EXHIBIT 10(a)
AGREEMENT
AGREEMENT, dated as of October 17, 1994, by and between
General Mills, Inc. a Delaware corporation ("GMI") and CPC
International Inc., a Delaware corporation ("CPC"), (GMI
and CPC collectively, the "Parties").
WHEREAS, the Parties are conducting negotiations concerning
a possible joint venture between them (the "Joint Venture")
and, in connection with such negotiations and with the
possible formation and operation of the Joint Venture, the
Parties have requested access to certain confidential
business information of each other.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and in consideration of each Party's
disclosure of the above referenced confidential business
information to the other Party (the scope and other terms
of which disclosure are not governed by this instrument),
the Parties hereto agree, with the intention of being
legally bound, as follows:
1. Certain Definitions
(a) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations,
as currently in effect (the "Exchange Act
Rules"), under the Securities Exchange Act of
1934, as amended, as currently in effect (the
"Exchange Act").
(b) "Applicable Debt Security" shall mean any
evidence of indebtedness (including notes and
debentures) of either Party which is either (i)
convertible into equity securities or (ii) not
publicly traded.
(c) "Beneficial Owner" shall have the meaning
ascribed to such term in Rule 13d-3 of the
Exchange Act Rules, and, for the purposes of this
Agreement, a Person shall have "Beneficial
Ownership" of securities of which such Person is
the Beneficial Owner.
(d) "Common Stock" shall mean the common stock
of each of the Parties, "GMI Common Stock" shall
mean the common stock $.10 par value of GMI and
"CPC Common Stock" shall mean the common stock
$.25 par value of CPC.
(e) "CPC Security" shall mean any equity
security and any Applicable Debt Security of CPC,
or right to acquire any such equity or Applicable
Debt Security, including by purchase, conversion
or exchange, including, but not limited to, CPC
Common Stock and preferred stock and "GMI
Security" shall mean any equity security and any
Applicable Debt Security of GMI, or right to
acquire any such equity or Applicable Debt
Security, including by purchase, conversion or
exchange, including, but not limited to, GMI
Common Stock and preferred stock.
(f) "Group" shall mean any partnership, limited
partnership, Syndicate or other group within the
meaning of Section 13 (d) (3) of the Exchange
Act.
(g) "Participant" shall have the meaning
ascribed to such term in Regulation 14A of the
Exchange Act Rules.
(h) "Person" shall mean any individual, firm,
corporation, partnership, trust or other entity.
(i) "Proxies" shall have the meaning ascribed to
such term in Regulation 14A of the Exchange Act
Rules.
(j) "Solicitation" shall have the meaning
ascribed to such term in Regulation 14A of the
Exchange Act Rules.
(k) "Subsidiary" shall mean, with respect to any
Person, any corporation which is controlled by
such Person by ownership of securities or
otherwise.
2. Representation and Warranty by each of the Parties
GMI represents and warrants to CPC that as of the date
of this Agreement neither GMI nor any of its
Affiliates or Associates, (other than employee benefit
plans or pension trusts), is either the Beneficial
Owner or has any control of any CPC Securities. CPC
represents and warrants to GMI that as of the date of
this Agreement neither CPC nor any of its Affiliates
or Associates (other than employee benefit plans or
pension trusts), is either the Beneficial Owner or has
any control of any GMI Securities.
3. Certain Agreements by GMI
GMI covenants with CPC that, without the prior written
consent of CPC, GMI and its 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 CPC Securities or
any of the assets of either CPC or any Subsidiary
of CPC except for sales of products in the
ordinary course;
(b) (i) directly or indirectly solicit proxies
or become a participant in a solicitation of
proxies with respect to any matter presented to
CPC's stockholders for the exercise of their
voting rights, or (ii) engage in any course of
conduct for the purpose of influencing or
affecting the stockholders of CPC with respect to
the exercise of their voting rights on any matter
presented for a vote by CPC's stockholders;
(c) otherwise act to seek control of or to
influence, the Board of Directors, management,
policies or affairs of either CPC or any
Subsidiary of CPC;
(d) publicly (or in a manner requiring CPC to
disclose publicly) (i) propose any acquisition of
any or all of the assets of CPC or any of its
Subsidiaries, or any acquisition of any CPC
Securities, or any merger, consolidation,
business combination or similar transaction with,
or change of control of, CPC or any of its
Subsidiaries or its or their assets, (ii) make or
propose a tender or exchange offer for any CPC
Securities, (iii) propose or suggest the
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 GMI is precluded
hereunder from taking itself.
4. Certain Agreements by CPC
CPC covenants with GMI that, without the prior written
consent of GMI, CPC and its Affiliates and Associates,
(other than employee benefit plans or pension 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 GMI Securities or
any of the assets of either GMI or any Subsidiary
of GMI except for sales of products in the
ordinary course;
(b) (i) directly or indirectly solicit proxies
or become a participant in a solicitation of
proxies with respect to any matter presented to
GMI's stockholders for the exercise of their
voting rights, or (ii) engage in any course of
conduct for the purpose of influencing or
affecting the stockholders of GMI with respect to
the exercise of their voting rights on any matter
presented for a vote by GMI stockholders;
(c) otherwise act to seek control of or to
influence, the Board of Directors, management,
policies or affairs of either GMI or any
Subsidiary of GMI;
(d) publicly (or in a manner requiring GMI to
disclose publicly) (i) propose any acquisition of
any or all of the assets of GMI or any of its
Subsidiaries, or any acquisition of any GMI
Securities, or any merger, consolidation,
business combination or similar transaction with,
or change of control of, GMI or any of its
Subsidiaries or its or their assets, (ii) make or
propose a tender or exchange offer for any GMI
Securities, (iii) propose or suggest the
possibility of any of the other actions set forth
in this section 4, or (iv) propose any amendment
to, or modification or waiver of, any provision
of this Agreement.
(e) solicit, initiate, encourage, finance or
assist any other Person, Persons or Group to take
or seek to take any action which CPC is precluded
hereunder from taking itself.
5. Term of Agreement
The term of this Agreement shall be the longer of (a)
ten (10) years from the last date on which both CPC
and GMI have an interest in the Joint Venture, or (b)
ten (10) years from the date of the termination of
negotiations between the Parties with respect to the
formation of the Joint Venture in the event no such
Joint Venture results therefrom.
6. No Solicitation of Employees
Each party agrees that as of the date hereof and for
the longer of (a) three years from the last date on
which both Parties have an interest in the JV or (b)
three years from the date of termination of
unsuccessful negotiations between the Parties with
respect to the formation of the JV, it shall not
directly or indirectly, solicit for employment or hire
any employee of the other Party or its Subsidiaries or
Affiliates with whom such Party has had contact or who
become known to such Party by reason of the JV or
negotiations therefor; provided, however, that this
provision shall not prevent either Party from
employing any such person who contacts the Party on
his or her own initiative without any direct or
indirect solicitation or encouragement on the part of
such Party.
7. Miscellaneous
(a) Applicable Law. This Agreement and the
rights 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 Federal or State Courts in
the State of Delaware, in any legal action or
proceeding relating to or arising out of this
Agreement and all actions contemplated hereby.
The Parties agree that service of process in any
such legal action or proceeding in the manner
provided in Section 7(e) hereof, in addition to
any other means of service permitted by the laws
and rules applicable to such court, shall be
deemed valid service thereof.
(c) Specific Performance. Each Party agrees and
acknowledges that in the event of any breach by
it of the terms of this Agreement, the other
Party would be irreparably harmed and could not
be made whole by monetary damages. It is
accordingly agreed that, in addition to any other
remedy which may be available at law or in
equity, specific performance of this Agreement
and mandatory injunctive or other relief,
including the divestiture of CPC Securities or
GMI Securities (as the case may be) by the
breaching Party, shall be remedies available
under this Agreement, as may be necessary or
appropriate to carry out the intent of the
Parties with respect to this Agreement, in any
action instituted in any court having subject
matter jurisdiction thereof.
(d) Counterparts. This Agreement may be
executed in any number of counterparts. Any
single counterpart or set of counterparts signed
by the Parties shall constitute a full and
original Agreement for all purposes.
(e) Notices. In any case where any notice,
service of process or other communication is
required or permitted to be given hereunder, such
notice, service of process or other communication
shall be in writing and (i) personally delivered,
(ii) sent by postage prepaid registered first
class post (if inland) or airmail (if overseas)
or (except for service of process) (iii)
transmitted by telex, telecopy or cable (with
postage prepaid confirmation) at the following
addresses (or such other address as the Parties
may designate from time to time to each other by
due notice pursuant to this Section 7 (e)):
If to GMI General Mills, Inc.
Number One General Mills Boulevard
Minneapolis, MN 55426
Attention : General Counsel
If to CPC CPC International Inc.
Englewood Cliffs, New Jersey 07632
Attention : General Counsel
(f) Successors. This Agreement shall be binding
upon and inure to the benefit of the Parties
hereto and their respective directors, officers,
legal representatives, attorneys, successors and
assigns, including any Person who may succeed to
the assets or business of either Party by way of
a consolidation, merger, sale of substantially
all of such Party's assets or purchase of
substantially all of such Party's stock. This
Agreement shall not be assigned without the prior
written consent of all the Parties hereto.
(g) Entire Agreement. The terms and conditions
contained herein constitute the entire agreement
between the Parties relating to the subject
matter of this Agreement and shall supersede all
previous communications between the Parties with
respect to the subject matter of this Agreement.
(h) Amendment. This Agreement may be varied,
amended or extended only by the written agreement
of the Parties through their duly authorized
officers or representatives.
(i) Expenses. Each of the Parties shall pay its
own legal and other costs, charges and expenses
connected with this Agreement and the performance
of their obligations hereunder.
(j) Severability. If any provision (or any part
thereof) of this Agreement is held illegal or
unenforceable in a judicial proceeding, such
provision (or the affected part thereof) shall be
severed from this Agreement to that extent and
shall be inoperative so long as such judicial
determination shall remain in effect, and the
remainder of this Agreement shall otherwise
remain binding on the Parties hereto, it being
the intention of the parties, in the event any
such provision is held illegal or unenforceable
in part, that such provision be enforced to the
fullest scope and extent permissible consistent
with the original intent of such provision and
the ruling of such judicial authority.
(k) Headings. The descriptive headings of this
Agreement are inserted for convenience only and
do not constitute a part of this Agreement.
(l) No Waiver of Rights. No failure or delay on
the part of any Party in the exercise of any
power of right hereunder shall operate as a
waiver thereof. No single or partial exercise of
any right or power hereunder shall operate as a
waiver of such right or power or of any other
right or power. The waiver by any Party of a
breach of any provision of this Agreement shall
not operate or be construed as a waiver of any
other or subsequent breach hereunder. All rights
and remedies existing under this Agreement are
cumulative with, and not exclusive of, any rights
or remedies otherwise available.
(m) 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 fist written
above.
Witness GENERAL MILLS, INC.
/s/ Leslie Frecon By:/s/ H. B. Atwater, Jr.
Witness CPC INTERNATIONAL INC.
/s/ Marjory A. Appel By:/s/ Charles R. Shoemate
Its: Chairman and Chief Executive Officer