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Exhibit 10(h)
WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement, dated as of , 2000 (this
"AGREEMENT"), is made and entered into by and between Xxxx Agriculture Company,
a Nebraska corporation ("XXXX"), and Purina Xxxxx, Inc., a Delaware corporation
formerly known as PM Holdings Corporation ("PURINA").
RECITALS
A. Prior to _______________, 2000, Purina was known as PM Holdings
Corporation ("PM HOLDINGS") and owned one-hundred percent (100%) of the
capital stock of the Delaware corporation known as Purina Xxxxx, Inc.
("OLD PMI").
B. On October 28, 1999 (the "Petition Date"), PM Holdings, Old PMI and
certain of Old PMI's subsidiaries (collectively, the "DEBTORS") filed
voluntary petitions for relief under Chapter 11 of the United States
Bankruptcy Code.
C. On January __, 2000, the Debtors filed a Joint Plan of Reorganization
(as the same may be amended in accordance with the terms thereof, the
"PLAN") with the United States Bankruptcy Court for the District of
Delaware (the "BANKRUPTCY COURT").
D. Pursuant to the Plan and that certain Agreement and Plan of Merger
dated as of , 2000, Old PMI has merged with and into PM Holdings (the
"MERGER"). PM Holdings survived the Merger and changed its name to
Purina Xxxxx, Inc.
E. Pursuant to the Plan and in connection with the Merger and this
Agreement, Purina has agreed to xxxxx Xxxx an option to purchase
certain warrants entitling Xxxx to purchase certain shares of its
common stock to be authorized and issued pursuant to the Plan (the "NEW
COMMON STOCK").
AGREEMENT
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In consideration of the foregoing and the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. GRANT OF OPTION. Purina hereby grants to Xxxx an option
(the "OPTION) to purchase, subject to the terms hereof, warrants (the
"WARRANTS") entitling Xxxx to purchase up to ten percent (10%) of the aggregate
number of shares of the New Common Stock that are issued and outstanding
immediately after the Effective Date (as defined in the Plan) (after giving
effect to the exercise of the Warrant) for a purchase price of five-million
dollars ($5,000,000) (the "OPTION EXERCISE PRICE"). If the Option is not
exercised prior to or on the Effective Date, it will terminate and be of no
further force and effect.
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2. EXERCISE OF OPTION. (a) Xxxx may exercise the Option at any
time prior to and including the Effective Date of the Plan.
(b) In the event Xxxx desires to exercise the Option,
Xxxx shall send a written notice (the "EXERCISE NOTICE") to Purina declaring
that it is exercising the Option and specifying a date (the "CLOSING DATE"),
which shall be a business day which is no more than five (5) business days after
delivery of such notice, and place for the closing of such purchase but in any
event shall be on or before the Effective Date (the "CLOSING").
3. CLOSING. At the Closing:
(a) Xxxx shall deliver the Option Exercise Price to
Purina by wire transfer of immediately available funds to an account specified
in writing by Purina or by such other method as Purina may specify; and
(b) Purina and Xxxx shall execute an agreement that
sets forth the terms and conditions governing the Warrants in the form attached
hereto as EXHIBIT A (the "WARRANT AGREEMENT").
4. LOST OPTION. Upon receipt by Purina of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Purina shall execute and deliver a new Agreement of
like tenor and date.
5. REPRESENTATIONS AND WARRANTIES OF PURINA. Purina represents
and warrants to Xxxx that:
(a) Purina is a corporation organized, validly
existing and in good standing under the laws of the State of Delaware, and has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement;
(b) the execution and delivery by Purina of this
Agreement and the consummation by Purina of the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate action on
the part of Purina and have been approved by the Bankruptcy Court;
(c) this Agreement has been duly executed and
delivered by Purina and constitutes the valid and binding obligation of Purina,
enforceable against Purina in accordance with its terms;
(d) on or prior to the Effective Date, Purina shall
have taken all necessary corporate action to authorize and reserve and permit it
to issue, and, if the Option is exercised, at all times from the Effective Date
through the Expiration Date (as defined in the Warrant Agreement) shall have
reserved, all shares of New Common Stock issuable pursuant to the Warrant
Agreement; and
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(e) the execution and delivery of this Agreement by
Purina does not, and the consummation by Purina of the transactions contemplated
by this Agreement will not
(i) conflict with, or result in any violation or
breach of any provision of the certificate
of incorporation, as amended to date, or
bylaws, as amended to date, of Purina,
(ii) result in any violation or breach of, or
constitute (with or without notice or lapse
of time, or both) a default (or give rise to
a right of termination, cancellation or
acceleration of any obligation or loss of
any benefit) under any of the terms,
conditions or provisions of any
post-Petition Date note, bond, mortgage,
indenture, lease, contract or other
post-Petition Date agreement, instrument or
obligation to which Purina or any of its
subsidiaries is a party or by which any of
them or any of their properties or assets
may be bound,
(iii) conflict or violate any permit, concession,
franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation
applicable to Purina or any of its
subsidiaries or any of its or their
properties or assets, or
(iv) except as may be required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended, (the "HSR Act") (if
applicable), do not require any filing or
notification with, or authorization, consent
or approval of, any governmental entity,
other than in the case of (ii) and (iii) for any such
violations, breaches, defaults, terminations, cancellations, accelerations,
conflicts, filings, notifications, authorizations, consent or approvals which
would not, individually or in the aggregate, have a material adverse effect on
Purina and the Debtors taken as a whole.
6. REPRESENTATIONS AND WARRANTIES OF XXXX. Xxxx represents and
warrants to Purina that:
(a) Xxxx is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nebraska, and has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement;
(b) the execution and delivery by Xxxx of this
Agreement and the consummation by Xxxx of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action on the
part of Xxxx;
(c) this Agreement has been duly executed and
delivered by Xxxx and constitutes the valid and binding obligation of Xxxx,
enforceable against Xxxx, in accordance with its terms;
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(d) the execution and delivery of this Agreement by
Xxxx does not, and the consummation by Xxxx of the transactions contemplated by
this Agreement will not
(i) conflict with, or result in any violation or
breach of any provision of the certificate
of incorporation, as amended to date, or
bylaws, as amended to date, of Xxxx,
(ii) result in any violation or breach of, or
constitute (with or without notice or lapse
of time, or both) a default (or give rise to
a right of termination, cancellation or
acceleration of any obligation or loss of
any benefit) under any of the terms,
conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or
other agreement, instrument or obligation to
which Xxxx or any of its subsidiaries is a
party or by which any of them or any of
their properties or assets may be bound,
(iii) conflict or violate any permit, concession,
franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation
applicable to Xxxx or any of its
subsidiaries or any of its or their
properties or assets, or
(iv) except as may be required under the HSR Act,
do not require any filing or notification
with, or authorization, consent or approval
of, any governmental entity,
other than in the case of (ii) and (iii) for any such
violations, breaches, defaults, terminations, cancellations, accelerations,
conflicts, filings, notifications, authorizations, consent or approvals which
would not, individually or in the aggregate, have a material adverse effect, on
Xxxx Industries, Inc. and Xxxx.
(e) Xxxx is effecting the purchase contemplated
hereby for its own account, for investment and not with a present view to resale
or distribution except in compliance with federal and state securities laws.
Xxxx agrees not to sell or otherwise transfer the Option without registration
under federal and state securities laws or an exemption therefrom. Xxxx
acknowledges that the Option has not been registered under the Securities Act of
1933, as amended (the "Securities Act") or the securities laws of any state, and
that the issuance of the Option is being made in reliance upon an exemption from
registration under the Securities Act for an offer and sale of securities that
does not involve a public offering.
(f) Xxxx is qualified as an accredited investor
within the meaning of Rule 501(a) of Regulation D promulgated under the
Securities Act.
7. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
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8. ASSIGNMENT. Neither Xxxx nor Purina may assign any of its
rights or obligations under this Agreement or the Option created hereunder to
any other person, without the express written consent of the other party, which
may be withheld in such party's sole discretion.
9. AMENDMENT; WAIVER. This Agreement may not be amended except
by an instrument in writing signed by the parties hereto. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by
the party or parties to be bound thereby.
10. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect, insofar as the foregoing can be
accomplished without materially affecting the economic benefits anticipated by
the parties to this Agreement. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
11. NOTICES. All notices, consents, requests, claims,
instructions or other communications to be given hereunder shall be in writing.
All such notices, consents, requests, claims, instructions or other
communications may be given personally, by registered or certified mail (with
proof of receipt, postage and expenses prepaid, return receipt requested),
express package service or facsimile. All notices will be deemed received as
follows: (a) if delivered personally, when received, (b) if mailed, three (3)
days after being mailed, (c) if sent by express package service, when signed for
and (d) if sent by facsimile, when the facsimile has transmitted over telephone
lines, as evidenced by a facsimile confirmation report generated by the
transmitted machine. Notices shall be addressed as follows:
(i) if to Xxxx, to:
Koch Agriculture Company
0000 Xxxx 00xx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxx 00000
facsimile: (000) 000-0000
attention: Xxx Xxxxxxx, Esq.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
facsimile: (000) 000-0000
attention: Xxxxx X. Xxxxx, Esq.
(ii) if to Purina, to:
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Purina Xxxxx, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
facsimile: (000) 000-0000
attention: Xxxxx X. Xxxxxx, General Counsel
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
facsimile: (000) 000-0000
attention: Xxxxxxx X. Xxxxx, Esq.
12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of Delaware, without regard to conflict of
laws principles.
13. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
15. ENTIRE AGREEMENT. Except as otherwise expressly provided,
this Agreement contains the entire agreement between the parties with respect to
the transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereof, written or oral. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto, and their respective successors and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
16. FURTHER ASSURANCES. In the event that Xxxx exercises the
Option, Purina and Xxxx shall execute and deliver all other documents and
instruments, including, but not limited to, the Warrant Agreement, and take all
other action that may be reasonably necessary to the fullest extent permitted by
law in order to consummate the transactions provided for by such exercise.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
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XXXX AGRICULTURE COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
PURINA XXXXX, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
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EXHIBIT A
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Warrant Agreement
