EXHIBIT 10.15
AGREEMENT
AGREEMENT, dated November 29, 1989, by and between General Xxxxx, Inc. a
Delaware corporation ("Protected") and Nestle S.A., a Swiss corporation
("Limited"), (Protected and Limited collectively, the "Parties").
WHEREAS, the Parties propose to enter into certain negotiations concerning a
possible joint venture between them (the "Joint Venture") and, in connection
with such negotiations and with the formation and operation of the Joint Venture
in the event agreement is reached in that connection, Limited has requested
access to certain confidential business information of Protected.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
in consideration of Protected's disclosure of the above-referenced confidential
business information to Limited (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) "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.
(c) "Common Stock" shall mean the common stock $.75 par value, of
Protected.
(d) "Protected Security" shall mean any equity or debt security of
Protected, or right to acquire any such equity or debt security,
including by purchase, conversion or exchange, including, but not
limited to, Common Stock, preferred stock, notes, debentures and other
evidences of indebtedness.
(e) "Group" shall mean any partnership, limited partnership, syndicate or
other group within the meaning of Section 13(d)(3) of the Exchange Act.
(f) "Participant" shall have the meaning ascribed to such term in
Regulation 14A of the Exchange Act Rules.
(g) "Person" shall mean any individual, firm, corporation, partnership,
trust or other entity.
(h) "Proxies" shall have the meaning ascribed to such term in Regulation
14A of the Exchange Act Rules.
(i) "Solicitation" shall have the meaning ascribed to such term in
Regulation 14A of the Exchange Act Rules.
(j) "Subsidiary" shall mean, with respect to any Person, any corporation
which is controIled by such Person, by ownership of securities or
otherwise.
2. Representation and Warranty by Limited
Limited represents and warrants to Protected that as of the date of
this Agreement neither Limited nor any of its Affiliates or Associates,
(other than employee benefit plans or pension trusts holding Protected
Securities solely for investment purposes), is either the Beneficial
Owner or has any control of any Protected Securities.
3. Certain Agreements by Limited
Limited covenants with Protected that, without the prior written
consent of Protected, Limited and its Affiliates and Associates, (other
than employee benefit plans or pension trusts holding Protected
Securities solely for investment purposes), 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 Protected Securities or any of the
assets of either Protected or any Subsidiary of Protected;
(b) (i) directly or indirectly solicit proxies or become a participant in a
solicitation of proxies with respect to any matter presented to
Protected'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 Protected with respect to the exercise of
their voting rights on any matter presented for a vote by Protected's
stockholders;
(c) otherwise act to seek control of, or to influence, the Board of
Directors, management, policies or affairs of either Protected or any
Subsidiary of Protected;
(d) publicly (or in a manner requiring Protected to disclose publicly)
(i) propose any acquisition of any or all of the assets of Protected or
any of its Subsidiaries, or any acquisition of any Protected
Securities, or any merger, consolidation, business combination or
similar transaction with, or change of control of, Protected or any of
its Subsidiaries or its or their assets, (ii) make or propose a tender
or exchange offer for any Protected Securities, (iii) propose or
suggest the possibility 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 Limited is
precluded hereunder from taking itself.
4. Term of Agreement
The term of this Agreement shall be the longer of (a) ten (10) years
from the last date on which both Protected and Limited 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.
5. Miscellaneous
(a) Applicable Law. This Agreement and the rights and 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 United States District Court for
the District of Minnesota, sitting in Minneapolis, Minnesota, 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 5(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. Limited agrees and acknowledges that in the event
of any breach by it of the terms of this Agreement, Protected would be
irreparably harmed and could not be made whole by monetary damages. It
is accordingly agreed that Protected, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of this Agreement, and shall be entitled to
mandatory injunctive or other relief, including the divestiture of
Protected Securities by Limited, 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 5(e)):
If to Protected: General Xxxxx, Inc.
Number Xxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: General Counsel
If to Limited: Nestle S.A.
Xxxxxx Xxxxxx 00
XX - 0000 Xxxxx
Attention: Legal Department
(f) Successors. This Agreement shall be binding upon and 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
Agreement shall not be assigned without the prior written consent of
all 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 perfomance
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 Partv 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) Choice of Language. In the event of an inconsistency between any of the
terms of this Agreement and any translation thereof into another
language, the English language version shall control.
(n) 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.
(o) 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 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 first
written above.
Witness: GENERAL XXXXX, INC.
/s/ X. X. Xxxxxxxxx by: /s/ X. X. Xxxxxx
---------------------------------- ----------------------------------
Witness: NESTLE S.A.
/s/ X. Xxxxxx by: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------- ----------------------------------
Xxxx X. Xxxxxxxxxx
Executive Vice President
AGREEMENT
AGREEMENT, dated November 29, 1989, by and between Nestle S.A., a Swiss
corporation ("Protected") and General Xxxxx, Inc., a Delaware corporation
("Limited"), (Protected and Limited collectively, the "Parties").
WHEREAS, the Parties propose to enter into certain negotiations concerning a
possible joint venture between them (the "Joint Venture") and, in connection
with such negotiations and with the formation and operation of the Joint Venture
in the event agreement is reached in that connection, Limited has requested
access to certain confidential business information of Protected.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
in consideration of Protected's disclosure of the above-referenced confidential
business information to Limited (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) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the Exchange Act Rules, (whether or not the relevant security
shall be registered und the Exchange Act), and, for the purposes of
this Agreement, a Person shall have "Beneficial Ownership" of
securities of which such Person is the Beneficial Owner.
(c) "Shares" shall mean the shares, having a nominal value of 100 Swiss
francs each, of Protected, whether in bearer form or registered form.
(d) "Protected Security" shall mean any equity or debt security of
Protected, or right to acquire any such equity or debt security,
including by purchase, conversion or exchange, including, but not
limited to, Shares, depositary receipts evidencing the right to receive
Shares, preferred stock, notes, debentures and other evidences of
indebtedness.
(e) "Group" shall mean any partnership, limited partnership, syndicate or
other group within the meaning of Section 13(d)(3) of the Exchange Act,
(whether or not the relevant security shall be registered under the
Exchange Act).
(f) "Participant" shall have the meaning ascribed to such term in
Regulation 14A of the Exchange Act Rules, (whether or not the relevant
security shall be registered under the Exchange Act).
(g) "Person" shall mean any individual, firm, corporation, partnership,
trust or other entity.
(h) "Proxies" shall have the meaning ascribed to such term in Regulation
14A of the Exchange Act Rules, (whether or not the relevant security
shall be registered under the Exchange Act).
(i) "Solicitation" shall have the meaning ascribed to such term in
Regulation 14A of the Exchange Act Rules, (whether or not the relevant
security shall be registered under the Exchange Act).
(j) "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 Limited
Limited represents and warrants to Protected that as of the date of
this Agreement neither Limited nor any of its Affiliates or Associates,
(other than employee benefit plans or pension trusts holding Protected
Securities solely for investment purposes), is either the Beneficial
Owner or has any control of any Protected Securities.
3. Certain Agreements by Limited
Limited covenants with Protected that, without the prior written
consent of Protected, Limited and its Affiliates and Associates, (other
than employee benefit plans or pension trusts holding Protected
Securities solely for investment purposes), 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 Protected Securities or any of the
assets of either Protected or any Subsidiary of Protected;
(b) (i) directly or indirectly solicit proxies or become a participant in a
solicitation of proxies with respect to any matter presented to
Protected'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 Protected with respect to the exercise of
their voting rights on any matter presented for a vote by Protected's
stockholders;
(c) otherwise act to seek control of, or to influence, the Board of
Directors, management, policies or affairs of either Protected or any
Subsidiary of Protected;
(d) publicly (or in a manner requiring Protected to disclose publicly) (i)
propose any acquisition of any or all of the assets of Protectedor any
of its Subsidiaries, or any acquisition of any Protected Securities, or
any merger, consolidation, business combination or similar transaction
with, or change of control of, Protected or any of its Subsidiaries or
its or their assets, (ii) make or propose a tender or exchange offer
for
any Protected Securities, (iii) propose or suggest the possibility 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 Limited is
precluded hereunder from taking itself.
4. Term of Agreement
The term of this Agreement shall be the longer of (a) ten (10) years
from the last date on which both Protected and Limited 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.
5. Miscellaneous
(a) Applicable Law. This Agreement and the rights and liabilities of the
Parties hereto shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to
be performed therein.
(b) Submission to Jurisdiction. Each of the Parties hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America
located in the City of New York for any actions, suits or proceedings
arising out of or relating to this Agreement and the transactions
contemplated hereby (and each Party agrees not to commence any such
action, suit or proceeding except in such courts), and further agrees
that service of any process, summons, notice or document by U.S.
registered mail to its address set forth below shall be effective
service of process for any action, suit or proceeding brought against
such Party in any such court. Each of the Parties hereby irrevocably
and unconditionally waives any objection to the laying of venue of any
action, suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby in the courts of the State of
New York or the United States of America located in the City of New
York, and hereby further irrevocably and unconditionally waives and
agrees not to plead or
claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
(c) Specific Performance. Limited agrees and acknowledges that in the event
of any breach by it of the terms of this Agreement, Protected would be
irreparably harmed and could not be made whole by monetary damages. It
is accordingly agreed that Protected, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of this Agreement, and shall be entitled to
mandatory injunctive or other relief, including the divestiture of
Protected Securities by Limited, 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 5(e)):
If to Protected: Nestle S.A.
Xxxxxx Xxxxxx 00
XX - 0000 Xxxxx
Attention: Legal Department
If to Limited: General Xxxxx, Inc.
Number Xxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: General Counsel
(f) Successors. This Agreement shall be binding upon and 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 Agreement shall not be
assigned without the prior written consent of all 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) Choice of Language. In the event of an inconsistency between any of the
terms of this Agreement and any translation thereof into another
language, the English language version shall control.
(n) 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.
(o) 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 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 first
written above.
Witness: NESTLE S.A.
/s/ X. Xxxxxx by: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------- ----------------------------------
Xxxx X. Xxxxxxxxxx
Executive Vice President
Witness: GENERAL XXXXX, INC.
/s/ X. X. Xxxxxxxxx by: /s/ X. X. Xxxxxx
---------------------------------- ----------------------------------
