EXHIBIT 10.19
AGREEMENT
AGREEMENT, dated July 31, 1992, by and between General Mills, Inc., a
Delaware corporation ("Protected") and PepsiCo, Inc. a North Carolina
corporation ("Limited"), (Protected and Limited are hereinafter 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 Mills, Inc.
Number One General Mills Boulevard
Minneapolis, MN 55426
Attention: General Counsel
If to Limited: PepsiCo, Inc.
700 Anderson Hill Road
Purchase, NY 10577
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 MILLS, INC.
/s/ Clifford L. Whitehill
Clifford L. Whitehill
Senior Vice President, General
Counsel and Secretary
PEPSICO, INC.
/s/ Lawrence F. Dickie
Lawrence F. Dickie,
Vice President, Associate General
Counsel and Assistant Secretary