EXHIBIT 10.14
CONAGRA, INC.
EMPLOYEE EQUITY FUND
TRUST AGREEMENT
THIS AGREEMENT ("Agreement") dated the 6th day of August, 1992, by and
between ConAgra, Inc. ("ConAgra") and Chemical Bank ("Trustee").
RECITALS
A. ConAgra has adopted the plans and obligations (the "Plans") listed on
Supplement One attached hereto, and which is incorporated herein by
this reference.
B. ConAgra wants to establish a trust ("Trust") and to transfer to the
Trust assets which shall be held by the Trust, subject to the claims
of ConAgra's creditors in the event of ConAgra's insolvency, until
distributed according to this Agreement.
C. ConAgra wants to provide assurance of the availability of the shares
of its common stock necessary to satisfy certain of its obligations or
those of its subsidiaries under the Plans.
D. ConAgra wants the assets held in the Trust Fund to be exclusively
securities of ConAgra and, therefore, expressly waives any
diversification of investments that might otherwise be necessary,
appropriate, or required pursuant to applicable provisions of law.
E. The Trust assets shall be used to fund the obligations under the
Plans.
F. ConAgra wants to establish the Trust to further the best interests of
ConAgra by providing reasonable benefits to its employees and former
employees in a cost efficient manner.
AGREEMENT
NOW, THEREFORE, ConAgra and the Trustee hereby establish the Trust and
agree that the Trust shall be held and disposed of as follows:
ARTICLE I
TRUST FUND
1.1 Establishment. Subject to the claims of its creditors as set forth in
Article V, ConAgra hereby establishes with the Trustee a trust to
consist of assets contributed, sold or transferred to the Trustee from
time to time by ConAgra on behalf of the Plans, including any
increments, proceeds, reinvestments and income and investment gains
therefrom (the "Trust Fund"). This Trust shall be known as the
ConAgra, Inc. Employee Equity Fund. ConAgra and the Trustee intend the
Trust to be a separate legal entity.
1.2 Trustee Acceptance. The Trustee hereby accepts this Trust and all of
ConAgra's title and interest in the property transferred to the Trust
and all other property coming into the possession of the Trustee
pursuant to the terms of this Agreement, and the Trustee agrees to
administer and distribute the Trust property and the income according
to the terms and conditions herein.
1.3 Grantor Trust. The Trust is intended to be a grantor trust, within the
meaning of Section 671 of the Code and shall be construed accordingly.
The Trust is intended not to be subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended. Notwithstanding any other provisions of this Agreement to
the contrary, the Trust Fund shall at all times remain subject to the
claims of ConAgra's general creditors.
1.4 Separate Entity. The principal of the Trust Fund and
any earnings thereon shall be held separate and apart from other funds
of ConAgra and shall be used exclusively for the uses and purposes set
forth in the Plans and this Trust. Neither a Trust beneficiary nor the
Plans shall have any preferred claim on, or any beneficial ownership
interest in, any assets of the Trust prior to the time such assets are
distributed as provided in Article IV, and all rights created under the
Plans and this Trust shall be merely unsecured contractual rights of
the Plans and the beneficiaries of this Trust.
1.5 Irrevocability. The Trust shall not be revocable by
ConAgra. This Agreement may be amended at any time by a written
instrument executed by ConAgra and the Trustee, but no amendment shall
be effective to make the Trust revocable, to change the method of
releasing shares under Section 4.2, or to change the method of
allocation under Section 4.3.
ARTICLE II
DEFINITIONS
The following definitions shall apply to the Trust:
2.1 "Board" means the Board of Directors of ConAgra.
2.2 "Change of Control" means, unless the Board approves the transaction
resulting in the Change of Control prior to completion of such
transaction, (i) the acquisition (other than from ConAgra) by any
person, entity or "group," within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act"),
(excluding, for this purpose, ConAgra or its subsidiaries, or any
employee benefit plan of ConAgra or its subsidiaries which acquires
beneficial ownership of voting securities of ConAgra) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either the then outstanding shares of
common stock or the combined voting power of ConAgra's then outstanding
voting securities entitled to vote generally in the election of
directors; or (ii) individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination
for election, by ConAgra's stockholders was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board
shall be, for purposes of this Agreement, considered as though such
person were a member of the Incumbent Board; or (iii) approval of the
stockholders of ConAgra of a reorganization, merger or consolidation,
in each case, with respect to which persons who are the stockholders of
ConAgra immediately prior to such reorganization, merger or
consolidation would not, immediately thereafter, own more than 50% of
the combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's
outstanding voting securities, or of a liquidation or dissolution of
ConAgra or of the sale of all or substantially all of its assets.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
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2.4 "ConAgra Stock" means shares of common stock, $5.00 par value,
issued by ConAgra or any successor securities.
2.5 "Compensation Committee" means the Compensation Committee of the
Board.
2.6 "DC Plan" means the defined contribution plans of ConAgra or its
subsidiaries which are intended to qualify under Section 401(a) of the
Code.
2.7 "Employee Benefits Committee" means the ConAgra Employee Benefits
Committee, which is appointed by the Board to administer certain
ConAgra compensation, incentive and benefits plans.
2.8 "401(k) Plans" means the Plans listed on Supplement One
which are intended to be qualified under Section 401(k) of the Code.
2.9 "Note" means the Revolving Promissory Note of the Trust
to ConAgra, dated August 6, 1992, representing debt of the Trustee used
to purchase ConAgra Stock, or such other notes used for such purposes.
2.10 "Plan" or "Plans" means the Plans and benefit
obligations listed on Supplement One. The Compensation Committee may
add to and delete from Supplement One plans and other benefit
obligations of ConAgra or its subsidiaries, if the Compensation
Committee determines in good faith that such addition or deletion is in
the best interests of a broad cross-section of the employees and/or
former employees of ConAgra or its subsidiaries and, in the case of an
addition, only if the Compensation Committee determines in good faith
that the plan to be added will benefit a similar group of plan
participants as a Plan which it replaces.
2.11 "Trust Year" means each twelve month calendar year, except the
first Trust Year which shall begin on the date first written above and
end on December 31, 1992.
ARTICLE III
FUNDING THE TRUST
3.1 Contributions. Each Trust Year, ConAgra shall
contribute in cash to the Trust Fund an amount which, when added to the
earnings of the Trust Fund for that Trust Year, shall be sufficient to
enable the Trust to make the interest and principal payments on the
Note as they come due. To the extent ConAgra fails to make sufficient
contributions to the Trust Fund pursuant to the preceding sentence, a
corresponding principal amount of the Note shall be deemed forgiven.
Such forgiveness shall be the sole and absolute remedy that the Trust
shall have against ConAgra for any failure of ConAgra to make any
contribution to the Trust. All contributions to the Trust shall be
used to make principal and interest payments on the Note. The Trustee
is not under any duty or obligation to require that ConAgra make any
contributions to the Trust.
3.2 Dividends. Dividends paid in cash on ConAgra Stock
held by the Trust shall be used to repay principal and interest under
the Note as such is due. The Trustee may hold such dividends and
temporarily invest the dividends in accordance with Article VI to the
extent the dividends are not, at the time, needed to pay interest and
principal on the Note.
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ARTICLE IV
CONAGRA STOCK ACCOUNTS AND ALLOCATIONS
4.1 Suspense Account. ConAgra Stock acquired by the Trust
in consideration, in whole or in part, for the Note or for an increase
in principal amount outstanding under the Note, or otherwise shall be
held in a suspense account until released according to provisions of
this Article IV. This account shall be called the Suspense Account and
ConAgra Stock held by the Suspense Account shall be called Suspense
Account Stock.
4.2 Release of ConAgra Stock From Suspense Account. As
soon as practicable after each Note amortization payment, or
prepayment, if any, is made, a number of shares of ConAgra Stock held
in the Suspense Account shall be released from the Suspense Account
("Released Shares"). The total number of shares so released shall
equal the number of shares of ConAgra Stock held in the Suspense
Account immediately prior to the release multiplied by a fraction. The
numerator of the fraction shall be the amount of principal paid by the
Trust on the Note upon such Note amortization payment. The denominator
of the fraction shall be the sum of the numerator plus all principal
amounts payable on the Note for all future amortization payments. For
purposes of this Section 4.2, any forgiveness of all or a portion of
the Note shall be deemed a corresponding payment of principal and
interest on the Note, in accordance with the terms of the Note. No
fractional shares shall be released. If the preceding computation
results in fractional shares, the actual number of shares released
shall be computed by rounding down.
4.3 Allocation of Released Shares. Released Shares shall
be allocated to the Plans in the order the Plans are listed on
Supplement One. The Released Shares shall be allocated at such times
as the Trustee is directed by the Employee Benefits Committee in
accordance with the terms of the respective Plans, but at least once
every calendar year, subject to the condition that no shares will be
allocated if no principal payments are made or forgiven on the Note
during the applicable calendar year. The Employee Benefits Committee
shall notify the Trustee of the amount of ConAgra Stock that must be
transferred to each Plan. The amount of ConAgra Stock so designated by
the Employee Benefits Committee shall be the entire amount which is
then necessary to fund the appropriate benefits then payable under the
specific Plan. The Employee Benefits Committee does not have the
discretion to designate less than the entire amount of ConAgra Stock
needed by a Plan at the time of the allocation of shares. However,
less than the entire amount of ConAgra Stock needed by a Plan may be
allocated to the Plan at the time of the allocation of shares if the
Released Shares are less than needed by the Plan. Released Shares
allocated to the 401(k) Plans shall be transferred to the applicable
401(k) Plan Trustee. Released Shares allocated to Plans other than
401(k) Plans shall be transferred to the Plan Administrator for the
Plan set forth on Supplement One. If Released Shares remain after the
allocation described above, the remaining Released Shares shall be
contributed by the Trustee to trusts established under other DC Plans
or such other plans of ConAgra or its subsidiaries covering a broad
cross section of individuals employed by ConAgra or its subsidiaries as
directed by the Compensation Committee. At no time shall fractional
shares be allocated. If an allocation results in fractional shares,
the actual number of shares allocated shall be computed by rounding
down.
4.4 Rights Regarding ConAgra Stock.
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(a) Voting Rights - The Trustee shall follow the
directions of the 401(k) Plans' participants with respect to the
manner of voting of ConAgra Stock held by the Trust on each matter
brought before an annual or special meeting of stockholders of
ConAgra or any action by written consent of such stockholders in
lieu of a meeting. In connection with any such meeting of
stockholders or action by written consent in lieu of a meeting,
the Trustee shall obtain from the trustees of the 401(k) Plans
("401(k) Plan Trustees") certification of the directions received
by the 401(k) Plan Trustees from the 401(k) Plans participants
directing the 401(k) Plan Trustees whether and how to vote, or act
by written consent with respect to, the ConAgra Stock held by the
401(k) Plans. Upon receipt by the Trustee of such certification
from the 401(k) Plan Trustees, the Trustee shall, on each such
matter, vote, or act by written consent with respect to, the
shares (including fractional shares) of ConAgra Stock held by the
Trust in the same proportion and manner as the 401(k) Plans
participants directed the 401(k) Plan Trustees to do, and the
Trustee shall have no discretion in such matter.
(b) Tender Offer - If a tender or exchange offer is
begun for ConAgra Stock:
(i) The Trustee shall obtain from the 401(k) Plan Trustees
certification of the directions received by the 401(k) Plan
Trustees from the 401(k) Plans participants directing the
401(k) Plan Trustees whether to tender or exchange the
ConAgra Stock held by the 401(k) Plans.
(ii) Upon receipt by the Trustee of such certification from the
401(k) Plan Trustees, the ConAgra Stock held by the Trust
shall be tendered or exchanged, or not tendered or exchanged,
by the Trustee in the aggregate in the same proportion and
manner as the 401(k) Plans participants directed the 401(k)
Plan Trustees with respect to the ConAgra Stock held by the
401(k) Plans.
(c) Confidentiality - All actions taken by 401(k)
Plans participants pursuant to this Section 4.4 shall be held
confidential by the Trustee and the 401(k) Plan Trustees, and
shall not be divulged or released to any person, including
officers and employees of ConAgra and its affiliates.
(d) Trustee Action - The Trustee shall not make any
recommendations regarding the manner of exercising any rights
under this Section 4.4, including whether or not any rights should
be exercised.
4.5 Withholding. The Trustee shall withhold federal and
state taxes, to the extent required, from any payments made in
accordance with the provisions of the applicable law.
ARTICLE V
CONAGRA INSOLVENT
5.1 Insolvent Defined. ConAgra shall be considered
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"Insolvent" for purposes of this Trust Agreement if (i) ConAgra is
unable to pay its debts as they mature, or (ii) ConAgra is subject to a
pending proceeding as a debtor under the provisions of Title 11 of the
United States Code (Bankruptcy Code).
5.2 Effect of Insolvency. At all times during the
continuance of this Trust, the principal and income of the Trust shall
be subject to claims of general creditors of ConAgra. At any time the
Trustee has actual knowledge, or has determined, that ConAgra is
Insolvent, the Trustee shall deliver any undistributed principal and
income in the Trust to satisfy such claims as a court of competent
jurisdiction shall direct. The Board and the chief executive officer
of ConAgra shall inform the Trustee of ConAgra's Insolvency. If
ConAgra or a person claiming to be a creditor of ConAgra alleges in
writing to the Trustee that ConAgra has become Insolvent, the Trustee
shall independently determine, within thirty days after receipt of such
notice, whether ConAgra is Insolvent and, pending such determination,
the Trustee shall discontinue any and all distributions hereunder to
the Plans, shall hold the Trust assets for the benefit of ConAgra's
general creditors, and shall resume such distributions only after the
Trustee has determined that ConAgra is not Insolvent (or is no longer
Insolvent, if the Trustee initially determined ConAgra to be
Insolvent). Unless the Trustee has actual knowledge of ConAgra's
Insolvency, the Trustee shall have no duty to inquire whether ConAgra
is Insolvent. The Trustee may in all events rely on such evidence
concerning ConAgra's solvency as may be furnished to the Trustee which
will give the Trustee a reasonable basis for making a determination
concerning ConAgra's solvency. For purposes of this Trust Agreement,
the Trustee shall be considered to possess any knowledge and
information concerning ConAgra in the possession of Trustee's banking
department or other department, that can reasonably be imputed to
Trustee under normal bank procedures. Nothing in this Trust Agreement
shall in any way diminish any rights of a Trust beneficiary to pursue
his rights as a general creditor of ConAgra with respect to the payment
of benefits. Such beneficiary shall be a general, unsecured creditor
of ConAgra with respect to any payments not made to the beneficiary
because of this Article V.
5.3 Resume Distributions. If the Trustee discontinues
distributions to the Plans pursuant to this Article V and subsequently
resumes such distributions, the first distribution following such
discontinuance shall include the aggregate amount of all distributions
to the Plans which would have been made (together with interest at the
cost of funds of the Trustee on the amount delayed) during the period
of such discontinuance, less the aggregate amount of the payments, if
any, made to the Trust beneficiaries by ConAgra in lieu of the
distributions provided for hereunder during any such period of
discontinuance.
ARTICLE VI
INVESTMENTS
6.1 Investments. The Trustee shall invest and reinvest the
Trust Fund exclusively in ConAgra Stock, including any accretions
thereto resulting from the proceeds of a tender offer, recapitalization
or similar transaction which, if not realized in ConAgra Stock, shall
be reduced to cash as soon as practicable; provided, however, that the
Trustee may invest any portion of the Trust Fund temporarily, pending
investment in ConAgra Stock, (i) in investments in United States
government obligations with maturities of less than one year, (ii)
interest bearing accounts including, but not limited to, certificates
of deposit, time deposits, savings accounts and money market accounts,
with maturities of less than one year, or (iii) a common, collective,
or pooled trust fund maintained by any corporate Trustee
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hereunder whose investments are limited to those described in (i) and
(ii) of this paragraph, in which event such part of the Trust Fund so
transferred shall be subject to all the terms and provisions of the
common, collective, or pooled trust fund which contemplate the
commingling for investment purposes of such trust assets with trust
assets of other trusts.
Notwithstanding the preceding, if the Trustee receives cash or any
asset other than ConAgra Stock in a tender offer to which Section
4.4(b) applies, the Trustee may invest such cash or assets in
investments other than ConAgra Stock.
6.2 Trustee's Duties. The Trustee shall have no duty to
determine or review the merit or suitability of investing the Trust
Fund in ConAgra Stock for the objectives of the Trust, and the Trustee
shall have no liability for actions taken by it in conformity with
Section 6.1.
ARTICLE VII
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions. All such accounts, books
and records shall be open to inspection and audit at all reasonable times by
ConAgra. Within sixty days following the close of each calendar year and
within sixty days after the removal or resignation of a Trustee, the Trustee
shall deliver to ConAgra a written account of its administration of the Trust
during such year or during the period from the close of the last preceding year
to the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales, and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be.
ARTICLE VIII
RESPONSIBILITY AND POWERS OF TRUSTEE
8.1 Duty of Trustee. The Trustee shall act with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character and with like aims;
provided, however, that the Trustee shall incur no liability for any
action taken by the Trustee pursuant to a direction, request, or
approval given by ConAgra, the Board, the Compensation Committee, or
the Employee Benefits Committee, in accordance with the terms of this
Agreement; and provided, further, that the Trustee may invest the Trust
Fund only as provided in Article VI and the Trustee shall incur no
liability by reason of lack of diversification and investment of the
Trust Fund.
8.2 Indemnification of Trustee. ConAgra hereby indemnifies
the Trustee against, and agrees to hold the Trustee harmless from, all
liabilities and claims (including reasonable attorneys' fees and
expenses in defending against such liabilities and claims) against the
Trustee as a result of any breach of fiduciary responsibility by a
fiduciary other than the Trustee unless the Trustee participates
knowingly in such breach, has actual knowledge of such breach and fails
to take reasonable remedial action to remedy such breach or, through
its negligence in performing its own specific fiduciary
responsibilities, has enabled such other fiduciary to commit a breach
of the latter's fiduciary responsibilities.
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ConAgra shall indemnify and hold harmless the Trustee for all claims
against the Trustee for the Trustee's failure to diversify the
investments of the Trust Fund.
8.3 Management and Control of Trust Fund. Subject to the
terms of this Agreement, the Trustee shall have exclusive authority,
discretion and responsibility to manage and control the assets of the
Trust Fund.
8.4 Powers of the Trustee. Without in any way limiting the
powers and discretions conferred upon it by the other provisions of
this Agreement or by law, but subject to Article VI and any other
provisions of this Agreement, the Trustee is expressly authorized and
empowered:
(a) To sell, exchange, convey, transfer or otherwise dispose of any
property held by it by private contract or at public auction, and
no person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition;
(b) To enter into contracts or to make commitments either alone or in
concert with others to sell at any future date any property held
in the Trust Fund or to purchase any property which it may be
authorized to acquire hereunder;
(c) Subject to Section 4.4, to vote upon any stocks, bonds or other
securities; to give general or special proxies or powers of
attorney with or without power of substitution; to exercise any
conversion privileges, subscription rights or other options and to
make any payments incidental thereto; to consent to or otherwise
participate in corporate reorganizations or other changes
affecting corporate securities and to delegate discretionary
powers and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of any
owner with respect to stocks, bonds, securities, or other property
held in the Trust Fund;
(d) To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may
be necessary or appropriate to carry out the powers herein
granted;
(e) To register any investment held in the Trust Fund in its own name
or in the name of a nominee and to hold any investment in bearer
form, or to combine certificates representing such investments
with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or to arrange for the deposit
of such securities in a qualified central depositary even though,
when so deposited, such securities may be merged and held in bulk
in the name of the nominee of such depositary with other
securities deposited therein by any other person, or to deposit or
to arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with
a federal reserve bank, but the books and records of the Trustee
shall at all times show that all such investments are part of the
Trust Fund;
(f) To employ suitable agents, depositaries and counsel, domestic or
foreign, and to charge their reasonable expenses and compensation
to the Trust;
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(g) To borrow money from any source as may be necessary or advisable
to effectuate the purpose of the Trust on such terms and
conditions as the Trustee, in its absolute discretion, may deem
advisable;
(h) To deposit any Trust Funds in interest-bearing accounts maintained
or savings certificates issued by the Trustee, in its separate
corporate capacity, or in any other banking institution affiliated
with the Trustee;
(i) To compromise or otherwise adjust all claims in favor of or
against the Trust;
(j) To maintain cash balances to meet anticipated distributions from,
or administrative expenses of, the Trust Fund without incurring
any obligation to pay interest thereon.
(k) To do all things that the Trustee reasonably deems necessary to
carry out the purposes of this Trust.
ARTICLE IX
COMPENSATION OF TRUSTEE
The Trustee shall be entitled to receive such reasonable compensation for
its services as shall be agreed upon in writing by ConAgra and the Trustee.
Fees not paid by ConAgra directly shall be deducted from the Trust.
ARTICLE X
ACTION BY COMMITTEE
Action with respect to this Trust by the Compensation Committee or the
Employee Benefits Committee shall be taken by approval of at least a majority of
the members of the respective committee and shall be communicated to the Trustee
by the respective committee's chairman, two of its members or its designee or
designees.
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ARTICLE XI
REPLACEMENT OF TRUSTEE
The Trustee may, with 30 days advance written notice, be removed at any
time by ConAgra or may resign, in which case a new trustee shall be appointed by
ConAgra. Any successor trustee appointed by ConAgra must be an independent,
institutional trustee.
ARTICLE XII
AMENDMENT OR TERMINATION
12.1 Amendment. This Agreement may be amended at any time and to any extent
by a written instrument executed by the Trustee and ConAgra, except to
make the Trust revocable, to change the method of releasing shares
under Section 4.2, or to change the method of allocation under
Section 4.3.
12.2 Termination. The Trust shall terminate upon the earliest of (i) August
6, 2022, (ii) when the Trust holds no assets, (iii) when written notice
of termination is given by ConAgra to the Trustee, or (iv) a Change of
Control.
12.3 Effect of Termination. Upon termination of the Trust,
the Trustee shall sell a sufficient amount of ConAgra Stock and other
non-cash assets of the Trust Fund to pay the remaining principal of the
Note and any accrued but unpaid interest thereon. The Compensation
Committee may in good faith direct the Trustee as to the timing and
manner of such sale in order to comply with applicable law and to
avoid, if possible, adverse effects on the publicly traded market price
of ConAgra Stock, but subject in all events to the best interests of
the beneficiaries of the Trust. The proceeds of the sale shall first
be returned to ConAgra, or other holder of the Note, up to the amount
of any principal and interest due on the Note. Subject to the terms of
the Note, and, if applicable, unless and except to the extent that
ConAgra is then prohibited from acquiring such shares of Common Stock
by applicable law or by provisions of its Certificate of Incorporation
or By-Laws or any other contract or instrument to which it is a party,
the Trustee, in its discretion, may upon termination of the Trust
satisfy the Note by transferring to ConAgra, or other holder of the
Note, some or all of the ConAgra Stock held by the Trust, valued for
such purpose at its cost to the Trust; provided, however, that the
Trustee's option so to satisfy the Note upon such termination may only
be exercised in the event that the current market price of ConAgra
Stock is less than its cost to the Trust. Any funds or ConAgra Stock
remaining in the Trust after such payment to ConAgra shall be
distributed (i) first, to the Plans, in the order listed on Supplement
One, in an amount sufficient to pay the total benefits payable under
each such Plan for the current Plan Year, and (ii) second, to the
participants in the various Plans, and/or any other benefit plan in
which a broad cross section of employees of ConAgra and/or its
subsidiaries participate, as the Compensation Committee determines in
good faith, taking into account the best interest of the employees of
ConAgra and/or its subsidiaries.
ARTICLE XIII
SEVERABILITY AND ALIENATION
13.1 Severability. Any provision of this Agreement prohibited by law shall
be ineffective to the extent of any such prohibition without
invalidating the remaining provisions hereof.
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13.2 Anti-Alienation. To the extent permitted by law, benefits to a Trust
beneficiary under this Agreement may not be anticipated, assigned,
alienated or subject to attachment, garnishment, levy, execution or
other legal or equitable process and no benefit actually paid to a
Trust beneficiary by the Trustee shall be subject to any claim for
repayment by ConAgra or the Trustee. This anti-alienation and anti-
assignment prohibition shall include prohibition of assignment and
alienation for alimony and child support.
ARTICLE XIV
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of New York.
IN WITNESS WHEREOF, ConAgra and the Trustee have executed this Agreement on
the dates set forth next to their respective names.
CONAGRA, INC.
BY: /s/ Stephen L. Key 8/6/92
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Name: Stephen L. Key Date
Title: Executive Vice President
and Chief Financial Officer
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CHEMICAL BANK, Trustee
BY: /s/ Vincent S. Conlan 8/6/92
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Name: Vincent S. Conlan Date
Title: Vice President
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SUPPLEMENT ONE
CONAGRA, INC. EMPLOYEE EQUITY FUND
APPLICABLE PLANS
Order of
Allocation Plan Name Plan Administrator
1. ConAgra Retirement Income Savings Plan Employee Benefits Committee
and Trust
2. ConAgra Retirement Income Savings Plan Employee Benefits Committee
and Trust for Hourly Rate Production
Employees
3. Hunt-Wesson Employee Savings Plan Employee Benefits Committee
4. Beatrice Employee Savings Trust Employee Benefits Committee
5. Cheese Hourly Investment Plan Employee Benefits Committee
6. Beatrice Cheese, Inc. Employee Employee Benefits Committee
Savings Plan
7. Golden Valley Microwave Foods Employee Benefits Committee
Retirement Savings Plan
8. Monfort 401(k) Plan Employee Benefits Committee
9. 401(k) Profit Sharing Plan and Trust Employee Benefits Committee
Agreement for E. A. Miller Inc.,
a Utah Corporation
10. Voluntary Investment and Profit Sharing Employee Benefits Committee
Plan for Regular Salaried Employees of
Lamb-Weston, Inc.
11. The Arrow Industries, Inc. Profit Employee Benefits Committee
Sharing Plan
12. ConAgra Long Term Senior Management Compensation Committee
Incentive Plan
13. Employee Flexible Bonus Payment Plan Compensation Committee
14. ConAgra Employee Stock Purchase Plan Compensation Committee
15. ConAgra 1978 Stock Option Plan Compensation Committee
for Non-Senior Management
16. ConAgra 1982 Stock Option Plan Compensation Committee
17. ConAgra 1985 Stock Plan Compensation Committee
18. The ConAgra 1990 Stock Plan Compensation Committee
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19. Golden Valley Incentive Stock Option Compensation Committee
Plan
20. Golden Valley Non-Statutory Stock Compensation Committee
Option Plan
21. Retiree Medical Benefit Plans and Employee Benefits Committee
Obligations for ConAgra and
Subsidiary Employees
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of August 6, 1992,
between ConAgra, Inc., a Delaware corporation ("Seller") and Chemical Bank, a
national banking association, not in its individual or corporate capacity,
but solely in its capacity as trustee (the "Trustee") of the ConAgra, Inc.
Employee Equity Fund (hereinafter sometimes referred to as the "Trust" or the
"Purchaser") under a trust agreement between the Seller and the Trustee dated
as of August 6, 1992 (the "Trust Agreement").
WHEREAS, as contemplated by the Trust Agreement, the Purchaser desires
to purchase, from time to time, from the Seller, and the Seller desires to
sell to the Purchaser, from time to time, shares of the Seller's Common
Stock, $5.00 par value (the "Common Shares") of a value of $700,000,000, all
as more specifically provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale. Subject to the terms and conditions set forth
herein, the Seller will issue and sell to the Purchaser, from time to time,
and the Purchaser will purchase from the Seller, from time to time, up to
$700,000,000 Common Shares pursuant to the procedures set forth in this
Article I.
1.2 New Issuance. Seller shall sell, and Purchaser shall purchase,
Common Shares of a value of $350,000,000 which were previously authorized but
unissued (the "New Shares"). The purchase price for the New Shares shall be
an amount (not less $5.00 per share) equal to the average closing price of
the Common Shares five trading days immediately preceding the "New Share
Closing" (as defined in Section 1.4(a)), all as reported in the Wall Street
Journal. The Purchaser shall pay such purchase price by (i) paying to Seller
at the New Share Closing $5.00 per share by wire transfer of immediately
available funds, and (ii) delivering to Purchaser the Revolving Promissory
Note in the form attached hereto as Exhibit 1 (the "Note").
1.3 Repurchased Shares. The parties acknowledge that Seller purchases,
from time to time, Common Shares on the open market. The Seller shall sell,
and the Purchaser shall purchase, the lesser of 13,000,000 Common Shares or
Common Shares of a value of $350,000,000 of such repurchased Common Shares
(the "Repurchased Shares"). The Seller may defer the sale of Common Shares
pursuant to this Section 1.3 if the Seller reasonably determines that there
is a sufficient legal and/or accounting reason for the Seller to defer the
timing of such sale, but in no event shall the sale price to the Trustee be
higher than the price the Seller paid to acquire the
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shares. Seller shall give notice (the "Sale Notice") to the Purchaser on the
same date that Seller purchases the Common Shares on the open market (or
within 24 hours thereafter). The Sale Notice shall set forth the number of
such Common Shares to be sold to, and purchased by, the Purchaser and the
purchase price to be paid by Purchaser for such shares, which price (herein
the "Repurchased Share Price") shall be the amount paid by Seller for such
shares (excluding, however, all fees, commissions, transfer taxes and other
similar costs incurred in connection with Seller's purchase of such shares).
Such Repurchased Share Price shall be paid by increasing (as of such closing)
the principal amount outstanding under the Note (as defined in Section 1.3)
by an amount equal to the Repurchased Share Price.
1.4 Closing.
(a) New Share Closing. The closing of the sale and purchase of the
New Shares (the "New Share Closing") will be held at the offices of the
Seller at 10:00 a.m., Omaha time, on August 13, 1992, or at such other
time, date and place as may be mutually agreed upon by the Seller and the
Purchaser.
(b) Repurchased Shares Closing. The closing of the sale and purchase
of Repurchased Shares will be held at the offices of the Seller at 10:00
a.m., Omaha time, on the first business day following the date of each and
every Sale Notice, or at such other time, date and place as may be mutually
agreed upon by the Seller and the Purchaser.
1.5 Delivery of Shares. At each closing (or as soon thereafter as
practicable), the Seller will deliver to the Purchaser a certificate
representing the Common Shares sold hereunder, which certificate shall be
registered in the name of the Trustee, or the name of its nominee.
1.6 Seller Records. Seller is hereby authorized to record the
Repurchased Share Price owed by the Purchaser from time to time and all
repayments of the principal of the Note on the schedule attached to the Note.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the purchaser as follows:
2.1 Corporate Existence and Authority. The Seller (a) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (b) has all requisite corporate power to execute, deliver
and perform this Agreement and (c) has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
2.2 No Conflict. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
violate, conflict with or constitute a default under (a) the Seller's
certificate of incorporation or bylaws, (b) any agreement, indenture or other
instrument to which the Seller is a party or by which the Seller or its
assets may be bound or (c) any law, regulation, order, arbitration, award,
judgment or decree applicable to the Seller.
2.3 Validity. This Agreement has been duly executed and delivered by
the Seller and is a valid and binding agreement of the Seller enforceable
against the Seller in accordance with its terms, except as the enforceability
thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity.
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2.4 The Common Shares. The Common Shares have been duly authorized and
when issued as contemplated hereby will be validly issued, fully-paid and
non-assessable shares of the Seller. No stockholder of the Seller has any
preemptive or other subscription right to acquire any shares of Common Stock.
The Seller will convey to the Purchaser, on the date of Closing, good and
valid title to the Common Shares free and clear of any liens, claims,
security interests and encumbrances.
2.5 Litigation. There are no actions, suits, proceedings, arbitrations
or investigations pending or, to the Seller's knowledge, threatened in any
court or before any governmental agency or instrumentality or arbitration
panel or otherwise against or by the Seller which seek to or could restrain,
prohibit, rescind or declare unlawful, or result in substantial damages in
respect of, this Agreement or the performance hereof by the Seller
(including, without limitation, the delivery of the Common Shares).
2.6 Business and Financial Information. Seller has heretofore
delivered to the Purchaser copies of the audited consolidated balance sheets,
statements of stockholders' equity, statements of income and statements of
cash flows of Seller and its subsidiaries as of and for the fiscal years
ending May 31, 1992, and May 26, 1991 (including the related notes and
schedules, the "Seller Financial Statements"). The Seller Financial
Statements fairly present the consolidated results of operations, changes in
stockholders' equity and cash flows for the periods set forth therein and the
consolidated financial position as at the dates thereof of Seller and its
subsidiaries, in accordance with generally accepted accounting principles
consistently applied. Since May 26, 1991, Seller has filed with the
Securities and Exchange Commission all forms, reports and documents required
pursuant to the Securities Act of 1933, as amended (the "1933 Act"), and the
Securities Exchange Act of 1934, as amended (the "1934 Act"), to be filed by
it (the "Disclosure Documents"). At the time filed, all of the Disclosure
Documents complied as to form in all material respects with all applicable
requirements of such Acts. None of the Disclosure Documents, at the time
filed, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
3.1 Authority; Validity. The Purchaser has full power and authority
under the Trust Agreement to execute and deliver this Agreement and the Note
and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly authorized, executed and delivered by the Trustee on
behalf of the Trust and is a valid and binding agreement of the Purchaser
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity. The Note has been duly authorized by the Trustee on behalf of the
Trust and, upon the execution and delivery by the Trustee on behalf of the
Trust, the Note will be a valid and binding agreement of the Purchaser
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity.
3.2 No Conflict. The execution and delivery of this Agreement do not,
and the execution and delivery of the Note and the consummation of the
transactions contemplated hereby and thereby will not, violate, conflict with
or constitute a default under (a) the terms of the Trust,
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(b) any agreement, indenture or other instrument to which the Trust is a
party or by which the Trust or its assets may be bound or subject or (c) to
its knowledge any law, regulation, order, arbitration award, judgment or
decree applicable to the Trust.
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ARTICLE IV
RESTRICTIONS ON DISPOSITION OF THE COMMON SHARES
4.1 Restricted Securities. The Purchaser acknowledges that the
Purchaser is acquiring the Common Shares pursuant to transactions exempt from
registration under the 1933 Act. The Purchaser represents, warrants and
agrees that all Common Shares acquired by the Purchaser pursuant to this
Agreement are being acquired for investment without any intention of making a
distribution thereof, or of making any sale or other disposition thereof
which would be in violation of the 1933 Act or any applicable state
securities law, and that the Purchaser will not dispose of any of the Common
Shares, except that the Trustee will, from time to time, convey a portion of
the Common Shares to the Plan Administrators or trustees of the plans listed
in Supplement One to the Trust Agreement to satisfy the obligations of the
Company thereunder, and except upon termination of the Trust to the extent
that the Trust then holds any Common Shares, all in compliance with all
provisions of applicable federal and state law regulating the issuance, sale
and distribution of securities.
4.2 Legend. Until such time as the Common Shares are registered
pursuant to the provisions of the 1933 Act, any certificate or certificates
representing the Common Shares delivered pursuant to Article I will bear a
legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold, transferred or otherwise disposed of unless they have first
been registered under such Act or unless an exemption from
registration is available."
The Seller may place stop transfer orders against the registration of
transfer of any share evidenced by such a certificate or certificates until
such time as the requirements of the foregoing are satisfied.
4.3 Registration; Listing. In the event that the Trust established
pursuant to the Trust Agreement is terminated and the Trustee is obligated to
dispose of the Common Shares, to the extent the Trustee deems reasonably
necessary, the Seller shall cause the Common Shares to be listed on the New
York Stock Exchange and shall, as promptly as practicable, after written
request by the Trustee, register the Common Shares under the 1933 Act,
prepare for filing at the Seller's expense a registration statement with the
Securities and Exchange Commission sufficient to permit the public offering
of such Common Shares in accordance with the terms of this Agreement, and the
Seller will use its best efforts in all matters necessary to cause such
registration statement to become effective as promptly as practicable and to
remain effective for a reasonable period, all to the extent requisite to
permit the sale or other disposition of such Common Shares. The Seller shall
also use its best efforts to register or qualify the Common Shares so
registered under the securities blue sky laws of such jurisdictions within
the United States as the Trustee may reasonably request.
ARTICLE V
COVENANTS OF SELLER
The Seller agrees that:
5.1 Financial Statements, Reports and Documents. Subsequent to the
first Closing, and for as long as the Common Shares are held by the Trust
(unless the Trustee shall otherwise consent in writing), the Seller shall
deliver to the Trustee each of the following:
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(a) Annual Statements. As soon as available and in any event within
one hundred twenty (120) days after the close of each fiscal year of the
Seller, copies of the consolidated balance sheet of the Seller and its
subsidiaries as of the close of such fiscal year and consolidated
statements of income, statements of stockholders' equity and statements
of cash flow of the Seller and its subsidiaries for such fiscal year, in
each case setting forth in comparative form the figures for the preceding
fiscal year, all in accordance with the generally accepted accounting
principles and accompanied by an opinion thereon of independent public
accountants of recognized national standing.
(b) SEC and Other Reports. Promptly upon their becoming available,
one copy of each financial statement, report, notice or proxy statement
sent by the Seller to stockholders generally and of each regular or
periodic report, registration statement or prospectus (other than any
registration statement on Form S-8 and its related prospectus) filed by
the Seller with the Securities and Exchange Commission or any successor
agency.
The Seller will comply with all federal, state, local and foreign laws,
regulations or orders, and all the rules of any stock exchange or similar
entity which are applicable to it or to the conduct of its business, and,
without limiting the generality of the foregoing, shall make such filings,
distributions and disclosures as are required by the 1933 Act, the 1934 Act
or any of the regulations, rules or orders promulgated thereunder, insofar as
the failure to comply would materially and adversely affect the Company and
its subsidiaries taken as a whole.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions to Obligations of the Purchaser. The obligation of the
Purchaser to purchase the Common Shares is subject to the satisfaction of the
following conditions on the date of each Closing:
(a) If the purchase relates to Repurchased Shares, the Purchaser
shall have received the Sale Notice described in Section 1.3;
(b) The representations and warranties of the Seller set forth in
Article II hereof shall be true and correct on such Closing Date; and
(c) All permits, approvals, authorizations and consents of third
parties necessary for the consummation of the transactions herein shall
have been obtained, and no order of any court or administrative agency
shall be in effect which restrains or prohibits the transactions
contemplated by this Agreement.
6.2 Conditions to Obligations of the Seller. The obligation of the
Seller to issue, sell and deliver the Common Shares to the Purchaser is
subject to the satisfaction of the following conditions on the date of
Closing:
(a) If the purchase relates to the Repurchased Shares, the Seller
shall have delivered to Purchaser the Sale Notice;
(b) The representations and warranties of the Purchaser set forth in
Article III hereof shall be true and correct on such Closing Date; and
(c) No order of any court or administrative agency shall be in effect
which restrains or prohibits the transactions contemplated by this
Agreement.
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ARTICLE VII
MISCELLANEOUS
7.1 Expenses. The Seller shall pay all of its expenses, and it shall
pay the Purchaser's expenses, in connection with the authorization,
preparation, execution and performance of this Agreement, including without
limitation the reasonable fees and expenses of the Trustee, its agents,
representatives, counsel, financial advisors and consultants.
7.2 Survival of Seller's Representations and Warranties. All
representations and warranties made by the Seller to the Purchaser in this
Agreement shall survive the Closing.
7.3 Notices. All notices, requests, or other communications required
or permitted to be delivered hereunder shall be in writing, delivered by
registered or certified mail, return receipt requested, or by fax as follows:
(a) To the Seller:
ConAgra, Inc.
One ConAgra Drive
Omaha, NE 68102
Fax Number: (402) 595-4438
Attn: Corporate Secretary
(b) To the Purchaser:
Chemical Bank
450 West 33rd Street
New York, NY 10001-2697
Fax Number: (212) 613-7118
Any party hereto may from time to time, by written notice given as aforesaid,
designate any other address to which notices, requests or other
communications addressed to it shall be sent.
7.4 Specific Performance. The parties hereto acknowledge that damages
would be an inadequate remedy for any breach of the provisions of this
Agreement and agree that the obligations of the parties hereunder shall be
specifically enforceable, and neither party will take any action to impede
the other from seeking to enforce such rights of specific performance.
7.5 Successors and Assigns; Integration; Assignment. This Agreement
shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective legal representatives, successors and
assigns. This Agreement (a) constitutes, together with the Note, the Trust
Agreement and any other written agreements between the Purchaser and the
Seller executed and delivered on the date hereof, the entire agreement
between the parties hereto and supersedes all other prior agreements and
understandings, both written and oral, among the parties, with respect to the
subject matter hereof, (b) shall not confer upon any person other than the
parties hereto any rights or remedies hereunder and (c) shall not be
assignable by operation of law or otherwise, except that the Trustee may
assign all its rights hereunder to any corporation or other institution
exercising trust powers in connection with any such institution assuming the
duties of a trustee under the Trust.
7.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
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7.7 Further Assurances. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement.
7.8 Amendment and Waiver. No amendment or waiver of any provision of
this Agreement or consent to departure therefrom shall be effective unless in
writing and signed by the Purchaser and the Seller.
7.9 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the signatures thereto were upon one
instrument.
7.10 Certain Limitations. The execution, delivery and performance by
the Trustee of this Agreement have been, and will be, effected by the Trustee
solely in its capacity as Trustee under the terms of the Trust and not in its
individual or corporate capacity. Nothing in this Agreement shall be
interpreted to increase, decrease or modify in any manner any liability of
the Trustee to the Seller or to any trustee, representative or other claimant
by right of the Seller resulting from the Trustee's performance of its duties
under the constituent instruments of the Trust, and no personal or corporate
liability shall be asserted or enforceable against the Trustee by reason of
any of the covenants, statements or representations contained in this
Agreement.
7.11 Incorporation. The terms and conditions of the Trust Agreement
relating to the nature of the responsibilities of the Trustee and the
indemnification of the Trustee by the Seller are incorporated herein by
reference and made applicable to this Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement on
the date and year first above written.
CONAGRA, INC.
By:
Name: Stephen L. Key
Title: Executive Vice President
and Chief Financial Officer
CHEMICAL BANK, as Trustee
By:
Name:
Title:
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REVOLVING PROMISSORY NOTE
Omaha, Nebraska August 6, 1992
FOR VALUE RECEIVED, the undersigned, Chemical Bank, a national banking
association, solely in its capacity as Trustee of the ConAgra, Inc. Employee
Equity Fund (the "Trust") hereby promises on behalf of the Trust to pay to
the order of ConAgra, Inc., a Delaware corporation (the "Company"), at the
principal offices of the Company, $350,000,000 less the cash payment made
pursuant to Section 1.2 of that certain Stock Purchase Agreement dated as of
August 6, 1992 between the Trust and the Company (the "Purchase Agreement"),
plus the aggregate unpaid Repurchased Share Price outstanding from time to
time pursuant to the Purchase Agreement together with interest thereon at the
rate and the dates hereinafter set forth.
Interest shall be paid (computed on the basis of a 360-day year of
twelve 30-day months) on the unpaid principal balance, at an interest rate
(the "Interest Rate") of 7.75% per annum. Interest shall accrue from the
date hereof on the unpaid balance, but no interest or principal payments are
required until all of the Repurchased Shares are purchased by the Trust
pursuant to Section 1.3 of the Purchase Agreement. If all such shares are
purchased by the Trust before August 6, 1993, the principal amount will be
paid based upon a thirty year amortization schedule with equal quarterly
payments paid over the thirty year period beginning on the last day of such
purchase by the Trust ("Last Purchase Date"). Such payments shall be made
each March 5th, June 5th, September 5th and December 5th ("Payment Date"),
with the first payment due on the Payment Date immediately following the Last
Purchase Date. The first payment shall include an additional payment for
interest for the period between August 6, 1992 and the Last Purchase Date.
However, if all such shares are not purchased before August 6, 1993, payments
shall begin on September 5, 1993 in equal quarterly payments paid over a
thirty year amortization period with payments made each March 5, June 5,
September 5 and December 5. In such event, additional principal shall be
added for subsequent purchases with an adjustment to the amount of the
payments to retain the original amortization period. Notwithstanding the
preceding, this Note may be prepaid in whole or in part at any time without
penalty. Whenever any payment falls due on a Saturday, Sunday or public
holiday, such payment shall be made on the next succeeding business day.
Upon termination of the Trust, the entire unpaid balance of principal and
interest shall be immediately payable.
The Company shall, and is hereby authorized to, record on the schedule
attached hereto as Exhibit 1, or to otherwise record in accordance with its
usual practice, the date and amount of any increase in the principal amount
of Repurchased Share Price outstanding hereunder, and the date and amount of
each principal payment, provided, however, that failure to do so shall not
affect the Trust's obligation to pay amounts due hereunder.
All payments received hereunder shall be applied in following order:
first, to the payment of any costs (including attorney fees) incurred by the
holder hereof in collection of any amounts hereunder; second, to the payment
of accrued but unpaid interest; and third, to the payment of the principal
amount outstanding.
This Note shall be governed and construed under the laws of the State of
New York.
The undersigned represents and warrants that the indebtedness
represented by this Note was incurred for the purpose of purchasing shares of
common stock, $5.00 par value, of the Company.
The Trust hereby waives presentment, demand, protest and notice of
dishonor.
This Note is issued by the Trust pursuant to the Trust Agreement and is
entitled to the benefits thereof. The Trustee is executing this Note solely
in its capacity as trustee under the Trust
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Agreement. The Trustee shall have no liability or obligation of any kind in
its individual capacity to the Company or its successors as a result of the
execution or issuance of this Note.
All payments of principal and interest in respect of this Note shall be
made in transferable United States dollars in immediately available funds to
the order of the holder hereof by wire transfer to such account at such
financial institution as may be specified from time to time by the holder
hereof to the Trustee in writing.
Any failure of the holder to exercise any right, remedy or recourse
shall not be deemed a waiver or release of same, such waiver or release or
any other modification of any such right, remedy or recourse to be effective
only if set forth in a written document executed by the holder and then only
to the extent specifically recited therein. A waiver or release with
reference to one event shall not be construed as continuing, as a bar to or
as a waiver or release of any subsequent event. The acceptance by the holder
of payment hereunder that is less than payment in full of all amounts due and
payable at the time of such payment shall not constitute a waiver of the
right to exercise any right, remedy or recourse at that time or at any
subsequent time, or nullify any prior exercise of any such right, remedy or
recourse without the express written consent of the holder.
Subject to the provisions hereof, and to the extent not inconsistent
with applicable law, in the event of default hereunder, the Trust agrees to
pay all reasonable costs of collection hereof when billed therefor, including
reasonable attorneys' fees, whether or not any action shall be instituted to
enforce this Note.
CHEMICAL BANK, as Trustee
By: /s/ John J. McSherry
----------------------
Name: John J. McSherry
Title: Vice President
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EXHIBIT 1
Revolving Promissory Note
Schedule of Payments and
Amounts Outstanding
Date of Total
Increase of Principal
Principal Amount of Date of Amount of Amount
Outstanding Increase Payment Payment Outstanding
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