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Exhibit 10(g)
ESCROW AGREEMENT
This Escrow Agreement (the "AGREEMENT"), dated as of ________,
2000, by and among Xxxx Agriculture Company, a Nebraska corporation ("XXXX
AGRICULTURE"), Purina Xxxxx, Inc. a Delaware corporation formerly known as PM
Holdings Corporation ("PURINA") and Bank One Trust Company, National
Association, a national banking association with its corporate trust office
located at 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000 (the
"ESCROW AGENT").
RECITALS
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A. Prior to ________________________, 2000, Purina was known as PM
HOLDING 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, 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 November 9, 1999, Xxxx Industries, Inc. ("XXXX"), Xxxx Agriculture
and certain holders of Old PMI's 9% Senior Subordinated Notes Due 2010,
(the "Noteholders") entered into a settlement agreement, pursuant to
which the parties reached an agreement with respect to the settlement
of certain issues regarding Xxxx, Xxxx Agriculture and PM Holdings, Old
PMI and their respective estates.
D. On January 18, 2000, the Debtors filed a Joint Plan of Reorganization,
a copy of which is attached hereto as EXHIBIT A (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") embodying, among other things, the terms of the
settlement between Xxxx, Xxxx Agriculture and the Noteholders, as
modified by subsequent negotiations and agreements.
E. Pursuant to the Plan and that certain Agreement and Plan of Merger
dated as of __________, 2000, and concurrent with the effectiveness of
this Agreement, Old PMI has merged with and into PM Holdings (the
"MERGER"). PM Holdings survived the Merger and changed its name to
Purina Xxxxx, Inc.
F. Pursuant to the Plan and in connection with the Merger, Xxxx
Agriculture has agreed to deposit an amount equal to sixty million
dollars ($60,0000,000) into an escrow account (the "ESCROW ACCOUNT").
(i) On the date the Plan becomes effective ("the EFFECTIVE DATE"),
the Escrow Agent shall distribute the Escrow Payment (as
defined herein) to Purina as a contribution
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to capital by Xxxx Agriculture and any Escrow Remainder (as
defined herein) to Xxxx Agriculture (the "EFFECTIVE DATE
DISBURSEMENT").
(ii) If the conditions to the Effective Date as set forth in the
Plan are not satisfied or duly waived as set forth in Article
IX of the Plan, Xxxx Agriculture, in its sole discretion, may
direct the Escrow Agent to return the Escrow Funds (as defined
herein) to Xxxx Agriculture (the "EFFECTIVE DATE FAILURE
DISBURSEMENT").
G. Capitalized words and phrases used herein and not otherwise defined
will have the same meanings as set forth in the Plan.
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. MECHANICS OF THE ESCROW ACCOUNT.
(a) CERTAIN DEFINITIONS.
(i) "ESCROW AMOUNT" shall mean sixty million dollars
($60,000,000).
(ii) "ESCROW FUNDS" shall mean the amount of money in
the Escrow Account at any particular time pursuant to the
terms of this Agreement.
(iii) "ESCROW PAYMENT" shall mean the Escrow Amount
less the distributions required to be made therefrom pursuant
to Section 5(g).
(iv) "ESCROW REMAINDER" shall mean the Escrow Funds
less the Escrow Payment.
(v) "ESCROW ACCOUNT" shall mean the separate account
maintained by the Escrow Agent under the terms of this
Agreement.
(b) ESTABLISHMENT OF ESCROW ACCOUNT AND RECEIPT OF ESCROW
AMOUNT.
(i) Xxxx Agriculture hereby deposits with the Escrow
Agent the Escrow Amount to be held in escrow by the Escrow
Agent. The Escrow Agent accepts said sum and agrees to
establish the Escrow Account therefor in its capacity as
Escrow Agent pursuant to the terms of this Agreement.
(ii) Xxxx Agriculture and Purina shall each execute
and deliver to the Escrow Agent a certificate of incumbency
substantially in the form of Exhibit B hereto for the purpose
of establishing the identity of the representatives
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of Xxxx Agriculture and Purina entitled to issue instructions or
directions to the Escrow Agent on behalf of each such party. In the
event of any change in the identity of such representatives, a new
certificate of incumbency shall be executed and delivered to the Escrow
Agent by the appropriate party. Until such time as the Escrow Agent
shall receive a new incumbency certificate, the Escrow Agent shall be
fully protected in relying without inquiry on any then current
incumbency certificate on file with the Escrow Agent.
(c) INVESTMENT OF ESCROW FUNDS.
(i) The Escrow Agent agrees to invest and reinvest
funds in the Escrow Account, but only upon written instructions signed
by an authorized agent of Xxxx Agriculture, in The One Group
______________ Fund, or other investments as outlined in Exhibit C
hereto.
(ii) The parties recognize and agree that the Escrow
Agent will not provide supervision, recommendations or advice relating
to either the investment of moneys held in the Escrow Account or the
purchase, sale, retention or other disposition of any permitted
investment.
(iii) Interest and other earnings on permitted
investments shall be added to the Escrow Account. Any loss or expense
incurred as a result of an investment will be borne by the Escrow
Account. In the event that the Escrow Agent does not receive directions
to invest funds held in the Escrow Account, the Escrow Agent shall
invest such funds in The One Group Treasury Money Market Fund Class I
or a successor or similar fund.
(iv) The Escrow Agent is hereby authorized to execute
purchases and sales of permitted investments through the facilities of
its own trading or capital markets operations or those of any
affiliated entity. The Escrow Agent shall send statements to each of
the parties hereto on a monthly basis reflecting activity in the Escrow
Account for the preceding month. Although Xxxx Agriculture and Purina
each recognizes that it may obtain a broker confirmation or written
statement containing comparable information at no additional cost, Xxxx
Agriculture and Purina hereby agree that confirmations of permitted
investments are not required to be issued by the Escrow Agent for each
month in which a monthly statement is rendered. No statement need be
rendered for the Escrow Account if no activity occurred for such month.
(v) Xxxx Agriculture and Purina acknowledge and agree
that the delivery of the escrowed property is subject to the sale and
final settlement of permitted investments. Proceeds of a sale of
permitted investments will be delivered on the business day on which
the appropriate instructions are delivered to the Escrow Agent if
received prior to the deadline for same day sale of such permitted
investments. If such instructions are received after the applicable
deadline, proceeds will be delivered on the next succeeding business
day.
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2. EFFECTIVE DATE DISBURSEMENT. On the Effective Date, if any, Xxxx
Agriculture and Purina shall deliver joint written instructions to the Escrow
Agent directing the Escrow Agent to disburse (a) the Escrow Payment to Purina
and (b) the Escrow Remainder to Xxxx Agriculture. The Escrow Agent will make
these disbursements promptly and prior to cancellation of Xxxx Agriculture's
ownership interest in Old PM Holdings.
3. EFFECTIVE DATE FAILURE DISBURSEMENT.
(a) If the conditions to the Effective Date as set forth in
the Plan are not satisfied or duly waived pursuant to Article IX of the Plan,
Xxxx Agriculture, in its sole discretion, may deliver written instructions to
the Escrow Agent directing the release of the Escrow Funds to Xxxx Agriculture.
The Escrow Agent will make this release promptly.
(b) In these written instructions, Xxxx Agriculture will
certify, under penalty of perjury that:
(i) The conditions to the Effective Date of the Plan
have not been satisfied or duly waived in accordance with
Article IX of the Plan; and
(ii) Xxxx Agriculture therefore exercises its right
to recover the Escrow Funds from the Escrow Agent.
(c) A copy of the written instructions to be delivered to the
Escrow Agent pursuant to Sections 3(a) and 3(b) above shall be delivered to
Purina not less than two (2) business days prior to the delivery to the Escrow
Agent.
4. TERMINATION. This Agreement will terminate on the earliest of the
Escrow Agent's receipt of (a) joint written instructions from Xxxx Agriculture
and Purina ordering the disbursement of the Escrow Funds pursuant to Section 2,
( b) written instructions from Xxxx Agriculture ordering the release of the
Escrow Funds pursuant to Section 3 and (c) a certificate signed by Xxxx
Agriculture and Purina stating that this Agreement has been terminated.
5. PARTIES' DUTIES AND LIABILITY.
(a) The duties and obligations of the Escrow Agent shall be
determined solely by the terms of this Agreement. The Escrow Agent shall be
under no obligation to refer to any documents other than this Agreement (and the
Plan for definitional purposes) and shall not have any duties or
responsibilities except as provided in this Agreement. The Escrow Agent shall
not be obligated to recognize, and shall not have any liability or
responsibility arising under, any agreement to which it is not a party,
including, but not limited to, the Plan.
(b) The Escrow Agent shall not be liable to Xxxx Agriculture
or Purina except for its own negligence or willful misconduct. Except with
respect to claims based upon such negligence or willful misconduct that are
successfully asserted against the Escrow Agent, Xxxx Agriculture and Purina
shall jointly indemnify and hold harmless the Escrow Agent and any successor to
the Escrow Agent from and against any and all losses, liabilities, claims,
actions, damages and expenses, including, but not limited to, reasonable
attorneys' fees and
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disbursements, arising out of and in connection with this Agreement. Such
indemnification shall survive the Escrow Agent's resignation or removal, or the
termination of this Agreement.
(c) The Escrow Agent shall have the right to perform any of
its duties hereunder through agents, attorneys, custodians or nominees. Any
banking association or corporation into which the Escrow Agent may be merged,
converted or with which the Escrow Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Escrow Agent
shall be a party, or any banking association or corporation to which all or
substantially all of the corporate trust business of the Escrow Agent shall be
transferred, shall succeed to all the Escrow Agent's rights, obligations and
immunities hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
(d) Xxxx Agriculture and Purina may examine the Escrow Funds
and related records at the Escrow Agent's office during normal business hours.
(e) The Escrow Agent shall not be bound by any succession to
or assignment of the interests in this Agreement by Xxxx Agriculture or Purina
until Xxxx Agriculture or Purina, as applicable, provide the Escrow Agent with
written evidence of such succession or assignment in a form reasonably
satisfactory to the Escrow Agent.
(f) Except as set forth in those sections of this Agreement
which permit the Escrow Agent to act on the independent instructions of Xxxx
Agriculture, the Escrow Agent shall disregard all instructions, notices,
warnings or demands given or made by Xxxx Agriculture, Purina or any other
person, unless the notices, warnings or demands are jointly given or made by
Xxxx Agriculture and Purina. All joint instructions, notices, warnings and
demands may be executed in counterparts.
(g) If a controversy arises between Xxxx Agriculture and
Purina, then the Escrow Agent shall not be required to resolve the controversy
or take any action, and may await resolution of the controversy by joint
instructions from Xxxx Agriculture and Purina or by a final decision by a court
of competent jurisdiction (a "FINAL DECISION"). If the Escrow Agent becomes
involved in arbitration or litigation in connection with this Agreement, it
shall (i) have the right to retain counsel, (ii) have a lien on the Escrow Funds
for any and all reasonable costs, attorneys' fees, charges, disbursements and
expenses in connection with such arbitration or litigation and (iii) be entitled
to reimburse itself for such costs out of the Escrow Funds. If the Escrow Funds
are insufficient for the Escrow Agent to reimburse itself, Xxxx Agriculture and
Purina shall jointly indemnify the Escrow Agent for its reasonable costs,
attorneys' fees, charges, disbursements and expenses in connection with such
arbitration or litigation. If any controversy between Xxxx Agriculture and
Purina is resolved in favor of Xxxx Agriculture and the Escrow Funds are
delivered to Xxxx Agriculture pursuant to Section 3 above, Xxxx Agriculture
shall have an Allowed Administrative Claim against Purina in the amount equal to
the amount of the Escrow Funds utilized to reimburse the Escrow Agent pursuant
to this Section 5(g).
(h) The Escrow Agent does not have any interest in the Escrow
Funds and is serving only as a holder in possession. If any payments of income
attributable to the Escrow Funds are subject to United States tax withholding
regulations, Xxxx Agriculture and Purina shall provide the Escrow Agent with
W-9s and W-8s, as applicable, as well as other appropriate
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Internal Revenue Service forms for and detailed written procedures concerning
the appropriate disbursement or retention of said funds. Xxxx Agriculture shall
be responsible for the payment of any and all taxes imposed in respect of income
attributable to the Escrow Funds. For all tax purposes, Xxxx Agriculture shall
treat any and all disbursements made pursuant to Section 2(a) of this Agreement
as a contribution to the capital of Purina.
(i) The Escrow Agent shall be entitled to rely upon any Final
Decision, certification, demand, notice, instrument or other writing delivered
to it hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. The Escrow Agent may act in reliance on any instrument or
signature reasonably believed by it to be genuine and, if reasonable, may assume
that the person purporting to give receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so. The Escrow Agent may conclusively presume that the
undersigned representative of any party hereto which is an entity other than a
natural person has full power and authority to instruct the Escrow Agent on
behalf of that party unless written notice to the contrary is delivered to the
Escrow Agent.
(j) The Escrow Agent may act pursuant to the advice of
competent outside counsel with respect to any matter relating to this Agreement
and will not be liable for any action taken or omitted by it in good faith in
accordance with such advice.
6. COMPENSATION OF THE ESCROW AGENT. The Escrow Agent shall be entitled
to compensation for its services hereunder in accordance with Exhibit D attached
hereto, which is made a part hereof, and for reimbursement of its out-of-pocket
expenses, including, but not by way of limitation, the fees and costs of
attorneys or agents that the Escrow Agent may find necessary to engage in
performance of its duties hereunder, fifty percent (50%) of which shall be paid
by Purina when due and fifty percent (50%) of which shall be paid by Xxxx
Agriculture when due. The Escrow Agent shall have, and is hereby granted, a
prior lien upon any property, cash or assets of the Escrow Account solely with
respect to its unpaid fees and nonreimbursed expenses, which lien shall be
superior to the interests of any other persons or entities.
7. SUCCESSOR ESCROW AGENT. The Escrow Agent may resign as escrow agent
by giving written notice to Xxxx Agriculture and Purina at least thirty (30)
calendar days in advance of the effective date of its resignation. On the
effective date of any resignation of any Escrow Agent, the Escrow Agent shall
thereafter deliver the Escrow Funds to any successor escrow agent that Xxxx
Agriculture and Purina jointly specify in writing to the Escrow Agent. If such
notice is not received by the Escrow Agent on or before the effective date of
its resignation, the Escrow Agent may deliver the Escrow Funds to any bank,
financial institution or trust company, having an office in the State of
Delaware and having capital, surplus and undivided profits of a total of at
least one hundred million dollars ($100,000,000) and which is willing to assume
the Escrow Agent's obligations under this Agreement. Until the Escrow Agent
delivers the Escrow Funds to a successor escrow agent, the Escrow Agent shall
hold the Escrow Funds in accordance with the terms of this Agreement and shall
comply with all of its obligations hereunder. Xxxx Agriculture and Purina have
the right, at any time and upon their mutual consent, to substitute a new escrow
agent by giving thirty (30) calendar days' prior written notice to the
then-current escrow agent.
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8. MISCELLANEOUS.
(a) All notices, consents, requests, claims, demands,
instructions or other communications to be given hereunder by any party shall be
in writing. All such notices, consents, requests, claims, demands, 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 such notices shall be deemed to be
received as follows: (i) if delivered personally, when received, (ii) if mailed,
three (3) days after being mailed, (iii) if sent by express package service,
when signed for and (iv) if sent by facsimile, when the facsimile has been
transmitted over the telephone lines, as evidenced by a facsimile confirmation
report generated by the transmitting machine. Notices will be addressed as
follows:
(i) if to Xxxx Agriculture, to:
Xxxx 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:
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.
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(iii) if to the Escrow Agent, to:
Bank One Trust Company, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
facsimile: (000) 000-0000
attention: Xxxxxx Xxxxxx, Global Corporate Trust Services
or such other addresses as the parties may have furnished to each other pursuant
to the provisions of this Section.
(b) This Agreement may be executed in one or more
counterparts, all of which taken together will constitute one instrument.
(c) The laws of the State of Delaware will govern the validity
and interpretation of this Agreement and the performance of the parties of their
respective duties and obligations without regard to conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
XXXX AGRICULTURE COMPANY
By:______________________________
Name:____________________________
Title:___________________________
PURINA XXXXX, INC.
By:______________________________
Name:____________________________
Title:___________________________
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as Escrow Agent
By:______________________________
Name:____________________________
Title:___________________________
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EXHIBIT A
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Plan
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EXHIBIT B
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Certificate of Incumbency
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CERTIFICATE OF INCUMBENCY
The undersigned, ____________________, of ______________, hereby
certifies that the following named officers are duly appointed, qualified and
acting in the capacity set forth opposite his/her name, and the following
signature is the true and genuine signature of said officer.
Name Title Signature
----------------- ----------------- ---------------------
----------------- ----------------- ---------------------
Such officers are hereby authorized to furnish the Escrow Agent with
directions relating to any matter concerning this Escrow Agreement and the funds
and/or property held pursuant thereto.
IN WITNESS WHEREOF, ____________________ has caused this Certificate of
Incumbency to be executed by its officer duly authorized this _____ day of
_______, 2000.
XXXX AGRICULTURE COMPANY
By_________________________
Name
Title
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CERTIFICATE OF INCUMBENCY
The undersigned, ____________________, of ______________, hereby
certifies that the following named officers are duly appointed, qualified and
acting in the capacity set forth opposite his/her name, and the following
signature is the true and genuine signature of said officer.
Name Title Signature
----------------- ----------------- ---------------------
----------------- ----------------- ---------------------
Such officers are hereby authorized to furnish the Escrow Agent with
directions relating to any matter concerning this Escrow Agreement and the funds
and/or property held pursuant thereto.
IN WITNESS WHEREOF, ____________________ has caused this Certificate of
Incumbency to be executed by its officer duly authorized this _____ day of
_______, 2000.
PURINA XXXXX, INC.
By____________________________
Name
Title
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EXHIBIT C
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Investment Form
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EXHIBIT D
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Schedule of Escrow Agent Fees
