No single or partial
exercise of any right or power hereunder shall operate as a
waiver of such right or power or of any other right or power.
The waiver by any Party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
other or subsequent breach hereunder. All rights and remedies
existing under this Agreement are cumulative with, and not
exclusive of, any rights or remedies otherwise available.
(m) No Third-Party Rights. This Agreement shall not be deemed
or construed in any way to result in the creation of any
rights in any Person not a Party to this Agreement.
(n) Further Assurances. At the request of either Party hereto,
the other Party hereto shall execute and deliver (and shall
cause their Affiliates and Associates to execute and deliver)
to such Party such other documents
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and instruments as may be reasonably necessary to implement or
evidence the foregoing.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their respective duly authorized officers as of the day and year fist written
above.
Witness GENERAL XXXXX, INC.
/s/ Xxxxxx Xxxxxx By: /s/ X. X. Xxxxxxx, Xx.
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Its:
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Witness CPC INTERNATIONAL INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: Chairman and Chief Executive Officer
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