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Exhibit 2.1
EXECUTION COPY
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT is dated as of December 1, 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:
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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
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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
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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
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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.
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(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.
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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 and the
Minority-Investment Companies. 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
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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 Samuel C. Scott (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.
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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
Cook 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,
Cook 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
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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.
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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.
International Plaza, P.O. Box 8000
Englewood Cliffs, NJ 07632-9076
Facsimile: (201) 894-2193
Attention: Hanes A. Heller, General Counsel
If to Corn Products:
Corn Products International, Inc.
P.O. Box 345
6500 South Archer Road
Bedford Park, IL 60501-1933
Facsimile: (708) 563-6592
Attention: Marcia E. Doane, 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.
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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.
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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, Cook 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, Cook 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, Cook 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.
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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.
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"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;
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(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.
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"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;
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(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.
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"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 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 and technical
licensing agreements 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
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include the Minority-Investment Companies, 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));
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(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
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the applicable coverage limits of the applicable Policies with respect to any
Corn Products Insured Claim.
"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 such, and each of the heirs, executors, successors and assigns of any
of the foregoing, except the Corn Products Indemnitees.
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"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 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.
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"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(G).
"NYSE" shall mean the New York Stock Exchange, Inc.
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"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.
"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,
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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).
* * *
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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:
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Name:
Title:
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