Exhibit 2.1
FORM OF DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT is dated as of
December [ ], 1997, between CPC International Inc., a Delaware
corporation ("CPC"), and Corn Products International, Inc., a Delaware
corporation and wholly owned subsidiary of CPC ("Corn Products").
WHEREAS, CPC, directly and acting through its direct
and indirect subsidiaries and affiliates, currently engages in
two principal businesses: (1) a branded foods business, producing
chiefly soups, sauces, bouillons, and related products;
dressings; fresh baked products; starches; desserts; spreads; and
other products marketed through the retail, clubstore, mass
merchandising and foodservice trades (the "Branded Foods
Business"); and (2) a corn refining business, producing a large
variety of food ingredients and industrial products derived from
the wet milling of corn and other farinaceous materials for use
in more than 60 industries, and including the entire business of
Enzyme Bio-Systems Ltd. (the "Corn Refining Business");
WHEREAS, the Board of Directors of CPC has determined
that it is appropriate, desirable and in the best interests of
CPC, Corn Products, the holders of shares of common stock, par
value $0.25 per share, of CPC (the "CPC Common Stock") and the
respective businesses, to separate from CPC the worldwide assets
relating to the Corn Refining Business, and to cause such assets
to be owned and such business to be conducted, directly or
indirectly, by an independent, publicly-traded company;
WHEREAS, in order to effect such separation, the Board
of Directors of CPC has determined that it is appropriate,
desirable and in the best interests of CPC, Corn Products, the
holders of CPC Common Stock and the respective businesses to
transfer the worldwide assets relating to the Corn Refining
Business to Corn Products and then to distribute to the holders
of the CPC Common Stock, without consideration being paid by such
holders, all the outstanding shares of common stock, par value
$0.01 per share, of Corn Products, together with the appurtenant
preferred stock purchase rights (the "Corn Products Common
Stock"), in a transaction that qualifies under Section 355 and
Section 368(a)(1)(D) of the Internal Revenue Code of 1986, as
amended;
WHEREAS, CPC and Corn Products desire to allocate and
transfer such assets, and to allocate and assign responsibility
for certain liabilities relating to the Corn Refining Business,
between the parties based upon their needs and activities; and
WHEREAS, CPC and Corn Products desire to set forth the
principal corporate transactions required to effect such
Distribution (as defined herein) and to set forth other
agreements that will govern certain other matters following the
Distribution.
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained in this Agreement,
the parties hereby agree as follows:
ARTICLE I. DISTRIBUTION TRANSACTIONS AND RELATED AGREEMENTS
SECTION 1.1. Certain Distribution Transactions.
(a) Asset Transfers. On or prior to the Distribution Date,
or thereafter as specifically stated on Schedule 1.1(a)(1):
(i) CPC shall, on behalf of itself and its Subsidiaries,
transfer or cause to be transferred to Corn
Products or another member of the Corn
Products Group effective prior to or as of
the Effective Time all of CPC's and its
Subsidiaries' right, title and interest in
the Corn Products Assets (except for (A) such
Assets to be transferred at a later time as
specified on Schedule 1.1(a)(1), which may be
updated by mutual agreement of the parties at
any time prior to the Distribution Date, and
(B) those Assets listed or described on
Schedule 1.1(a)(2)).
(ii) Corn Products shall, on behalf of itself and
its Subsidiaries, transfer or cause to be
transferred to CPC or another member of the
CPC Group effective prior to or as of the
Effective Time all of Corn Products' and its
Subsidiaries' right, title and interest, if
any, in the CPC Assets.
(b) Charter; By-laws; Rights Plan. The
Certificate of Incorporation and By-laws and the Rights Agreement
filed by Corn Products with the SEC as exhibits to the Form 10
shall be the Certificate of Incorporation and By-laws and the
Rights Agreement in effect on the Distribution Date.
(c) Directors. The individuals identified in the
Information Statement as directors of Corn Products shall be the
directors of Corn Products on the Distribution Date.
(d) Certain Licenses and Permits. Without
limiting the generality of the obligations set forth in Section
1.1(a), on or prior to the Distribution Date or as soon as
reasonably practicable thereafter (except as specified on
Schedule 1.1(a)(1)):
(i) All licenses, permits, approvals, emission reduction
credits and authorizations issued by any
Governmental Entity set forth on Schedule
1.1(d) (collectively, the "Corn Products
Permits") shall be duly and validly
transferred or caused to be transferred by
CPC to the appropriate member of the Corn
Products Group. To the extent any Corn
Products Permit is not transferable, CPC
shall obtain new licenses, permits or
authorizations in the name of an appropriate
member of the Corn Products Group prior to
the Distribution Date or as soon as
reasonably practicable thereafter.
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(ii) Any transferable licenses, permits and
authorizations issued by Governmental
Authorities which relate primarily to the CPC
Business but which are held in the name of
any member of the Corn Products Group, or in
the name of any employee, officer, director,
stockholder, or agent of any such member, or
otherwise, on behalf of a member of the CPC
Group shall be duly and validly transferred
or caused to be transferred by Corn Products
to the appropriate member of the CPC Group.
(e) Transfer of Agreements. Without limiting the
generality of the obligations set forth in Section 1.1(a):
(i) CPC hereby agrees that on or prior to the Distribution
Date or as soon as reasonably practicable
thereafter, subject to the limitations set
forth in this Section 1.1(e), it will, and it
will cause each member of the CPC Group to,
assign, transfer and convey to the
appropriate member of the Corn Products Group
all of CPC's or such member of the CPC
Group's respective right, title and interest
in and to any and all Corn Products Contracts
(except for such Corn Products Contracts to
be transferred at a later time as specified
on Schedule 1.1(a)(1)).
(ii) Corn Products hereby agrees that on or prior to the
Distribution Date or as soon as reasonably
practicable thereafter, subject to the
limitations set forth in this Section 1.1(e),
it will, and it will cause each member of the
Corn Products Group to, assign, transfer and
convey to the appropriate member of the CPC
Group all of Corn Products' or such member of
the Corn Products Group's respective right,
title and interest in and to any and all CPC
Contracts.
(iii) Subject to the provisions of this Section
1.1(e), any agreement to which any of the
parties hereto or any of their Subsidiaries
is a party that inures to the benefit of both
the CPC Business and Corn Products Business
shall, to the extent possible, be assigned in
part so that each party shall be entitled to
the rights and benefits inuring to its
business under such agreement.
(iv) The assignee of any agreement assigned, in whole
or in part, hereunder (an "Assignee") shall
assume and agree to pay, perform, and fully
discharge all obligations of the assignor
under such agreement or, in the case of a
partial assignment under paragraph (e)(iii),
such Assignee's related portion of such
obligations as determined in accordance with
the terms of the relevant agreement, where
determinable on the face thereof, and
otherwise as determined
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in accordance with the practice of the
parties prior to the Distribution.
(v) Notwithstanding anything in this Agreement to the
contrary, this Agreement shall not constitute
an agreement to assign any agreement, in
whole or in part, or any rights thereunder if
the agreement to assign or attempt to assign,
without the consent of a third party, would
constitute a breach thereof or in any way
adversely affect the rights of the assignor
or Assignee thereof. Until such consent is
obtained, or if an attempted assignment
thereof would be ineffective or would
adversely affect the rights of any party
hereto so that the intended Assignee would
not, in fact, receive all such rights, the
parties will cooperate with each other in any
arrangement designed to provide for the
intended Assignee the benefits of (or in the
case of any agreement subject to clause (iii)
above, the portion of such benefits), and to
permit the intended Assignee to assume the
Liabilities (or the appropriate portion
thereof) under, any such agreement.
(f) Consents. The parties hereto shall use their
commercially reasonable efforts to obtain required consents for
transfer and/or assignment of licenses, permits and
authorizations of Governmental Authorities and of agreements
hereunder.
(g) Other Transactions. Except as specified on
Schedule 1.1(a)(1), on or prior to the Distribution Date, each of
CPC and Corn Products shall have consummated (i) the transactions
specified on the list of pre-Distribution reorganization steps
set forth in Schedule 1.1(g) and (ii) those other transactions in
connection with the Distribution that are described in or
contemplated by the Information Statement and the ruling (the
"Ruling") granted by the Internal Revenue Service in connection
with the Distribution, as well as the transactions described in
the ruling request submissions by CPC to the Internal Revenue
Service insofar as the Ruling is premised on the completion of
such transactions, and not specifically referred to in
subparagraphs (a) - (f) above.
(h) Pollution Control Bonds; Industrial Revenue
Bonds. Pursuant to the terms of the Lease Assumption, CPC will
assign its leasehold interests in certain real and personal
property located in Summit/Argo, Illinois which are subject to
the terms of the Pollution Control Bonds set forth on Schedule
1.1(h)(1). Corn Products shall comply with the terms and
conditions of, and covenants and agreements set forth in, the
Lease Assumption. With respect to the Corn Products Assets that
are subject to the Industrial Revenue Bonds and related documents
set forth on Schedule 1.1(h)(2) hereto, Corn Products agrees that
upon transfer of the Projects (as defined in the applicable
documents) to Corn Products, it will comply with the terms and
conditions of the documents described in Schedule 1.1(h)(2); and
acknowledges that the interest on the Industrial Revenue Bonds is
intended to be tax-exempt to the bondholders for purposes of U.S.
federal income taxation. In addition, Corn Products covenants
that (i) so long as the applicable Industrial Revenue Bonds are
outstanding, Corn Products will use and operate each
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Project as a "project" within the meaning of the applicable law
identified in the documents described in Schedule 1.1(h)(2),
including any amendments and supplements to such laws, and (ii)
Corn Products will not cause the use of the Project to be changed
to a use, or take or authorize or permit any action, that would
result in any interest paid on such bonds to be included in the
gross income of any holder thereof for purposes of U.S. federal
income taxation. Corn Products shall notify CPC 90 days prior to
the disposition or change in ownership of any Project, or the
occurrence of any circumstances which may result in a change in
the use of any Project that would cause any interest paid on such
bonds to be included in the gross income of any holder for
purposes of U.S. federal income taxation.
SECTION 1.2. Treatment of Intercompany Accounts. All
intercompany receivables, payables and loans (other than
receivables, payables and loans otherwise specifically provided
for hereunder or under any Ancillary Agreement, including
payables created or required hereby or by any Ancillary
Agreement), including, without limitation, in respect of any cash
balances, any cash balances representing deposited checks or
drafts for which only a provisional credit has been allowed or
any cash held in any centralized cash management system, between
any member of the Corn Products Group, on the one hand, and any
member of the CPC Group, on the other hand, which exist and are
reflected in the accounting records of the parties shall, to the
extent practicable, be paid or settled prior to the Distribution
Date, and otherwise thereafter, in the ordinary course of
business in a manner consistent with the payment or settlement of
similar accounts arising from transactions with third parties.
SECTION 1.3. Liabilities.
(a) Assumptions and Satisfaction of Liabilities.
Except as otherwise specifically set forth in any Ancillary
Agreement, from and after the Effective Time, (i) CPC shall cause
an appropriate member of the CPC Group to assume, pay, perform
and discharge each CPC Liability and (ii) Corn Products shall
cause an appropriate member of the Corn Products Group to assume,
pay, perform and discharge each Corn Products Liability. To the
extent reasonably requested to do so by the other party hereto,
each party hereto agrees to sign, or to cause the appropriate
member of the CPC Group or the Corn Products Group to sign, such
documents, in a form reasonably satisfactory to the other party,
as may be reasonably necessary to evidence the assumption of any
Liabilities hereunder.
(b) Transaction Liabilities. For purposes of this
Agreement, including Article III hereof, CPC agrees with Corn
Products that (i) any and all Liabilities arising from or based
upon misstatements in or omissions from the Form 10 or the
Information Statement and (ii) except as otherwise provided in
any Ancillary Agreement, any and all Liabilities otherwise
arising out of the transactions contemplated by this Agreement
(including any stock transfer taxes or real estate transfer taxes
relating to the pre-Distribution separation of the Corn Refining
Business from the CPC Business) in order to effectuate the
Distribution, including the worldwide separation of the Corn
Products Business from the CPC Business (except for any
liabilities with respect to any other Tax, the treatment of which
shall be governed by the Tax Indemnification Agreement and the
Tax Sharing Agreement), shall be deemed to be CPC Liabilities and
not Corn Products Liabilities.
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SECTION 1.4. Resignations. Except as described in the
Information Statement or as otherwise agreed between the parties,
CPC shall cause all of its employees to resign, effective as of
the Effective Time, from all positions as officers or directors
of any member of the Corn Products Group in which they serve, and
Corn Products shall cause all of its employees to resign,
effective as of the Effective Time, from all positions as
officers or directors of any member of the CPC Group in which
they serve.
SECTION 1.5. Further Assurances. In case at any time
after the Effective Time any further action is reasonably
necessary or desirable to carry out the purposes of this
Agreement and the Ancillary Agreements, the proper officers of
each party to this Agreement shall take all such necessary
action. Without limiting the foregoing, CPC and Corn Products
shall use their commercially reasonable efforts promptly to
obtain all consents and approvals, to enter into all amendatory
agreements and to make all filings and applications that may be
required for the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, including, without
limitation, all applicable governmental and regulatory filings.
SECTION 1.6. Limitation on Representations and
Warranties. Each of the parties hereto agrees that no party
hereto is, in this Agreement or in any other agreement or
document contemplated by this Agreement or otherwise, making any
representation or warranty whatsoever, as to title or value of
Assets being transferred. It is also agreed that, notwithstanding
anything to the contrary otherwise expressly provided in a
relevant Conveyancing and Assumption Instrument, all Assets
either transferred to or retained by the parties, as the case may
be, shall be "as is, where is" and that (subject to Section 1.5)
the party to which such Assets are to be transferred hereunder
shall bear the economic and legal risk that such party's or any
of the Subsidiaries' title to any such Assets shall be other than
good and marketable and free from encumbrances. Similarly, each
party hereto agrees that, except as otherwise expressly provided
in the relevant Conveyancing and Assumption Instrument, no party
hereto is representing or warranting in any way that the
obtaining of any consents or approvals, the execution and
delivery of any amendatory agreements and the making of any
filings or applications contemplated by this Agreement will
satisfy the provisions of any or all applicable agreements or the
requirements of any or all applicable laws or judgments, it being
agreed that the party to which any Assets are transferred shall
bear the economic and legal risk that any necessary consents or
approvals are not obtained or that any requirements of laws or
judgments are not complied with.
SECTION 1.7. Guarantees; Security Interests.
(a) Except as otherwise specified in any
Ancillary Agreement, CPC and Corn Products shall use their
commercially reasonable efforts to have, on or prior to the
Distribution Date, or as soon as practicable thereafter, any
member of the CPC Group removed as guarantor of or obligor for
any Corn Products Liability, including, without limitation, in
respect of those guarantees set forth on Schedule 1.7(a). CPC and
Corn Products shall use commercially reasonable efforts to
remove, or cause the removal of, any liens on, or other security
interests in, CPC Assets, which security interests arise
primarily from Corn Products Liabilities.
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(b) Except as otherwise specified in any
Ancillary Agreement, CPC and Corn Products shall use their
commercially reasonable efforts to have, on or prior to the
Distribution Date, or as soon as practicable thereafter, any
member of the Corn Products Group removed as guarantor of or
obligor for any CPC Liability. Corn Products and CPC shall use
commercially reasonable efforts to remove, or cause the removal
of, any liens on, or other security interests in, Corn Products
Assets, which security interests arise primarily from CPC
Liabilities.
(c) If CPC or Corn Products is unable to obtain,
or to cause to be obtained, any such required removal as set
forth in clauses (a) and (b) of this Section 1.7, the applicable
guarantor or obligor shall continue to be bound as such and,
unless not permitted by law or the terms thereof, the relevant
beneficiary shall or shall cause one of its Subsidiaries, as
agent or subcontractor for such guarantor or obligor to pay,
perform and discharge fully all the obligations or other
liabilities of such guarantor or obligor thereunder from and
after the date hereof. To the extent any member of the CPC Group
or any member of the Corn Products Group is required to pay or
expend any amount which it would not have been required to pay or
expend if the parties hereto had been able to obtain such
required removal as set forth in clauses (a) and (b) of this
Section 1.7, (i) Corn Products shall cause the appropriate member
of the Corn Products Group or (ii) CPC shall cause the
appropriate member of the CPC Group to reimburse the applicable
member of the CPC Group or the Corn Products Group, as the case
may be, for such amount.
SECTION 1.8. Witness Services. At all times from and
after the Distribution Date, CPC and Corn Products shall use
their commercially reasonable efforts to make available to the
other, upon reasonable written request, its and its Subsidiaries'
then current officers, directors, employees and agents as
witnesses to the extent that (i) such persons may reasonably be
required in connection with the prosecution or defense of any
Action in which the requesting party may from time to time be
involved and (ii) there is no conflict in the Action between the
requesting party and CPC or Corn Products, as applicable. A party
providing witness services to the other party under this Section
shall be entitled to receive from the recipient of such services,
upon the presentation of invoices therefor, payments for such
amounts, relating to disbursements and other out-of-pocket
expenses (which shall be deemed to exclude the costs of salaries
and benefits of employees who are witnesses), as may be
reasonably incurred in providing such witness services.
SECTION 1.9. Transfers Not Effected Prior to the
Distribution; Transfers Deemed Effective as of the Distribution
Date. To the extent that any transfers discussed in this Article
I shall not have been consummated on or prior to the Distribution
Date, the parties shall cooperate to effect such transfers as
promptly following the Distribution Date as shall be practicable.
Nothing herein shall be deemed to require the transfer of any
Assets or the assumption of any Liabilities which by their terms,
operation of law or agreement of the parties cannot or will not
be transferred on or prior to the Distribution Date; provided,
however, that the parties hereto and their respective
Subsidiaries shall cooperate to obtain any necessary consents or
approvals for the transfer of all Assets and Liabilities
contemplated to be transferred pursuant to this Article I. In the
event that any such transfer of Assets or Liabilities has not
been
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consummated, from and after the Distribution Date, the party
retaining such Asset or Liability shall hold such Asset in trust
for the use and benefit of the party entitled thereto (at the
expense and under the management and direction of the party
entitled thereto) or retain such Liability for the account of the
party by whom such Liability is to be assumed pursuant hereto, as
the case may be, and take such other action as may be reasonably
requested by the party to whom such Asset is to be transferred,
or by whom such Liability is to be assumed, as the case may be,
in order to place such party, insofar as is reasonably possible,
in the same position as would have existed had such Asset or
Liability been transferred as contemplated hereby. As and when
any such Asset or Liability becomes transferable, such transfer
shall be effected forthwith. The parties agree that, as of the
Distribution Date, each party hereto shall be deemed to have
acquired complete and sole beneficial ownership over all of the
Assets, together with all rights, powers and privileges incident
thereto, and shall be deemed to have assumed in accordance with
the terms of this Agreement all of the Liabilities, and all
duties, obligations and responsibilities incident thereto, which
such party is entitled to acquire or required to assume pursuant
to the terms of this Agreement.
SECTION 1.10. Conveyancing and Assumption Instruments.
In connection with the transfers of Assets and the assumptions of
Liabilities contemplated by this Agreement, the parties shall
execute or cause to be executed by the appropriate entities
Conveyancing and Assumption Instruments in such form as the
parties shall reasonably agree, including the transfer of real
property with deeds as may be appropriate. The transfer of
capital stock shall be effected by means of delivery of stock
certificates and executed stock powers and notation on the stock
record books of the corporation or other legal entities involved,
or by such other means as may be required or permitted in any
jurisdiction to transfer title to stock and, to the extent
required by applicable law, by notation on public registries.
SECTION 1.11. Ancillary Agreements. Prior to the
Distribution Date, CPC and Corn Products shall enter into, and/or
(where applicable) shall cause members of their respective Groups
to enter into, the Ancillary Agreements and any other agreements
in respect of the Distribution reasonably necessary or
appropriate in connection with the transactions contemplated
hereby and thereby.
SECTION 1.12. Corporate Names.
(a) Except as otherwise specifically provided in
any Ancillary Agreement:
(i) as soon as reasonably practicable after the
Distribution Date but in any event within one
year thereafter, Corn Products will, at its
own expense, remove (or, if necessary, on an
interim basis, cover up) any and all exterior
signs and other identifiers located on any of
Corn Products' property or premises or on the
property or premises used by Corn Products or
its Subsidiaries (except property or premises
to be shared with CPC or its Subsidiaries
after the Distribution) which refer or
pertain to CPC or which include the CPC name,
logo or any
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other trademark or the name of any member of
the CPC Group or any other CPC intellectual
property; and
(ii) as soon as is reasonably practicable after the
Distribution Date but in any event within one
year thereafter, Corn Products will, and will
cause its Subsidiaries to, remove from all
packaging materials, letterhead, envelopes,
invoices and other communications media of
any kind, all references to CPC, including
the CPC name, logo and any other trademark or
name of any member of the CPC Group or any
other CPC intellectual property (except that
Corn Products shall not be required to take
any such action with respect to materials in
the possession of customers and Corn Products
may, until the first anniversary of the
Distribution Date, continue to use existing
stock and supplies), and neither Corn
Products nor any of its Subsidiaries shall
use or display the CPC name, logo or other
trademarks or name of any member of the CPC
Group or any other CPC intellectual property
without the prior written consent of CPC.
(b) Except as otherwise specifically provided in
any Ancillary Agreement:
(i) as soon as reasonably practicable after the
Distribution Date but in any event within one
year thereafter, CPC will, at its own
expense, remove (or, if necessary, on an
interim basis, cover up) any and all exterior
signs and other identifiers located on any of
CPC's property or premises or on the property
or premises used by CPC or its Subsidiaries
(except property or premises to be shared
with Corn Products or its Subsidiaries after
the Distribution) which refer or pertain to
Corn Products or which include the Corn
Products name, logo or any other trademark or
the name of any member of the Corn Products
Group or any other Corn Products intellectual
property; and
(ii) as soon as is reasonably practicable after the
Distribution Date but in any event within one
year thereafter, CPC will, and will cause its
Subsidiaries to, remove from all packaging
materials, letterhead, envelopes, invoices
and other communications media of any kind,
all references to Corn Products, including
the Corn Products name, logo and any other
trademark or name of any member of the Corn
Products Group or any other Corn Products
intellectual property (except that CPC shall
not be required to take any such action with
respect to materials in the possession of
customers and CPC may, until the first
anniversary of the Distribution Date,
continue to use existing stock and supplies),
and neither CPC nor any of its Subsidiaries
shall use or display the Corn Products name,
logo or other trademarks or name of any
member of the Corn Products
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Group or any other Corn Products intellectual
property without the prior written consent of
Corn Products.
(c) Corn Products shall use its reasonable best
efforts to cause Arancia to (i) change its name to delete
reference to CPC; (ii) remove (or, if necessary, on an interim
basis, cover up) any and all exterior signs and other identifiers
located on any of Arancia's property or premises or on the
property or premises used by Arancia or its Subsidiaries (except
property or premises to be shared with CPC or its Subsidiaries
after the Distribution) which refer or pertain to CPC or which
include the CPC name, logo or any other trademark or the name of
any member of the CPC Group or any other CPC intellectual
property and (iii) remove from all letterhead, envelopes,
invoices and other communications media of any kind, all
references to CPC, including the CPC name, logo and any other
trademark or name of any member of the CPC Group or any other CPC
intellectual property.
(d) Each party acknowledges that it has no
interest in nor any right to use or display the name or any
trademark or intellectual property of the other party in any way,
except to the extent specifically provided herein or in any
Ancillary Agreement.
SECTION 1.13. Insurance.
(a) Effective as of the Effective Time, Corn
Products shall be responsible for having in place and maintaining
an insurance program for the Corn Products Group.
(b) To the extent any Insurance Proceeds are
actually received by CPC or any member of the CPC Group after the
Effective Time with respect to a loss of, or damage to, Corn
Products Assets prior to the Effective Time (including any
Insurance Proceeds with respect to continuing business
interruption experienced by the Corn Products Business after the
Effective Time), CPC shall, or shall cause the appropriate member
of the CPC Group to, remit such Insurance Proceeds (less any
Taxes on the excess of the Insurance Proceeds over the Tax
deduction, if any, in respect of the loss or damage resulting in
the receipt of such Insurance Proceeds and less any expenses
incurred by CPC or any member of the CPC Group to obtain such
Insurance Proceeds, to the extent not reimbursed by the
appropriate insurance carrier) to Corn Products or the member of
the Corn Products Group designated by Corn Products; provided,
however, that CPC shall not be required to remit any Insurance
Proceeds to any member of the Corn Products Group with respect to
business interruption to the Corn Products Business prior to the
Effective Time. To the extent CPC receives Insurance Proceeds
with respect to loss of, or damage to, both Corn Products Assets
and CPC Assets prior to the Effective Time and the allocation
thereof is not identified by the insurance carrier, CPC and Corn
Products shall share such Insurance Proceeds in proportion to the
relative value of the lost or damaged Assets (taking into account
the business interruption resulting from such loss or damage).
CPC shall, or shall cause an appropriate member of the CPC Group
to, take commercially reasonable steps to recover any Insurance
Proceeds payable with respect to loss of, or damage to, Corn
Products Assets.
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ARTICLE II. THE DISTRIBUTION
SECTION 2.1. Issuance of Shares to CPC. Corn Products
shall, in consideration for the contribution by CPC of the assets
of the Corn Refining Business to the Company pursuant hereto,
issue to CPC, for further distribution to the stockholders of
CPC, a number of shares of Corn Products Common Stock equal to
(A) the quotient of (x) the number of shares of CPC Common Stock
outstanding on the Distribution Record Date minus the sum of (i)
the number of restricted shares of CPC Common Stock outstanding
on the Distribution Record Date and (ii) the number of shares of
CPC Common Stock held by the Rabbi Trusts on the Distribution
Record Date divided by (y) four (4), minus (B) one hundred (100).
SECTION 2.2. Record Date and Distribution Date.
Subject to the satisfaction of the conditions set forth in this
Agreement, the Board of Directors of CPC, in its sole discretion
and consistent with this Agreement, shall establish the
Distribution Record Date and the Distribution Date and any
appropriate procedures in connection with the Distribution.
SECTION 2.3. The Agent. Prior to the Distribution
Date, CPC shall enter into an agreement with the Agent providing
for, among other things, the payment of the Distribution to the
holders of CPC Common Stock in accordance with this Article II.
SECTION 2.4. Delivery of Share Certificates to the
Agent. Prior to the Distribution Date, CPC shall inform the Agent
of the number of shares of Corn Products Common Stock to be
distributed in connection with the payment of the Distribution
and, at or prior to the Effective Time, CPC shall deliver to the
Agent a share certificate representing all of the then
outstanding shares of Corn Products Common Stock owned by CPC.
Corn Products shall provide the Agent with all share certificates
and any information that the Agent shall require in order to
effect the Distribution. All shares of Corn Products Common Stock
issued in the Distribution shall be duly authorized, validly
issued, fully paid and nonassessable.
SECTION 2.5. The Distribution.
(a) Subject to Sections 2.5(b) and 2.5(c) and to
the other terms and conditions of this Agreement, CPC shall
instruct the Agent to distribute, as of the Distribution Date,
one share of Corn Products Common Stock in respect of every four
shares of CPC Common Stock held by holders of record of CPC
Common Stock on the Distribution Record Date.
(b) No distribution of Corn Products Common Stock
shall be made with respect to shares of restricted CPC Common
Stock issued pursuant to the Stock Plans. As permitted by the
Stock Plans, in lieu of such distribution, the number of shares
of restricted CPC Common Stock held by each person who is an
employee of the CPC Group on the day following the Effective Date
shall be adjusted by multiplying the number of shares held by
such employee on the Distribution Record Date by a fraction, the
numerator of which is the average of the high and low prices of
CPC Common Stock on the NYSE for each of the ten trading days
immediately prior to the first day on which there is trading in
CPC Common Stock on a post-Distribution basis and the denominator
of which is the average of the high and low prices of CPC Common
Stock on the NYSE for each of the ten trading days beginning on
the first day on which there is trading in
11
CPC Common Stock on a post-Distribution basis; provided, however,
that no adjustment shall be made if the foregoing fraction yields
a result which is less than one (1). Shares of restricted CPC
Common Stock held by each person who is an employee of the Corn
Products Group on the day after the Effective Date shall be
converted into restricted shares of Corn Products Common Stock
pursuant to the Employee Benefits Agreement.
(c) No distribution of Corn Products Common Stock
shall be made with respect to shares of CPC Common Stock owned by
the Rabbi Trusts if the Rabbi Trusts shall have waived the right
to receive such distribution. In lieu of such distribution, and
in consideration for such waiver, CPC shall issue and deliver
additional shares of CPC Common Stock to the extent necessary
such that the number of shares of CPC Common Stock held by the
Rabbi Trusts after the Distribution shall be equal to the number
obtained by multiplying the number of shares held by the Rabbi
Trusts on the Distribution Record Date by a fraction, the
numerator of which is the average of the high and low prices of
CPC Common Stock on the NYSE for each of the ten trading days
immediately prior to the first day on which there is trading in
CPC Common Stock on a post-Distribution basis and the denominator
of which is the average of the high and low prices of CPC Common
Stock on the NYSE for each of the ten trading days beginning on
the first day on which there is trading in CPC Common Stock on a
post-Distribution basis; provided, however, that no adjustment
shall be made if the foregoing fraction yields a result which is
less than one (1).
SECTION 2.6. Fractional Shares.
(a) Notwithstanding anything in this Agreement to
the contrary, no fractional shares of Corn Products Common Stock
shall be issued in connection with the Distribution, and any such
fractional share interests to which a holder of CPC Common Stock
would otherwise be entitled will not entitle such stockholder to
vote or to any rights of a stockholder of Corn Products. In lieu
of any such fractional shares, each stockholder who, but for the
provisions of this Section, would be entitled to receive a
fractional share interest of Corn Products Common Stock shall be
paid cash, without any interest thereon, as hereinafter provided.
CPC shall instruct the Agent to determine the number of whole
shares and fractional interests of Corn Products Common Stock
allocable to each holder of CPC Common Stock (a) to determine the
number of whole shares and fractional shares of Corn Products
Common Stock allocable to each holder of record of CPC Common
Stock outstanding on the Distribution Record Date; (b) to
aggregate all such fractional shares into whole shares and sell
on a when issued basis the whole shares obtained thereby in the
open market as soon as practicable following the Distribution
Record Date and (c) as soon as practicable following the
Distribution Date, to distribute to each holder of CPC Common
Stock to which fractional shares of Corn Products Common Stock
have been allocated such holder's ratable share of the net
proceeds from such sale, after making appropriate deductions of
the amount required, if any, for federal income tax withholding
purposes and after deducting any applicable transfer taxes. All
brokers' fees and commissions incurred in connection with such
sales shall be paid by CPC.
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(b) Solely for purposes of computing fractional
share interests pursuant to this Section 2.6, the beneficial
owner of shares of CPC Common Stock held of record in the name of
a nominee will be treated as the holder of record of such shares.
ARTICLE III. INDEMNIFICATION AND RELEASE OF PRE-CLOSING CLAIMS
SECTION 3.1. Indemnification by CPC. Except as
otherwise specifically set forth in any provision of this
Agreement or of any Ancillary Agreement, CPC shall cause the
appropriate member of the CPC Group to indemnify, defend and hold
harmless the Corn Products Indemnitees from and against any and
all Indemnifiable Losses of the Corn Products Indemnitees arising
out of, by reason of or otherwise in connection with the CPC
Liabilities or alleged CPC Liabilities, including any breach by
CPC of any provision of this Agreement or any Ancillary Agreement
(less any Insurance Proceeds received by the Corn Products
Indemnitees in respect thereof).
SECTION 3.2. Indemnification by Corn Products. Except
as otherwise specifically set forth in any provision of this
Agreement or of any Ancillary Agreement, Corn Products shall
cause the appropriate member of the Corn Products Group to
indemnify, defend and hold harmless the CPC Indemnitees from and
against any and all Indemnifiable Losses of the CPC Indemnitees
arising out of, by reason of or otherwise in connection with the
Corn Products Liabilities or alleged Corn Products Liabilities,
including any breach by Corn Products of any provision of this
Agreement or any Ancillary Agreement (less any Insurance Proceeds
received by the CPC Indemnitees in respect thereof).
SECTION 3.3. Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is
made against a CPC Indemnitee or a Corn Products Indemnitee
(each, an "Indemnitee") by any person who is not a party to this
Agreement or any Subsidiary of such person (a "Third Party
Claim") as to which such Indemnitee may be entitled to
indemnification pursuant to this Agreement, such Indemnitee shall
notify the party which is or may be required pursuant to Section
3.1 or Section 3.2 hereof to make such indemnification (the
"Indemnifying Party") in writing, and in reasonable detail, of
the Third Party Claim promptly (and in any event within 15
business days) after receipt by such Indemnitee of written notice
of the Third Party Claim; provided, however, that failure to give
such notification shall not affect the indemnification provided
hereunder except to the extent the Indemnifying Party shall have
been actually prejudiced as a result of such failure (except that
the Indemnifying Party shall not be liable for any expenses
incurred during the period in which the Indemnitee failed to give
such notice). Thereafter, the Indemnitee shall deliver to the
Indemnifying Party, promptly (and in any event within five
business days) after the Indemnitee's receipt thereof, copies of
all notices and documents (including court papers) received by
the Indemnitee relating to the Third Party Claim.
If a Third Party Claim is made against an
Indemnitee, the Indemnifying Party shall be entitled to
participate in the defense thereof and, if it so chooses and
acknowledges
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in writing its obligation to indemnify the Indemnitee therefor,
to assume the defense thereof with counsel selected by the
Indemnifying Party and reasonably acceptable to the Indemnitee.
Should the Indemnifying Party so elect to assume the defense of a
Third Party Claim, the Indemnifying Party shall, within 30 days
(or sooner if the nature of the Third Party Claim so requires),
notify the Indemnitee of its intent to do so, and the
Indemnifying Party shall thereafter not be liable to the
Indemnitee for legal or other expenses subsequently incurred by
the Indemnitee in connection with the defense thereof; provided,
that the Indemnitee shall have the right to employ separate
counsel if, in the Indemnitee's reasonable judgment, a conflict
of interest between the Indemnitee and the Indemnifying Party
exists in respect of such claim which would make representation
of both parties by one counsel inappropriate, and in such event
the fees and expenses of such separate counsel shall be paid by
the Indemnifying Party. If the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in
the defense thereof and to employ counsel, subject to the proviso
of the preceding sentence, at its own expense, separate from the
counsel employed by the Indemnifying Party, it being understood
that the Indemnifying Party shall control such defense. The
Indemnifying Party shall be liable for the fees and expenses of
counsel employed by the Indemnitee for any period during which
the Indemnifying Party has failed to assume the defense thereof
(other than during the period prior to the time the Indemnitee
shall have given notice of the Third Party Claim as provided
above). If the Indemnifying Party so elects to assume the defense
of any Third Party Claim, all of the Indemnitees shall cooperate
with the Indemnifying Party in the defense or prosecution
thereof, including by providing or causing to be provided,
Records and witnesses as soon as reasonably practicable after
receiving any request therefor from or on behalf of the
Indemnifying Party.
If the Indemnifying Party acknowledges in writing
its obligation to indemnify the Indemnitee with respect to a
Third Party Claim, then in no event will the Indemnitee admit any
liability with respect to, or settle, compromise or discharge,
any such Third Party Claim without the Indemnifying Party's prior
written consent; provided, however, that the Indemnitee shall
have the right to settle, compromise or discharge such Third
Party Claim without the consent of the Indemnifying Party if the
Indemnitee releases the Indemnifying Party from its
indemnification obligation hereunder with respect to such Third
Party Claim and such settlement, compromise or discharge would
not otherwise adversely affect the Indemnifying Party. If the
Indemnifying Party acknowledges in writing its obligation to
indemnify the Indemnitee with respect to a Third Party Claim, the
Indemnitee will agree to any settlement, compromise or discharge
of a Third Party Claim that the Indemnifying Party may recommend
and that by its terms obligates the Indemnifying Party to pay the
full amount of the liability in connection with such Third Party
Claim and releases the Indemnitee completely in connection with
such Third Party Claim and that would not otherwise adversely
affect the Indemnitee; provided, however, that the Indemnitee may
refuse to agree to any such settlement, compromise or discharge
if the Indemnitee agrees that the Indemnifying Party's
indemnification obligation with respect to such Third Party Claim
shall not exceed the amount that would be required to be paid by
or on behalf of the Indemnifying Party in connection with such
settlement, compromise or discharge. If an Indemnifying Party
elects not to assume the defense of a Third Party Claim, or fails
to notify an Indemnitee of its election to do so as provided
herein, such Indemnitee may compromise, settle or defend such
Third Party Claim.
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Notwithstanding the foregoing, the Indemnifying
Party shall not be entitled to assume the defense of any Third
Party Claim (and shall be liable for the reasonable fees and
expenses of counsel incurred by the Indemnitee in defending such
Third Party Claim) if the Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than
money damages against the Indemnitee which the Indemnitee
reasonably determines, after conferring with its counsel, cannot
be separated from any related claim for money damages. If such
equitable relief or other relief portion of the Third Party Claim
can be so separated from that for money damages, the Indemnifying
Party shall be entitled to assume the defense of the portion
relating to money damages.
(b) In the event of payment by an Indemnifying
Party to any Indemnitee in connection with any Third Party Claim,
such Indemnifying Party shall be subrogated to and shall stand in
the place of such Indemnitee as to any events or circumstances in
respect of which such Indemnitee may have any right or claim
relating to such Third-Party Claim against any claimant or
plaintiff asserting such Third Party Claim. Such Indemnitee shall
cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense of such Indemnifying Party, in
prosecuting any subrogated right or claim.
(c) The remedies provided in this Article III
shall be cumulative and shall not preclude assertion by any
Indemnitee of any other rights or the seeking of any and all
other remedies against any Indemnifying Party.
SECTION 3.4. Indemnification Payments. Indemnification
required by this Article III shall be made by periodic payments
of the amount thereof during the course of the investigation or
defense, as and when bills are received or loss, liability,
claim, damage or expense is incurred.
ARTICLE IV. ACCESS TO INFORMATION
SECTION 4.1. Provision of Corporate Records.
(a) Other than in circumstances in which
indemnification is sought pursuant to Article III (in which event
the provisions of such Article will govern), after the
Distribution Date, upon the prior written request by Corn
Products for specific and identified agreements, documents,
books, records, data, files or other information (collectively,
"Records") which relate to (x) Corn Products or the conduct of
the Corn Products Business, as the case may be, prior to the
Effective Time, or (y) any Ancillary Agreement to which CPC and
Corn Products are parties, as applicable, CPC shall arrange, as
soon as reasonably practicable following the receipt of such
request, for the provision of appropriate copies of such Records
(or the originals thereof if Corn Products has a reasonable need
for such originals) in the possession or control of CPC or any of
its Subsidiaries, but only to the extent such items are not
already in the possession or control of Corn Products.
(b) Other than in circumstances in which
indemnification is sought pursuant to Article III (in which event
the provisions of such Article will govern), after the
Distribution Date, upon the prior written request by CPC for
specific and identified Records
15
which relate to (x) CPC or the conduct of the CPC Business, as
the case may be, prior to the Effective Time, or (y) any
Ancillary Agreement to which Corn Products and CPC are parties,
as applicable, Corn Products shall arrange, as soon as reasonably
practicable following the receipt of such request, for the
provision of appropriate copies of such Records (or the originals
thereof if CPC has a reasonable need for such originals) in the
possession or control of Corn Products or any of its
Subsidiaries, but only to the extent such items are not already
in the possession or control of CPC.
SECTION 4.2. Access to Information by CPC and Corn
Products. Other than in circumstances in which indemnification is
sought pursuant to Article III (in which event the provisions of
such Article will govern), from and after the Distribution Date,
each of CPC and Corn Products shall afford to the other and its
authorized accountants, counsel and other designated
representatives reasonable access during normal business hours,
subject to appropriate restrictions for classified, privileged or
confidential information, to the personnel, properties, books and
records of such party and its Subsidiaries insofar as such access
is reasonably required by the other party and relates to (x) such
other party or the conduct of its business prior to the Effective
Date or (y) any Ancillary Agreement to which each of the party
requesting such access and the party requested to grant such
access are parties.
SECTION 4.3. Reimbursement; Other Matters. Except to
the extent otherwise contemplated by any Ancillary Agreement, a
party providing Records or access to information to the other
party under this Article IV shall be entitled to receive from the
recipient, upon the presentation of invoices therefor, payments
for such amounts, relating to supplies, disbursements and other
out-of-pocket expenses, as may be reasonably incurred in
providing such Records or access to information.
SECTION 4.4. Confidentiality. Except as required in
connection with the Information Statement and Corn Products'
Registration Statement on Form 10, each of (i) CPC and its
Subsidiaries and (ii) Corn Products and its Subsidiaries, shall
not, for seven years following the Distribution Date, use or
permit the use of (without the prior written consent of the
other) and shall keep, and shall cause its consultants and
advisors to keep, confidential all information concerning the
other parties in its possession, its custody or under its control
(except to the extent that (A) such information has been in the
public domain through no fault of such party or (B) such
information has been later lawfully acquired from other sources
by such party or (C) this Agreement or any other Ancillary
Agreement or any other agreement entered into pursuant hereto
permits the use or disclosure of such information) to the extent
such information (w) relates to or was acquired during the period
prior to the Effective Time, (x) relates to any Ancillary
Agreement, (y) is obtained in the course of performing services
for the other party pursuant to any Ancillary Agreement, or (z)
is based upon or is derived from information described in the
preceding clauses (w), (x) or (y) and each party shall not
(without the prior written consent of the other) otherwise
release or disclose such information to any other person, except
such party's auditors and attorneys. In the event any member of
the CPC Group or any member of the Corn Products Group is
requested or required (by oral questions, interrogatories,
requests for information or documents, subpoena, or judicial,
administrative or similar process) to disclose any confidential
information, CPC or Corn Products, as the case may be, will, or
will
16
cause such member to, provide Corn Products or CPC, as
applicable, with prompt notice of such request(s) so that it may
seek an appropriate protective order or other appropriate remedy
and/or waive compliance with the provisions of this Section 4.4.
In the event that such protective order or other remedy is not
obtained, or a waiver is granted hereunder, the party required to
provide confidential information shall disclose that information
(and only that information) which, in the written opinion of
counsel, it is legally compelled to disclose and will exercise
its reasonable best efforts to obtain reliable assurance that
confidential treatment will be accorded the information so
furnished.
SECTION 4.5. Privileged Matters. The parties hereto
recognize that legal and other professional services that have
been and will be provided prior to the Distribution Date have
been and will be rendered for the benefit of each of the members
of the CPC Group and of the Corn Products Group, and that each of
the members of the CPC Group and of the Corn Products Group
should be deemed to be the client for the purposes of asserting
all privileges which may be asserted under applicable law. To
allocate the interests of each party in the information as to
which any party is entitled to assert a privilege, the parties
agree as follows:
(a) CPC shall be entitled, in perpetuity, to
control the assertion or waiver of all privileges in connection
with privileged information which relates solely to the CPC
Business, whether or not the privileged information is in the
possession of or under the control of CPC or Corn Products. CPC
shall also be entitled, in perpetuity, to control the assertion
or waiver of all privileges in connection with privileged
information that relates solely to the subject matter of any
claims constituting CPC Liabilities, now pending or which may be
asserted in the future, in any lawsuits or other proceedings
initiated against or by CPC, whether or not the privileged
information is in the possession of or under the control of CPC
or Corn Products.
(b) Corn Products shall be entitled, in
perpetuity, to control the assertion or waiver of all privileges
in connection with privileged information which relates solely to
the Corn Products Business, whether or not the privileged
information is in the possession of or under the control of Corn
Products or CPC. Corn Products shall also be entitled, in
perpetuity, to control the assertion or waiver of all privileges
in connection with privileged information which relates solely to
the subject matter of any claims constituting Corn Products
Liabilities, now pending or which may be asserted in the future,
in any lawsuits or other proceedings initiated against or by Corn
Products, whether or not the privileged information is in the
possession of or under the control of Corn Products or CPC.
(c) The parties hereto agree that they shall have
a shared privilege, with equal right to assert, subject to the
restrictions in this Section 4.5, with respect to all privileges
not allocated pursuant to the terms of Sections 4.5(a) and (b);
provided, that the written consent of both parties is required to
waive any privilege deemed to be a shared privilege hereunder.
All privileges relating to any claims, proceedings, litigation,
disputes, or other matters which involve both CPC and Corn
Products in respect of which both parties retain any
responsibility or liability under this Agreement, shall be
subject to a shared privilege among them.
17
(d) No party hereto may waive any privilege which
could be asserted under any applicable law, and in which any
other party hereto has a shared privilege, without the consent of
the other party, except to the extent reasonably required in
connection with any litigation with third parties or as provided
in subsection (e) below. Consent shall be in writing, or shall be
deemed to be granted unless written objection is made within
twenty (20) days after notice from the party requesting such
consent.
(e) In the event of any litigation or dispute
exclusively between or among the parties hereto, any party and a
Subsidiary of the other party hereto, or a Subsidiary of one
party hereto and a Subsidiary of the other party hereto, either
such party may waive a privilege in which the other party has a
shared privilege, without obtaining the consent of the other
party, provided that such waiver of a shared privilege shall be
effective only as to the use of information with respect to the
litigation or dispute between the relevant parties and/or their
Subsidiaries, and shall not operate as a waiver of the shared
privilege with respect to third parties.
(f) If a dispute arises between or among the
parties hereto or their respective Subsidiaries regarding whether
a privilege should be waived to protect or advance the interest
of any party, each party agrees that it shall negotiate in good
faith, shall endeavor to minimize any prejudice to the rights of
the other parties, and shall not unreasonably withhold consent to
any request for waiver by another party. Each party hereto
specifically agrees that it will not withhold consent to waiver
for any purpose except to protect its own legitimate interests.
(g) Upon receipt by any party hereto or by any
Subsidiary thereof of any subpoena, discovery or other request
which arguably calls for the production or disclosure of
information subject to a shared privilege or as to which another
party has the sole right hereunder to assert a privilege, or if
any party obtains knowledge that any of its or any of its
Subsidiaries' current or former directors, officers, agents or
employees has received any subpoena, discovery or other requests
which arguably calls for the production or disclosure of such
privileged information, such party shall promptly notify the
other party or parties of the existence of the request and shall
provide the other party or parties a reasonable opportunity to
review the information and to assert any rights it or they may
have under this Section 4.5 or otherwise to prevent the
production or disclosure of such privileged information.
(h) The transfer of all Records and other
information pursuant to this Agreement is made in reliance on the
agreement of CPC and Corn Products, as set forth in Sections 4.4
and 4.5, to maintain the confidentiality of confidential or
privileged information and to assert and maintain all applicable
privileges. The access to information being granted pursuant to
Sections 4.1 and 4.2 hereof, the agreement to provide witnesses
and individuals pursuant to Sections 1.8 and 3.3 hereof, the
furnishing of notices and documents and other cooperative efforts
contemplated by Section 3.3 hereof, and the transfer of
privileged information between and among the parties and their
respective Subsidiaries pursuant to this Agreement shall not be
deemed a waiver of any privilege that has been or may be asserted
under this Agreement or otherwise.
18
SECTION 4.6. Ownership of Information. Any information
owned by one party or any of its Subsidiaries that is provided to
a requesting party pursuant to Article III or this Article IV
shall be deemed to remain the property of the providing party.
Unless specifically set forth herein, nothing contained in this
Agreement shall be construed as granting or conferring rights of
license or otherwise in any such information.
SECTION 4.7. Limitation of Liability.
(a) Except as specifically provided elsewhere in
this Agreement or in an Ancillary Agreement, no party shall have
any liability to any other party in the event that any
information exchanged or provided pursuant to this Agreement
which is an estimate or forecast, or which is based on an
estimate or forecast, is found to be inaccurate.
(b) No party or any Subsidiary thereof shall have
any liability or claim against any other party or any Subsidiary
of any other party based upon, arising out of or resulting from
any agreement, arrangement, course of dealing or understanding
existing on or prior to the Distribution Date (other than this
Agreement or any Ancillary Agreement) and any such liability or
claim, whether or not in writing, is hereby irrevocably canceled,
released and waived.
SECTION 4.8. Other Agreements Providing for Exchange
of Information. The rights and obligations granted under this
Article IV are subject to any specific limitations,
qualifications or additional provisions on the sharing, exchange
or confidential treatment of information set forth in any
Ancillary Agreement.
SECTION 4.9. Retention of Records.
(a) CPC shall deliver to Corn Products all
Records known, after reasonable inquiry, to be in its control or
possession relating to the assets, liabilities or operations of
the Corn Products Group, the Minority-Investment Companies and
the Corn Products Licensees. Except as otherwise provided in any
Ancillary Agreement or when a longer retention period is
otherwise required by law, each party hereto agrees to retain for
a period consistent with the records retention policy heretofore
applicable as described in Schedule 4.9 hereto, all Records in
its control or possession relating to the assets, liabilities or
operations of the other party hereto or its Subsidiaries;
provided, however, that in the case of any Records relating to
Taxes or to environmental liabilities, such retention period
shall be extended to the expiration of the applicable statute of
limitations (giving effect to any extensions thereof (and the
parties shall notify each other of any such extensions)). After
the expiration of the period during which retention is required,
each party may destroy any such Records.
(b) Notwithstanding the foregoing, in lieu of
retaining any specific Records, CPC or Corn Products may offer in
writing to deliver such Records to the other and, if such offer
is not accepted within 90 days, the offered Records may be
destroyed or otherwise disposed of at any time. If a recipient of
such offer shall request in writing prior to the scheduled date
for such destruction or disposal that any of the Records proposed
to be destroyed or disposed of be delivered to the requesting
party, the party proposing the destruction or disposal
19
shall promptly arrange for the delivery of such of the Records as
was requested (at the cost of the requesting party).
ARTICLE V. ADMINISTRATIVE SERVICES
SECTION 5.1. Performance of Services. Beginning on the
Distribution Date, each party will provide, or cause one or more
of its Subsidiaries to provide, to the other party and its
Subsidiaries such services on such terms as may be set forth in
the Transition Services Agreement. Except as otherwise set forth
in the Transition Services Agreement or any Schedule thereto, the
party that is to provide the services (the "Provider") will use
(and will cause its Subsidiaries to use) commercially reasonable
efforts to provide such services to the other party (the
"Recipient") and its Subsidiaries in a satisfactory and timely
manner and as further specified in such Transition Services
Agreement.
SECTION 5.2. Independence. Unless otherwise agreed in
writing, none of the individuals providing the scheduled services
to the Recipient will be deemed to be employees of the Recipient
for any purpose.
SECTION 5.3. Non-Exclusivity. Nothing in this
Agreement precludes any party from obtaining, in whole or in
part, services of any nature that may be obtainable from the
other party from its own employees or from providers other than
the other party.
ARTICLE VI. DISPUTE RESOLUTION
SECTION 6.1. Negotiation.
(a) The parties shall attempt in good faith to
resolve any Agreement Dispute by negotiation between Xxxxxx X.
Xxxxx (or his successor) on behalf of Corn Products and an
executive vice-president or senior vice-president on behalf of
CPC; provided such negotiations shall not, unless otherwise
agreed by the parties in writing, exceed 45 days from the date on
which the relevant party gave notice of such Agreement Dispute;
provided further that in the event of any mediation or
arbitration in accordance with Section 6.2 hereof, the relevant
parties shall not assert the defenses of statute of limitations
and laches arising for the period beginning after the date the
relevant party gave notice of such Agreement Dispute, and any
contractual time period or deadline under this Agreement or any
Ancillary Agreement to which such Agreement Dispute relates shall
not be deemed to have passed until such Agreement Dispute has
been resolved.
20
SECTION 6.2. Mediation and Arbitration.
(a) If an Agreement Dispute involves an amount in
controversy up to $1 million and has not been resolved within 45
days of the date on which notice thereof was first given (or such
longer period as agreed pursuant to Section 6.1), the parties
shall select a neutral third party to resolve such Agreement
Dispute, whose decision shall be binding; provided, that if the
parties cannot agree on a neutral third party, the parties agree
to submit the Agreement Dispute to a neutral third party
designated by the president of the CPR Institute for Dispute
Resolution from the CPR Panels of Neutrals, whose decision shall
be binding. Either party may declare, in good faith, that the
amount in controversy is in excess of $1 million and such
declaration shall govern regardless of whether the amount is
ultimately so determined.
(b) If an Agreement Dispute involves an amount in
controversy in excess of $1 million and has not been resolved
within 45 days of the date on which notice thereof was first
given (or such longer period as agreed pursuant to Section 6.1),
the parties shall endeavor to settle the Agreement Dispute by
mediation under the then current CPR Model Mediation Procedure
for Business Disputes. Unless otherwise agreed, the parties will
select a mediator from the CPR Panels of Neutrals and shall
notify CPR to initiate the selection process. Any Agreement
Dispute involving an amount in controversy in excess of $1
million which has not been resolved by mediation as provided
herein within 45 days of the initiation of such mediation, shall
be settled by arbitration in accordance with the then current CPR
Non-Administered Arbitration Rules (the "Rules") by three
independent and impartial arbitrators, of whom each party shall
appoint one. The arbitration shall be governed by the United
States Arbitration Act, Title 9 U.S.C., and judgment upon the
award rendered by the arbitrators may be entered by any court
having jurisdiction thereof. In the event the arbitration is
initiated by CPC, the place of arbitration shall be Xxxx County,
Illinois. In the event the arbitration is initiated by Corn
Products, the place of arbitration shall be in Bergen County in
the State of New Jersey.
In resolving any dispute, the parties intend that the
arbitrators apply the substantive laws of the State of New York,
without regard to the choice of law principles thereof. The
parties intend that the provisions to arbitrate set forth herein
be valid, enforceable and irrevocable. The undersigned agree to
comply with any award made in any such arbitration proceedings
that has become final in accordance with the Rules and agree to
enforcement of or entry of judgment upon such award, in
accordance with Section 7.17 hereof, by (i) the United States
District Court for the District of New Jersey (Newark) or if
entry of judgment may not be made in such court for
jurisdictional reasons, in the Superior Court of the State of New
Jersey, Bergen County, in the event the arbitration was initiated
by Corn Products or (ii) the United States District Court for the
Northern District of Illinois or if entry of judgment may not be
made in such court for jurisdictional reasons, in the Illinois
Circuit Court, Xxxx County Judicial Circuit (Chicago), in the
event the arbitration was initiated by CPC. The arbitrators shall
be entitled, if appropriate, to award any remedy in such
proceedings, including, without limitation, monetary damages,
specific performance and all other forms of legal and equitable
relief; provided, however, the arbitrators shall not be entitled
to award non-compensatory damages, including punitive or
exemplary damages and the parties hereto irrevocably waive
entitlement to any such damages. Without limiting the provisions
of the Rules, unless otherwise agreed in writing by or
21
among the relevant parties or permitted by this Agreement, the
undersigned shall keep confidential all matters relating to the
arbitration or the award, provided such matters may be disclosed
(i) to the extent reasonably necessary in any proceeding brought
to enforce the award or for entry of a judgment upon the award
and (ii) to the extent otherwise required by law. Notwithstanding
Section 15.3 of the Rules, the party other than the prevailing
party (as determined by the arbitrators) in the arbitration shall
be responsible for all of the costs of the arbitration, including
legal fees and other costs specified by Rule 15. Nothing
contained herein is intended to or shall be construed to prevent
any party, in accordance with Rule 12 or otherwise, from applying
to any court of competent jurisdiction solely for a temporary
restraining order or preliminary injunction ("Injunctive Relief")
in connection with the subject matter of any Agreement Disputes;
provided, however, that no party may couple any request, to a
court or otherwise, for Injunctive Relief with a request for
non-injunctive, permanent or non-provisional relief.
SECTION 6.3. Continuity of Service and Performance.
Unless otherwise agreed in writing, the parties will continue to
provide service and honor all other commitments under this
Agreement and each Ancillary Agreement during the course of
dispute resolution pursuant to the provisions of this Article VI
with respect to all matters not subject to such dispute,
controversy or claim.
ARTICLE VII. MISCELLANEOUS
SECTION 7.1. Complete Agreement; Construction. This
Agreement, including the Exhibits and Schedules, the agreements
and arrangements listed on Schedule 1.1(g) and the Ancillary
Agreements constitute the entire agreement between the parties
with respect to the subject matter hereof and supersede all
previous negotiations, commitments and writings with respect to
such subject matter. In the event of any inconsistency between
this Agreement and any Schedule hereto, the Schedule shall
prevail. Other than Section 1.6, Section 4.5 and Article VI,
which shall prevail over any inconsistent or conflicting
provisions in any Ancillary Agreement notwithstanding any other
provisions in this Agreement to the contrary, in the event and to
the extent that there shall be a conflict between the provisions
of this Agreement and the provisions of any Ancillary Agreement,
such Ancillary Agreement shall control.
SECTION 7.2. Ancillary Agreements. Subject to the last
sentence of Section 7.1, this Agreement is not intended to
address, and should not be interpreted to address, the matters
specifically and expressly covered by the Ancillary Agreements.
SECTION 7.3. Counterparts. This Agreement may be
executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each of
the parties and delivered to the other party.
SECTION 7.4. Survival of Agreements. Except as
otherwise contemplated by this Agreement, all covenants and
agreements of the parties contained in this Agreement shall
survive the Distribution Date.
22
SECTION 7.5. Expenses. Except as otherwise set forth
in this Agreement or any Ancillary Agreement, all costs and
expenses incurred on or prior to the Distribution Date (whether
or not paid on or prior to the Distribution Date) in connection
with the preparation, execution, delivery and implementation of
this Agreement and any Ancillary Agreement, the Information
Statement (including any Registration Statement on Form 10 of
which such Information Statement may be a part) and the
Distribution and the consummation of the transactions
contemplated thereby shall be charged to and paid by CPC. Except
as otherwise set forth in this Agreement or any Ancillary
Agreement, each party shall bear its own costs and expenses
incurred after the Distribution Date. Any amount or expense to be
paid or reimbursed by any party hereto to any other party hereto
shall be so paid or reimbursed promptly after the existence and
amount of such obligation is determined and demand therefor is
made.
SECTION 7.6. Notices. All notices and other
communications hereunder shall be in writing and hand delivered
or mailed by registered or certified mail (return receipt
requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to
the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice) and
will be deemed given on the date on which such notice is
received:
If to CPC:
CPC International Inc.
Xxxxxxxxxxxxx Xxxxx, X.X. Xxx 0000
Xxxxxxxxx Xxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, General Counsel
If to Corn Products:
Corn Products International, Inc.
X.X. Xxx 000
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, General Counsel
SECTION 7.7. Waivers. The failure of any party to
require strict performance by any other party of any provision in
this Agreement will not waive or diminish that party's right to
demand strict performance thereafter of that or any other
provision hereof.
23
SECTION 7.8. Amendments. Subject to the terms of
Section 7.11 hereof, this Agreement may not be modified or
amended except by an agreement in writing signed by each of the
parties hereto.
SECTION 7.9. Assignment.
(a) This Agreement shall not be assignable, in
whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other parties hereto,
and any attempt to assign any rights or obligations arising under
this Agreement without such consent shall be void.
(b) Corn Products will not distribute to its
stockholders any interest in any Corn Products Business Entity,
by way of a spin-off distribution, split-off or other exchange of
interests in a Corn Products Business Entity for any interest in
Corn Products held by Corn Products stockholders, or any similar
transaction or transactions, unless the distributed Corn Products
Business Entity undertakes to CPC to be jointly and severally
liable for all Corn Products Liabilities hereunder.
SECTION 7.10. Successors and Assigns. The provisions
to this Agreement shall be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors
and permitted assigns.
SECTION 7.11. Termination. This Agreement (including,
without limitation, Article III hereof) may be terminated and the
Distribution may be amended, modified or abandoned at any time
prior to the Effective Time by and in the sole discretion of CPC
without the approval of Corn Products or the stockholders of CPC.
In the event of such termination, no party shall have any
liability of any kind to any other party or any other person.
After the Distribution, this Agreement may not be terminated
except by an agreement in writing signed by the parties;
provided, however, that Article III shall not be terminated or
amended after the Distribution in respect of the third party
beneficiaries thereto without the consent of such persons.
SECTION 7.12. Subsidiaries. Each of the parties hereto
shall cause to be performed, and hereby guarantees the
performance of, all actions, agreements and obligations set forth
herein to be performed by any Subsidiary of such party or by any
entity that is contemplated to be a Subsidiary of such party on
and after the Distribution Date.
SECTION 7.13. Third Party Beneficiaries. Except as
provided in Article III relating to Indemnitees, this Agreement
is solely for the benefit of the parties hereto and their
respective Subsidiaries and Affiliates and should not be deemed
to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
SECTION 7.14. Title and Headings. Titles and headings
to sections herein are inserted for the convenience of reference
only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement.
24
SECTION 7.15. Exhibits and Schedules. The Exhibits and
Schedules shall be construed with and as an integral part of this
Agreement to the same extent as if the same had been set forth
verbatim herein.
SECTION 7.16. GOVERNING LAW. THIS AGREEMENT 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 IN THE STATE OF NEW YORK.
SECTION 7.17. Consent to Jurisdiction. Without
limiting the provisions of Article VI hereof, each of the parties
irrevocably submits to the exclusive jurisdiction of (a) the
United States District Court for the District of New Jersey
(Newark) or the Superior Court of the State of New Jersey, Bergen
County, for the purposes of any suit, action or other proceeding
brought by Corn Products and arising out of this Agreement or any
transaction contemplated hereby or (b) the United States District
Court for the Northern District of Illinois or the Illinois
Circuit Court, Xxxx County Judicial Circuit (Chicago) for the
purposes of any suit, action or other proceeding brought by CPC
and arising out of this Agreement or any transaction contemplated
hereby. Corn Products agrees to commence any action, suit or
proceeding relating hereto that is not required to be submitted
to arbitration pursuant to Article VI hereof either in the United
States District Court for the District of New Jersey (Newark) or
if such suit, action or other proceeding may not be brought in
such court for jurisdictional reasons, in the Superior Court of
the State of New Jersey, Bergen County. CPC agrees to commence
any action, suit or proceeding relating hereto that is not
required to be submitted to arbitration pursuant to Article VI
hereof either in the United States District Court for the
Northern District of Illinois or if such suit, action or other
proceeding may not be brought in such court for jurisdictional
reasons, in the Illinois Circuit Court, Xxxx County Judicial
Circuit (Chicago). Each of the parties further agrees that
service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth
above shall be effective service of process for any such action,
suit or proceeding in New Jersey or Illinois with respect to any
matters to which it has submitted to jurisdiction in this Section
7.17. Each of the parties irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Superior Court of the State of New
Jersey, Bergen County, (ii) the United States District Court for
the District of New Jersey (Newark), (iii) the Illinois Circuit
Court, Xxxx County Judicial Circuit (Chicago) or (iv) the United
States District Court for the Northern District of Illinois 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.
SECTION 7.18. Severability. In the event any one or
more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable
provisions.
25
SECTION 7.19. Specific Performance. In the event of
any actual or threatened default in, or breach of, any of the
terms, conditions and provisions of this Agreement or any
Ancillary Agreement, the party or parties who are or are to be
thereby aggrieved shall have the right to specific performance
and injunctive or other equitable relief of its rights under this
Agreement or such Ancillary Agreement, in addition to any and all
other rights and remedies at law or in equity, and all such
rights and remedies shall be cumulative. The parties agree that
the remedies at law for any breach or threatened breach,
including monetary damages, are inadequate compensation for any
loss and that any defense in any action for specific performance
that a remedy at law would be adequate is waived. Any
requirements for the securing or posting of any bond with such
remedy are waived.
SECTION 7.20. Definitions. As used in this Agreement,
the following terms shall have the following meanings:
"Action" shall mean any action, suit,
arbitration, inquiry, proceeding or investigation by or before
any court, any Governmental Authority or any arbitration
tribunal.
"Affiliate" shall mean, when used with respect to
a specified Person, another Person that controls, is controlled
by, or is under common control with the Person specified. As used
herein, "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of
voting securities or other interests, by contract or otherwise.
"Agent" shall mean the distribution agent, which
may be CPC's stock transfer agent, to be appointed by CPC to
distribute the shares of Corn Products Common Stock in the
Distribution.
"Agreement Dispute" shall mean any controversy,
dispute or claim arising out of, in connection with, or in
relation to the interpretation, performance, nonperformance,
validity or breach of this Agreement or any Ancillary Agreement
or otherwise arising out of, or in any way related to this
Agreement, any Ancillary Agreement or the transactions
contemplated hereby or thereby, including, without limitation,
any claim based on contract, tort or statute (but excluding any
controversy, dispute or claim if any third party is a party to
such controversy, dispute or claim).
"Ancillary Agreements" shall mean all of the
written agreements, instruments, assignments or other
arrangements (other than this Agreement) entered into in
connection with the transactions contemplated hereby, including,
without limitation, the Argo Access Agreement, the Conveyancing
and Assumption Instruments, the Debt Agreement, the Employee
Benefits Agreement, the Lease Assumption, the Master Supply
Agreement, the Master License Agreement, the Tax Indemnification
Agreement, the Tax Sharing Agreement, the Transition Services
Agreement and any other agreements executed by both CPC and Corn
Products which provide that they shall be considered "Ancillary
Agreements" pursuant to the provisions of this Agreement.
"Arancia" means Arancia-CPC S.A. de C.V.
26
"Argo Access Agreement" shall mean the Argo
Access Agreement between CPC and Corn Products relating to the
Distribution.
"Assets" shall mean assets, properties and rights
(including goodwill), wherever located (including in the
possession of vendors or other third parties or elsewhere),
whether real, personal, mixed, immovable, tangible, intangible or
contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or
financial statements of any person, including, without
limitation, the following:
(i) all accounting and other books, records and
files whether in paper, microfilm,
microfiche, computer tape or disc, magnetic
tape or any other form;
(ii) all apparatus, computers and other electronic
data processing equipment, fixtures,
machinery, equipment, furniture, office
equipment, automobiles, trucks, aircraft and
other transportation equipment, special and
general tools, test devices, prototypes and
models and other tangible personal property;
(iii) all inventories of materials, parts, raw or
packaging materials, supplies,
work-in-process and finished goods and
products;
(iv) all interests in real property of whatever
nature, including easements, whether as
owner, mortgagee or holder of a Security
Interest in real property, lessor, sublessor,
lessee, sublessee or otherwise;
(v) all interests in any capital stock or other
equity interests of any Subsidiary or any
other Person, all bonds, notes, debentures or
other securities issued by any Subsidiary or
any other Person, all loans, advances or
other extensions of credit or capital
contributions to any Subsidiary or any other
Person and all other investments in
securities of any Person;
(vi) all license agreements, leases of personal
property, open purchase orders for raw or
packaging materials, supplies, parts or
services, unfilled orders for the manufacture
and sale of products and other contracts,
agreements or commitments;
(vii) all deposits, letters of credit and performance
and surety bonds;
(viii) all written technical information, data,
specifications, research and development
information, engineering drawings, operating
and maintenance manuals, and materials and
analyses prepared by consultants and other
third parties;
27
(ix) all domestic and foreign patents, copyrights,
trade names, trademarks, service marks and
registrations and applications for any of the
foregoing, knowhow, formulae, recipes,
formulations, trade secrets, inventions, data
bases, other proprietary information and
licenses from third persons granting the
right to use any of the foregoing;
(x) all computer applications, programs and other
software;
(xi) all cost information, sales and pricing data,
customer prospect lists, supplier records,
customer and supplier lists, customer and
vendor data, correspondence and lists,
product literature, artwork, design,
development and manufacturing files, vendor
and customer drawings, formulations and
specifications, quality records and reports
and other books, records, studies, surveys,
reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other
accounts and notes receivables;
(xiii) all rights under contracts or agreements, all
claims or rights against any Person arising
from the ownership of any asset, all rights
in connection with any bids or offers and all
claims, choses in action or similar rights,
whether accrued or contingent;
(xiv) all rights under insurance policies and all rights
in the nature of insurance, indemnification
or contribution;
(xv) all licenses, permits, approvals, emission
reduction credits and authorizations which
have been issued by any Governmental
Authority;
(xvi) cash or cash equivalents, bank accounts, lock boxes
and other deposit arrangements; and
(xvii) interest rate, currency, commodity or other
swap, collar, cap or other hedging or similar
agreements or arrangements.
"Assignee" shall have the meaning set forth in Section 1.1(e).
"Branded Foods Business" shall have the meaning
set forth in the recitals hereto.
"Business Entity" shall mean any corporation,
partnership, limited liability company, company or other entity,
foreign or domestic, which may legally hold title to Assets.
28
"Code" shall mean the Internal Revenue Code of
1986, as amended, and the Treasury regulations promulgated
thereunder, including any successor legislation.
"Conveyancing and Assumption Instruments" shall
mean, collectively, the various agreements, instruments and other
documents heretofore entered into and to be entered into to
effect the transfer of Assets and the assumption of Liabilities
in the manner contemplated by this Agreement, or otherwise
arising out of or relating to the transactions contemplated by
this Agreement in such form or forms as the parties agree and as
may be required by the laws of the appropriate jurisdictions.
"Corn Products" shall mean Corn Products
International, Inc., a Delaware corporation.
"Corn Products Assets" shall mean:
(i) any and all Assets that have been or are expressly
contemplated to be transferred to Corn
Products or any other member of the Corn
Products Group in connection with the
Distribution pursuant to the terms of this
Agreement, any Ancillary Agreement or the
list of pre-Distribution reorganization
steps set forth in Schedule 1.1(g) hereto
(including any Assets set forth on Schedule
7.20(A) or on any other Schedule hereto or to
an Ancillary Agreement); or
(ii) the ownership interests in (x) those Business
Entities listed on Schedule 7.20(B) (which
shall describe the direct and indirect
ownership interests held by CPC in each such
Business Entity) and (y) the
Minority-Investment Companies;
(iii) any Corn Products Contracts or Corn Products
Permits, any rights or claims arising
thereunder, and any other rights or claims or
contingent rights or claims primarily
relating to or arising from any Corn Products
Asset or the Corn Products Business;
(iv) any Assets reflected on the Corn Products Balance
Sheet or the accounting records supporting
such balance sheet and any Assets acquired by
or for any member of the Corn Products Group
subsequent to the date of such balance sheet
which, had they been so acquired on or before
such date and owned as of such date, would
have been reflected on such balance sheet if
prepared on a consistent basis, subject to
any dispositions of any of such Assets
subsequent to the date of such balance sheet;
(v) any rights to licensing fees arising under or
related to any Corn Products Permits;
29
(vi) the Corn Products patents and trademarks set
forth on Schedule 7.20(C); and
(vii) any and all Assets owned or held immediately prior
to the Distribution Date by CPC or any of its
Subsidiaries primarily relating to the Corn
Products Business. The intention of this
clause (vii) is only to rectify any
inadvertent omission of transfer or
conveyance of any Asset that, had the parties
given specific consideration to such Asset as
of the date hereof, would have otherwise been
classified as a Corn Products Asset. No Asset
shall be deemed to be a Corn Products Asset
solely as a result of this clause (vii) if
such Asset is within the category or type of
Asset expressly covered by an Ancillary
Agreement. In addition, no Asset shall be
deemed a Corn Products Asset solely as a
result of this clause (vii) unless a claim
with respect thereto is made by Corn Products
on or prior to the third anniversary of the
Distribution Date.
Notwithstanding the foregoing, the Corn
Products Assets shall not in any event
include:
(x) the Assets listed or described on Schedule
1.1(a)(2); or
(y) any Assets primarily relating to or
used in any terminated or divested
Business Entity, business or operation
formerly owned or managed by or
associated with Corn Products or any
Corn Products Business, except for
those Assets primarily relating to or
used exclusively in those Business
Entities, businesses or operations
listed on Schedule 7.20(B); or
(z) any and all Assets that are expressly
contemplated by this Agreement or any
Ancillary Agreement (or the Schedules
hereto or thereto) as Assets to be
retained by any member of the CPC
Group.
In the event of any inconsistency or conflict
which may arise in the application or
interpretation of any of the foregoing
provisions, for the purpose of determining
what is and is not a Corn Products Asset, any
item explicitly included on a Schedule
referred to in this definition of "Corn
Products Assets" shall take priority over any
provision of the text hereof.
"Corn Products Balance Sheet" shall mean the
combined balance sheet of the Corn Products Group, including the
notes thereto, as of September 30, 1997 included in the
Information Statement.
30
"Corn Products Business" shall mean (i) the Corn
Refining Business, (ii) the businesses of the members of the Corn
Products Group and the portion of the business of the Corn
Products Licensees and the Minority-Investment Companies
primarily related to the Corn Refining Business, (iii) any other
business conducted primarily through the use of the Corn Products
Assets, and (iv) the businesses of Business Entities acquired or
established by or for Corn Products or any of its Subsidiaries
after the date of this Agreement.
"Corn Products Common Stock" shall have the
meaning set forth in the recitals hereto.
"Corn Products Contracts" shall mean the
following contracts and agreements to which CPC or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries
or any of their respective Assets is bound, whether or not in
writing, except for any such contract or agreement that is
expressly contemplated not to be transferred or assigned by any
member of the CPC Group pursuant to any provision of this
Agreement or any Ancillary Agreement:
(i) any contracts or agreements with a value in
excess of $1 million or with a term of
greater than one year listed or described on
Schedule 7.20(D);
(ii) any contract or agreement entered into in the
name of, or expressly on behalf of, any
division, business unit or member of the Corn
Products Group;
(iii) any contract or agreement that relates primarily
to the Corn Products Business;
(iv) federal, state and local government and other
contracts and agreements that relate
primarily to the Corn Products Business;
(v) any contract or agreement representing
capital or operating equipment lease
obligations reflected on the Corn Products
Balance Sheet;
(vi) any contract or agreement that is otherwise
expressly contemplated pursuant to this
Agreement or any of the Ancillary Agreements
to be assigned to Corn Products or any member
of the Corn Products Group; and
(vii) any guarantee, indemnity, representation or
warranty of any member of the Corn Products
Group.
"Corn Products Group" shall mean Corn Products
and each Business Entity which is contemplated to become a
Subsidiary of Corn Products hereunder, including those identified
on Schedule 7.20(B) hereto. "Corn Products Group" shall not be
deemed to
31
include the Minority-Investment Companies or the Corn Products
Licensees, unless the relevant provision explicitly includes such
entities.
"Corn Products Indemnitees" shall mean Corn
Products, each member of the Corn Products Group, each of their
respective present, former or future directors, officers,
employees and agents, as such, and each of the heirs, executors,
successors and assigns of any of the foregoing.
"Corn Products Insured Claim" shall mean any
claim, asserted against (x) CPC or any of its Subsidiaries with
respect to the Corn Products Assets or the Corn Products Business
(including, without limitation, where CPC or its Subsidiaries are
joint defendants with other Persons) or (y) Corn Products or any
of its Subsidiaries (including, without limitation, where Corn
Products or its Subsidiaries are joint defendants with other
Persons), in each case with respect to any claim, suit, action,
proceeding, injury, loss, liability, damage or expense incurred
or claimed to have been incurred (i) prior to the Effective Time
or (ii) in connection with the conduct of the Corn Products
Business prior to the Effective Time, which claim, suit, action,
proceeding, injury, loss, liability, damage or expense arises out
of an insured occurrence under one or more Policies, except that
if such occurrence is also covered under any insurance policies
issued to Corn Products or its Subsidiaries it shall be deemed a
Corn Products Uninsured Claim.
"Corn Products Liabilities" shall mean:
(i) any and all Liabilities that are expressly
contemplated by this Agreement or any
Ancillary Agreement (or the Schedules hereto
or thereto, including Schedule 7.20(E)
hereto) as Liabilities to be assumed by Corn
Products or any member of the Corn Products
Group, and all agreements, obligations and
Liabilities of any member of the Corn
Products Group under this Agreement or any of
the Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities), primarily
relating to, arising out of or resulting
from:
(A) the operation of the Corn Products
Business, as conducted at any time (i) prior
to the Effective Time (but excluding any
Liability relating to, arising out of or
resulting from any act or failure to act by
any director, officer, employee, agent or
representative (whether or not such act or
failure to act is or was within such person's
authority)) or (ii) after the Effective Time
(including any Liability relating to, arising
out of or resulting from any act or failure
to act by any director, officer, employee,
agent or representative (whether or not such
act or failure to act is or was within such
person's authority));
32
(B) the operation of any business conducted
by Corn Products or any Subsidiary of Corn
Products at any time after the Effective Time
(including any Liability relating to, arising
out of or resulting from any act or failure
to act by any director, officer, employee,
agent or representative (whether or not such
act or failure to act is or was within such
person's authority)); or
(C) any Corn Products Assets;
whether arising before, on or after the Distribution
Date; and
(iii) all Liabilities reflected as liabilities or
obligations on the Corn Products Balance
Sheet or the accounting records supporting
such balance sheet, and all Liabilities
arising or assumed by or for any member of
the Corn Products Group subsequent to the
date of such balance sheet which, had they
arisen or been assumed on or before such date
and been retained as of such date, would have
been reflected on such balance sheet, subject
to any discharge of such Liabilities
subsequent to the date of the Corn Products
Balance Sheet.
Notwithstanding the foregoing, the Corn Products
Liabilities shall not include:
(x) any Liabilities that are expressly
contemplated by this Agreement or any
Ancillary Agreement (or the Schedules
hereto or thereto) as Liabilities to be
retained or assumed by CPC or any
member of the CPC Group, including
those listed on Schedule 7.20(F);
(y) any Liabilities primarily relating to,
arising out of or resulting from any
terminated or divested Business Entity,
business or operation formerly owned or
managed by or associated with Corn
Products or any Corn Products Business;
any Liabilities which are excluded by
this clause (y) from the definition of
Corn Products Liabilities shall be
deemed to be CPC Liabilities; or
(z) all agreements and obligations of any
member of the CPC Group under this
Agreement or any of the Ancillary
Agreements.
Notwithstanding any provision of this Agreement
to the contrary, the "Corn Products Liabilities" shall (i)
specifically include any Corn Products Uninsured Claims and (ii)
specifically exclude any Corn Products Insured Claims, any
deductible payable by CPC under any Policy in connection with a
Corn Products Insured Claim and any liability in excess of
33
the applicable coverage limits of the applicable Policies with
respect to any Corn Products Insured Claim.
"Corn Products Licensees" shall mean those
entities set forth on Schedule 7.20(G).
"Corn Products Permits" shall have the meaning
set forth in Section 1.1(d) hereof.
"Corn Products Uninsured Claim" shall mean any
claim asserted against CPC, Corn Products or any of their
respective Subsidiaries (including, without limitation, where
CPC, Corn Products or any of their respective Subsidiaries are
joint defendants with other Persons) with respect to any claim,
suit, action, proceeding, injury, loss, liability, damage or
expense incurred or claimed to have been incurred in connection
with the conduct of the Corn Products Business prior to the
Effective Time, which claim, suit, action, proceeding, injury,
loss, liability, damage or expense arises out of an occurrence
(i) of a type for which insurance is not available under any
Policy (without giving effect to coverage limits or deductibles
of any such Policy) or (ii) that is expressly deemed to be a Corn
Products Uninsured Claim under this Agreement.
"Corn Refining Business" shall have the meaning
set forth in the recitals hereto.
"CPC" shall mean CPC International Inc., a
Delaware corporation, or any successor thereto other than Corn
Products or any Subsidiary of Corn Products.
"CPC Assets" shall mean, collectively, all the
rights and Assets owned or held by CPC or any Subsidiary of CPC,
except the Corn Products Assets.
"CPC Business" shall mean each and every business
conducted at any time by CPC or any Subsidiary of CPC except a
Corn Products Business.
"CPC Common Stock" shall have the meaning set forth
in the recitals hereto.
"CPC Contracts" shall mean all the contracts and
agreements to which CPC or any of its Subsidiaries or Affiliates
is a party or by which it or any of its Subsidiaries or
Affiliates is bound, except the Corn Products Contracts.
"CPC Group" shall mean CPC and each person (other
than any member of the Corn Products Group) that is a Subsidiary
of CPC.
"CPC Indemnitees" shall mean CPC, each member of
the CPC Group, each of their respective present, former or future
directors, officers, employees and agents as
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such, and each of the heirs, executors, successors and assigns of
any of the foregoing, except the Corn Products Indemnitees.
"CPC Liabilities" shall mean collectively, all
obligations and Liabilities of CPC or any Subsidiary of CPC,
except the Corn Products Liabilities. Notwithstanding any
provision of this Agreement to the contrary, the "CPC
Liabilities" shall (i) specifically include any Corn Products
Insured Claims, any deductible borne by any member of the CPC
Group (but not by any member of the Corn Products Group) under
any Policy in connection with a Corn Products Insured Claim and
any liability in excess of the applicable coverage limits of the
applicable Policies with respect to any Corn Products Insured
Claim and (ii) specifically exclude any Corn Products Uninsured
Claim; provided, however, that nothing in this clause shall be
deemed to constitute (or to reflect) an assignment of any Policy
to Corn Products or any member of the Corn Products Group.
"Debt Agreement" shall mean the Debt Agreement
between CPC and Corn Products relating to the Distribution.
"Distribution" shall mean the distribution on the
Distribution Date to holders of record of shares of CPC Common
Stock as of the Distribution Record Date of the Corn Products
Common Stock owned by CPC on the basis of one share of Corn
Products Common Stock for every four shares of CPC Common Stock
outstanding on the Distribution Record Date.
"Distribution Date" shall mean the date
determined by CPC's Board of Directors as the date as of which
the Distribution shall be effected.
"Distribution Record Date" shall mean the date
determined by CPC's Board of Directors as the record date for the
Distribution.
"Effective Time" shall mean 11:59:59 p.m. New York
City Time on the Distribution Date.
"Employee Benefits Agreement" shall mean the
Employee Benefits Agreement between CPC and Corn Products
relating to the Distribution.
"Form 10" shall mean the Registration Statement
on Form 10 filed by Corn Products with the SEC.
"Governmental Authority" shall mean any federal,
state, local, foreign or international court, government,
department, commission, board, bureau, agency, official or other
regulatory, administrative or governmental authority.
"Indemnifiable Losses" shall mean any and all
losses, liabilities, claims, damages, demands, costs or expenses
(including, without limitation, reasonable attorneys' fees and
any and all out-of-pocket expenses) reasonably incurred in
investigating, preparing for or
35
defending against any Actions or potential Actions or in settling
any Action or potential Action or in satisfying any judgment,
fine or penalty rendered in or resulting from any Action.
"Indemnifying Party" shall have the meaning set
forth in Section 3.3.
"Indemnitee" shall have the meaning set forth in
Section 3.3.
"Information Statement" shall mean the
Information Statement sent to the holders of shares of CPC Common
Stock and filed as an exhibit to Corn Products' Form 10 in
connection with the Distribution, including any amendment or
supplement thereto.
"Injunctive Relief" shall have the meaning set forth
in Section 6.2.
"Insurance Proceeds" shall mean those monies (i)
received by an insured from an insurance carrier or (ii) paid by
an insurance carrier on behalf of any insured, in either case net
of any applicable premium adjustment, retrospectively-rated
premium, deductible, retention, or cost of reserve paid or held
by or for the benefit of such insured.
"Lease Assumption" shall mean the Assignment and
Assumption of Portion of Lessee's Interest in Lease between CPC
and Corn Products relating to the Distribution
"Liabilities" shall mean any and all losses,
claims, charges, debts, demands, actions, causes of action,
suits, damages, obligations, payments, costs and expenses,
accounts, reckonings, bonds, specialties, indemnities and similar
obligations, exonerations, covenants, contracts, controversies,
agreements, promises, omissions, variances, guarantees, make
whole agreements and similar obligations, and other liabilities,
including all contractual obligations, whether absolute or
contingent, matured or unmatured, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whenever arising, and
including those arising under any law, rule, regulation, Action,
threatened or contemplated Action (including the costs and
expenses of demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all
costs and expenses, whatsoever reasonably incurred in
investigating, preparing or defending against any such Actions or
threatened or contemplated Actions), order or consent decree of
any Governmental Authority or any award of any arbitrator or
mediator of any kind, and those arising under any contract,
commitment or undertaking, including those arising under this
Agreement or any Ancillary Agreement, in each case, whether or
not recorded or reflected or required to be recorded or reflected
on the books and records or financial statements of any Person.
"Master Supply Agreement" shall mean the Master
Supply Agreement entered into between CPC and Corn Products
relating to the Distribution.
"Master License Agreement" shall mean the Master
License Agreement entered into between CPC and Corn Products
relating to the Distribution.
"Minority-Investment Companies" or
"Minority-Investment Company" shall mean those Business Entities
set forth on Schedule 7.20(H).
36
"NYSE" shall mean the New York Stock Exchange,
Inc.
"Person" shall mean any natural person,
corporation, business trust, joint venture, limited liability
company, association, company, partnership or government, or any
agency or political subdivision thereof.
"Policies" shall mean insurance policies and
insurance contracts of any kind (other than life and benefits
policies or contracts) issued to CPC or any of its Subsidiaries
(other than Subsidiaries that become Subsidiaries of Corn
Products after the Effective Time), including, without
limitation, primary, excess and umbrella policies, comprehensive
general liability policies, director and officer liability,
fiduciary liability, automobile, aircraft, property and casualty,
workers' compensation and employee dishonesty insurance policies,
bonds and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges
thereunder.
"Provider" shall have the meaning set forth in
Section 5.1.
"Rabbi Trusts" shall mean the trusts established
pursuant to the CPC International Inc. Latin America Pension Plan
Trust Agreement, dated as of June 1, 1988, by and between CPC and
The Northern Trust Company, as amended; the CPC International
Inc. Pension Plan for International Employees Trust Agreement,
dated as of June 1, 1988, as amended; the CPC International Inc.
Management Incentive Plan Trust Agreement, dated as of June 1,
1988, by and between CPC and The Northern Trust Company, as
amended; the CPC International Inc. Deferred Compensation Plan
for Outside Directors Trust Agreement, dated as of June 1, 1988,
by and between CPC and The Northern Trust Company, as amended;
and the CPC International Inc. Special Retirement Benefits Trust
Agreement, dated as of June 1, 1988, by and between CPC and The
Northern Trust Company, as amended.
"Recipient" shall have the meaning set forth in
Section 5.1.
"Records" shall have the meaning set forth in
Section 4.1.
"Rules" shall have the meaning set forth in
Section 6.2.
"Ruling" shall have the meaning set forth in
Section 1.1(g).
"SEC" shall mean the United States Securities and
Exchange Commission.
"Security Interest" shall mean any mortgage,
security interest, pledge, lien, charge, claim, option, right to
acquire, voting or other restriction, right-of-way, covenant,
condition, easement, encroachment, restriction on transfer, or
other encumbrance of any nature whatsoever.
"Stock Plans" shall mean the CPC International
Inc. 1984 Stock and Performance Plan and the CPC International
Inc. 1993 Stock and Performance Plan.
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"Subsidiary" of any entity shall mean any
corporation, partnership or other entity of which such entity (i)
owns, directly or indirectly, or has beneficial ownership of,
ownership interests sufficient to elect a majority of the Board
of Directors (or persons performing similar functions)
(irrespective of whether at the time any other class or classes
of ownership interests of such corporation, partnership or other
entity shall or might have such voting power upon the occurrence
of any contingency) or (ii) is a general partner or an entity
performing similar functions.
"Tax" shall have the meaning set forth in the Tax
Sharing Agreement.
"Tax Indemnification Agreement" shall mean the
Tax Indemnification Agreement between CPC and Corn Products
relating to the Distribution.
"Tax Sharing Agreement" shall mean the Tax
Sharing Agreement between CPC and Corn Products relating to the
Distribution.
"Third Party Claim" shall have the meaning set
forth in Section 3.3.
"Transition Services Agreement" shall mean the
Transition Services Agreement between CPC and Corn Products
relating to the Distribution.
SECTION 7.21. References; Interpretation. References
in this Agreement to any gender include references to all
genders, and references to the singular include references to the
plural and vice versa. The words "include", "includes" and
"including" when used in this Agreement shall be deemed to be
followed by the phrase "without limitation". Unless the context
otherwise requires, references in this Agreement to Articles,
Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, such
Agreement. Unless the context otherwise requires, the words
"hereof", "hereby" and "herein" and words of similar meaning when
used in this Agreement refer to this Agreement in its entirety
and not to any particular Article, Section or provision of this
Agreement. The term "commercially reasonable efforts" shall not
be deemed to require any party to take any action that would
require it to pay, in the aggregate with respect to a specific
circumstance, an amount in excess of $5,000 (after subtracting
from such aggregate expenditures any amounts reimbursed by the
other party).
* * *
38
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the day and year first above
written.
CPC INTERNATIONAL INC.
By:________________________________
Name:
Title:
CORN PRODUCTS INTERNATIONAL, INC.
By:________________________________
Name:
Title:
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