EXHIBIT 10.19
AGREEMENT
AGREEMENT, dated July 31, 1992, by and between General Xxxxx, Inc., a
Delaware corporation ("Protected") and PepsiCo, Inc., a North Carolina
corporation ("Limited"), (Protected and Limited are hereinafter collectively
referred to as the "Parties").
WHEREAS, the Parties propose to enter into certain negotiations concerning
a possible joint venture between them (the "Joint Venture") and, in connection
with such negotiations and with the formation and operations of the Joint
Venture in the event agreement is reached in that connection, Limited has
requested access to certain confidential business information of Protected.
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and in consideration of Protected's disclosure of the above-referenced
confidential business information to Limited (the scope and other terms of which
disclosure are not governed by this instrument), the Parties hereto agree, with
the intention of being legally bound, as follows:
1. Certain Definitions
(a) "Affiliate" and "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations, as currently
in effect (the "Exchange Act Rules"), under the Securities Exchange Act of
1934, as amended, as currently in effect (the "Exchange Act").
(b) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the Exchange Act Rules, and, for the purposes of this Agreement, a
Person shall have "Beneficial Ownership" of securities of which such Person
is the Beneficial Owner.
(c) "Common Stock" shall mean the common stock $.75 par value, of Protected.
(d) "Protected Security" shall mean any equity or debt security of Protected,
or right to acquire any such equity or debt security, including by
purchase, conversion or exchange, including, but not limited to, Common
Stock, preferred stock, notes, debentures and other evidence of
indebtedness.
(e) "Group" shall mean any partnership, limited partnership, syndicate or other
group within the meaning of Section 13(d)(3) of the Exchange Act.
(f) "Participation" shall have the meaning ascribed to such term in Regulation
14A of the Exchange Act Rules.
(g) "Person" shall mean any individual, firm, corporation, partnership, trust
or other entity.
(h) "Proxies" shall have the meaning ascribed to such term in Regulation 14A of
the Exchange Act Rules.
(i) "Solicitation" shall have the meaning ascribed in such term in Regulation
14A of the Exchange Act Rules.
(j) "Subsidiary" shall mean, with respect to any Person, any corporation which
is controlled by such Person, by ownership of securities or otherwise.
2. Representation and Warranty by Limited
Limited represents and warrants to Protected that as of the date of this
Agreement neither Limited nor any of its Affiliates or Associates, (other
than employee benefit plans or pension trusts), is either the Beneficial
Owner or has any control of any Protected Securities.
3. Certain Agreements by Limited
Limited covenants with Protected that, without the prior written consent of
Protected, Limited and its Affiliates and Associates, (other than employee
benefit plans or pension trusts), singly or acting together, in concert, or
as a Group with each other or any other Person, directly or indirectly
through one or more intermediaries or otherwise, shall not:
(a) acquire, offer to acquire or agree to acquire, by purchase or otherwise,
Beneficial Ownership of, or become the Beneficial Owner of, or acquire an
interest in, any Protected Securities or any of the assets of either
Protected or any Subsidiary of Protected;
(b) (i) directly or indirectly solicit proxies or become a participant in a
solicitation of proxies with respect to any matter presented to Protected's
stockholders for the exercise of their voting rights, or (ii) engage in any
course of conduct for the purpose of influencing or affecting the
stockholders of Protected with respect to the exercise of their voting
rights on any matter presented for a vote by Protected's stockholders;
(c) otherwise act to seek control of the Board of Directors, management,
policies or affairs of either Protected or any Subsidiary of Protected;
(d) publicly (or in a manner requiring Protected to disclose publicly) (i)
propose any acquisition of any or all of the assets of Protected or any of
its Subsidiaries, or any acquisition of any Protected Securities, or any
merger, consolidation, business combination or similar transaction with, or
change control of, Protected or any of its Subsidiaries or its or their
assets, (ii) make or propose a tender or exchange offer for any Protected
Securities, (iii) propose or suggest the possibility of any of the other
actions set forth in this section 3, or (iv) propose any amendment to, or
modification or waiver of, any provision of this Agreement.
(e) solicit, initiate, encourage, finance or assist any other Person, Persons
or Group to take or seek to take any action which Limited is precluded
hereunder from taking itself.
4. Term of Agreement
The term of this Agreement shall be ten (10) years from the last date on
which both Protected and Limited have an interest in the Joint Venture.
5. Miscellaneous
(a) Applicable Law. This Agreement and the rights and liabilities of the
Parties hereto shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts made and to be
performed therein.
(b) Submission to Jurisdiction. Each of the Parties hereby agrees to submit to
the exclusive jurisdiction of the United States District Court for the
District of Minnesota, sitting in Minneapolis, Minnesota, in any legal
action or proceeding relating to or arising out of this Agreement and all
actions contemplated hereby. The Parties agree that service of process in
any such legal action or proceeding in the manner provided in Section 5(e)
hereof, in addition to any other means of service permitted by the laws and
rules applicable to such court, shall be deemed valid service thereof.
(c) Specific Performance. Limited agrees and acknowledges that in the event of
any breach by it of the terms of this Agreement, Protected would be
irreparably harmed and could not be made whole by monetary damages. It is
accordingly agreed that Protected, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to compel
specific performance of this Agreement, and shall be entitled to mandatory
injunctive or other relief, including the divestiture of Protected
Securities by Limited, as may be necessary or appropriate to carry out the
intent of the Parties with respect to this Agreement, in any action
instituted in any court having subject matter jurisdiction thereof.
(d) Counterparts. This Agreement may be executed in any number of counterparts.
Any single counterpart or set of counterparts signed by the Parties shall
constitute a full and original Agreement for all purposes.
(e) Notices. In any case where any notice, service of process or other
communication is required or permitted to be given hereunder, such notice,
service of process or other communication shall be in writing and (i)
personally delivered, (ii) sent by postage prepaid registered first class
post (if inland) or airmail (if overseas) or (except for service of
process) (iii) transmitted by telex, telecopy or cable (with postage
prepaid confirmation) at the following addresses (or such other address as
the Parties may designate from time to time to each other by due notice
pursuant to this Section 5(e)):
If to Protected: General Xxxxx, Inc.
Number Xxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: General Counsel
If to Limited: PepsiCo, Inc.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
(f) Successors. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and their respective directors, officers, legal
representatives, attorneys, successors and assigns, including any Person
who may succeed to the assets or business of either Party by way of a
consolidation, merger, sale of substantially all of such Party's assets or
purchase of substantially all of such Party's stock. This Agreement shall
not be assigned without the prior written consent of all the Parties
hereto.
(g) Entire Agreement. The terms and condition contained herein constitute the
entire agreement between the Parties relating to the subject matter of this
Agreement and shall supersede all previous communications between the
Parties with respect to the subject matter of this Agreement.
(h) Amendment. This Agreement may be varied, amended or extended only by the
written agreement of the Parties through their duly authorized officers or
representatives.
(i) Expenses. Each of the Parties shall pay its own legal and other costs,
charges and expenses connected with this Agreement and the performance of
their obligations hereunder.
(j) Severability. If any provision (or any part thereof) of this Agreement is
held illegal or unenforceable in a judicial proceeding, such provision (or
the affected part thereof) shall be severed from this Agreement to that
extent and shall be inoperative so long as such judicial determination
shall remain in effect, and the remainder of this Agreement shall otherwise
remain binding on the Parties hereto, it being the intention of the
parties, in the event any such provision is held illegal or unenforceable
in part, that such provision be enforced to the fullest scope and extent
permissible consistent with the original intent of such provision and the
ruling of such judicial authority.
(k) Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(l) No Waiver of Rights. No failure or delay on the part of any Party in the
exercise of any power or right hereunder shall operate as a waiver thereof.
No single or partial exercise of any right or power hereunder shall operate
as a waiver of such right or power or of any other right or power. The
waiver by any Party of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other or subsequent breach
hereunder. All rights and remedies existing under this Agreement are
cumulative with, and not exclusive of, any rights or remedies otherwise
available.
(m) No Third-Party Rights. This Agreement shall not be deemed or construed in
any way to result in the creation of any rights in any Person not a Party
to this Agreement.
(n) Further Assurances. At the request of either Party hereto, the other Party
hereto shall execute and deliver (and shall cause their Affiliates and
Associates to execute and deliver) to such Party such other documents and
instruments as may be reasonably necessary to implement or evidence the
foregoing.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their respective duly authorized officers as of the day and year first
written above.
GENERAL XXXXX, INC.
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx
Senior Vice President, General
Counsel and Secretary
PEPSICO, INC.
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx,
Vice President, Associate General
Counsel and Assistant Secretary
