ESCROW AGREEMENT dated as of May 9, 2000,
among BERRY PLASTICS CORPORATION, a Delaware
corporation (the "PARENT"), POLY-SEAL
CORPORATION, a Delaware corporation (the
"COMPANY"), MICHAEL C. LARNED AND MICHAEL D. DE
MILT (the "SHAREHOLDER PARTY REPRESENTATIVES"),
the trusts and individuals identified in the
signature pages hereto as shareholder parties
(the "SHAREHOLDER PARTIES") and OLD NATIONAL
TRUST COMPANY (the "ESCROW AGENT").
This Escrow Agreement is being executed in accordance with Section
1.10 of the Agreement and Plan of Merger dated as of May 5, 2000 (the "MERGER
AGREEMENT"), among the Parent, the Company, Berry Plastics Acquisition
Corporation and the Shareholder Parties. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Merger
Agreement.
In consideration of the mutual covenants contained herein and in the
Merger Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. APPOINTMENT OF ESCROW AGENT. The Escrow Agent is hereby
appointed to act as escrow agent hereunder, and the Escrow Agent agrees to act
as such.
Section 2. ESCROW FUND AND ESCROW ACCOUNT.
(a). On the date hereof, the Parent is delivering to the Escrow Agent
by wire transfer of immediately available funds the following sums: $1,200,000
(the "ESCROW HOLDBACK AMOUNT"), $50,421,017.70 (the "SHAREHOLDER PAYMENTS
ESCROW AMOUNT"), $544,523.43 (the "ESTIMATED ADJUSTMENT AMOUNT"), $200,000 (the
"Escrow Expense Amount"), and $0.00 (the "Escrow Tax Amount"), and the Escrow
Agent is accepting such sums for deposit in escrow pursuant to the provisions
of this Escrow Agreement. The Escrow Holdback Amount (and additions thereto
pursuant to Section 2(c)), the Shareholder Payments Escrow Amount, the
Estimated Adjustment Amount, the Escrow Expense Amount and the Escrow Tax
Amount (and additions thereto pursuant to Section 2(d)) and interest earned
thereon or proceeds derived therefrom, if any, are referred to herein as the
"ESCROW HOLDBACK FUND," the "SHAREHOLDER PAYMENTS ESCROW FUND", the "ESTIMATED
ADJUSTMENT FUND", the "ESCROW EXPENSE FUND" and the "ESCROW TAX
FUND,"respectively, and are collectively referred to herein as the "ESCROW
FUNDS".
(b). The Escrow Agent shall establish segregated accounts (the "ESCROW
HOLDBACK ACCOUNT," the "SHAREHOLDER PAYMENTS ESCROW ACCOUNT," the "ESTIMATED
ADJUSTMENT AMOUNT ACCOUNT," the "ESCROW EXPENSE ACCOUNT" and, upon receipt of
any funds pursuant to Section 2(d) for deposit into the Escrow Tax Fund, the
"ESCROW TAX ACCOUNT"), at its office located at its address set forth in
Section 10 hereof in which to hold the Escrow Funds and any securities in which
the Escrow Funds may, from time to time, be invested. The Escrow Agent shall
keep appropriate records to reflect the current value from time to time of each
Escrow Fund, including
appropriate adjustments for disbursements and income earned or losses incurred
in respect thereof.
(c). Pursuant to Section 1.8(f) of the Merger Agreement, the
Shareholders may, from time to time, deliver additional funds to the Escrow
Agent as additions to the Escrow Holdback Amount and for deposit into the
Escrow Holdback Account pursuant to the provisions of this Escrow Agreement.
The Escrow Agent shall accept such funds pursuant to the provisions of this
Escrow Agreement.
(d). Pursuant to Section 4.11 of the Merger Agreement, the Company may,
from time to time, deliver additional funds to the Escrow Agent for deposit
into the Escrow Tax Account. The Escrow Agent shall accept such funds pursuant
to the provisions of this Escrow Agreement.
Section 3. INVESTMENTS.
(a). The Escrow Agent will invest the Escrow Funds in such Permitted
Investments (as hereinafter defined) as directed by the Shareholder Party
Representatives from time to time pursuant to written instructions signed by
the Shareholder Party Representatives and referencing the desired Permitted
Investments and the maturity date thereof. As used in this Escrow Agreement,
"PERMITTED INVESTMENTS" means any of the following:
i) direct obligations of, or obligations fully guaranteed by,
the United States of America or any agency thereof;
ii) bonds, debentures, notes or other evidence of indebtedness
issued by any of the following agencies: Federal Farm Credit System;
Federal Home Loan Bank System; Export-Import Bank of the United States;
Federal National Mortgage Association; Government National Mortgage
Association; Federal Financing Bank; or any agency or instrumentality of
the Federal government which shall be established for the purpose of
acquiring the obligations of any of the foregoing or otherwise providing
financing therefor;
iii) direct and general obligations of, or obligations
unconditionally guaranteed by, any state of the United States or political
subdivision of such state, but only if (A) such obligations or guarantees
are entitled to the full faith and credit of such state or political
subdivision of such state, respectively, and such obligations provide that
the state or political subdivision has the obligation to repay, in full
and on a timely basis, such obligations, and (B) at the time of their
purchase under this Escrow Agreement, such obligations are rated in any of
the two highest rating categories by a nationally recognized bond rating
service;
iv) certificates of deposit, whether negotiable or non-
negotiable, of any bank, trust company or national banking association,
provided that such certificates of deposit shall be (A) issued by a bank,
trust company or national banking association having capital stock and
surplus of more than $500,000,000, (B) fully insured by the Federal
Deposit Insurance Corporation or (C) fully and continuously secured by
direct obligations of, or obligations unconditionally guaranteed by, the
United States of
2
America, which (1) shall have a market value (exclusive
of accrued interest) at all times at least equal to the principal amount
of such certificates of deposit, (2) shall be lodged with the Escrow Agent
(or any correspondent bank or trust company designated by the Escrow
Agent), as custodian, by the bank, trust company or national banking
association issuing such certificate of deposit, and (3) the bank, trust
company or national banking association issuing each certificate of
deposit required to be so secured shall furnish the Escrow Agent with an
undertaking satisfactory to it that the aggregate market value of such
obligations securing each such certificate of deposit will at all times be
an amount equal to the principal amount of each such certificate of
deposit (and the Escrow Agent shall be entitled to rely on each such
undertaking);
v) a readily redeemable interest bearing "money market account"
sponsored by a bank described in clause (iv)(A) above and having on the
date of such investment total assets of at least $1,000,000,000; any
repurchase agreement with any bank or trust company organized under the
laws of any state of the United States or any national banking association
or any government securities dealer which is listed as reporting to the
market statistics division of the Federal Reserve Bank of New York secured
by any one or more of the securities described in clauses (i) or (ii)
above;
vi) readily marketable commercial paper of corporations doing
business in and incorporated under the laws of the United States of
America or any state thereof or of any corporation that is the holding
company for a bank described in clause (iv)(A) above given on the date of
such investment a credit rating of at least P-1 by Moody's Investors
Service, Inc. or A-1 by Standard & Poor's Corporation, in each case due
within 90 days after the date of the making of the investment; and
vii) a readily redeemable "money market mutual fund" sponsored by
a bank described in clause (iv) (A) above, or a registered broker or
dealer described in clause (vi) above, that has and maintains an
investment policy limiting its investments primarily to instruments of the
types described in clauses (i) through (vii) above and having on the date
of such investment total assets of at least $1,000,000,000.
(b). Maturities or unexpired terms of maturities of instruments in
which the Escrow Fund is invested shall not exceed 90 days. The Escrow Agent
is authorized to sell such investments as may be required to make any payment
under this Escrow Agreement, and the Escrow Agent shall not be liable for any
loss due to early redemption. In the event that no such written instructions
are given by the Parent and the Shareholder Party Representatives as to any
uninvested portion of the Escrow Funds, such portion shall be invested by the
Escrow Agent in commercial paper for a 30-day period given on the date of such
investment a credit rating of at least P-1 by Moody's Investors Service, Inc.
or A-1 by the Standard & Poor's Corporation; PROVIDED, HOWEVER, that if such
period is not available, such portion shall be invested for the closest period
of shorter duration.
Section 4. RIGHTS TO ESCROW FUNDS.
(a). The Escrow Funds shall be for the exclusive benefit of the Buyer
Group and/or the Shareholders, as the case may be, and their respective
successors, assigns, heirs,
3
administrators and estates, and no other person or
entity shall have any right, title or interest therein. Any claim of any
person to the Escrow Funds, or any part thereof, shall be subject and
subordinate to the prior right thereto of the Buyer Group and/or the
Shareholders, as the case may be.
(b). It is the intent of the Buyer Group and the Shareholders that each
of their respective interests in the Escrow Funds is merely a contingent right
to payment from the Escrow Funds, and that neither a voluntary or involuntary
case under any applicable bankruptcy, insolvency or similar law nor the
appointment of a receiver, trustee, custodian or similar official in respect of
any member of the Buyer Group or any Shareholder (any of which is referred to
herein as a "BANKRUPTCY EVENT") shall increase its respective interest in the
Escrow Funds or affect, modify, convert or otherwise change the contingent
nature of its respective right to payment from the Escrow Funds in accordance
with the terms of this Escrow Agreement. Accordingly, in order to assure the
foregoing result even if it is determined by a court of competent jurisdiction
(whether or not in connection with a Bankruptcy Event) that the Parent or any
Shareholder has an interest in any of the Escrow Funds that is greater than a
contingent right of payment from the Escrow Fund payable in accordance with the
provisions hereof, the parties agree as follows:
(i) The Parent and the Company hereby grant (effective as of the
date hereof) to the Shareholders a first priority security interest in,
and hereby pledges and assigns to the Shareholders, all of its right,
title and interest in each Escrow Fund to secure the Shareholders' rights
and the obligations of the Parent and the Company hereunder. The Escrow
Agent hereby agrees to act as bailee and possessory agent on behalf of the
Shareholders in respect of the Shareholders' security interest in the
rights of the Parent and the Company to the Escrow Funds. The Escrow
Agent shall, upon receipt of indemnification satisfactory to it from the
Shareholders for its fees and expenses incurred in connection with taking
such actions, take all actions as may be reasonably requested in writing
of it by the Shareholders to further perfect or maintain the security
interest created by the Parent and the Company hereunder in the Escrow
Funds. Such security interest shall automatically be released with
respect to any funds properly distributed from the Escrow Funds pursuant
to the terms of this Escrow Agreement; and
(ii) Each Shareholder hereby grants (effective as of the date
hereof) to the Parent and the Company a first priority security interest
in, and hereby pledges and assigns to the Parent and the Company, all of
his respective right, title and interest in each Escrow Fund to secure the
rights and such Shareholder's obligations hereunder. The Escrow Agent
hereby agrees to act as bailee and possessory agent on behalf of the
Parent and the Company in respect of the security interest of the Parent
and the Company in the Shareholders' rights to the Escrow Funds. The
Escrow Agent shall, upon receipt of indemnification satisfactory to it
from the Parent and the Company for its fees and expenses incurred in
connection with taking such actions, take all actions as may be reasonably
requested in writing of it by the Parent and the Company to further
perfect or maintain the security interest created by each Shareholder
hereunder in the Escrow Funds. Such security interest shall automatically
be released with respect to any funds properly distributed from the Escrow
Fund pursuant to the terms of this Escrow Agreement.
4
(c). The parties hereto agree and acknowledge that the establishment
and maintenance of the Escrow Funds hereunder is intended to constitute
possession of the Escrow Funds for the purposes of perfecting the security
interests therein created by this Section 4.
Section 5. SURRENDER OF CERTIFICATES; PAYMENTS FOR SURRENDERED
CERTIFICATES FROM THE SHAREHOLDER PAYMENTS ESCROW ACCOUNT
(a). The Escrow Agent agrees to accept certificates representing shares
of Outstanding Company Common Stock (the "SHARES") surrendered to the Escrow
Agent and to make payments for such surrendered Shares in accordance with the
provisions of this Section 5.
(b). On or promptly after the date hereof, it is intended that the
Company will mail to each Shareholder who is not a Shareholder Party a notice
of merger and appraisal rights which will include, among other things, a Letter
of Transmittal (in the form attached hereto as EXHIBIT A, instructing such
Shareholders to complete and return the Letter of Transmittal to the Escrow
Agent. EXHIBIT B hereto sets forth a list of all Shareholders (including the
Shareholder Parties), showing the number of Shares held by each such
Shareholder, the Applicable Percentage of each such Shareholder and the
certificates (giving certificate numbers) representing such Shares.
(c). The Escrow Agent agrees to examine the Letters of Transmittal,
certificates representing Shares and other documents delivered or mailed to the
Escrow Agent by or for Shareholders, in order to ascertain, to the extent
reasonably determinable by the Escrow Agent, whether:
(i) The Letters of Transmittal appear to be duly executed and
properly completed in accordance with the instructions set forth therein;
(ii) the certificates for the Shares appear to be properly
surrendered;
(iii) the other documents, if any, used in connection with the
surrender of the Shares appear to be duly executed and properly completed
and in the proper form; and
(iv) the certificates for Shares are free of restrictions on
transfer or stop orders.
(d). In the event that the Escrow Agent ascertains that any Letter of
Transmittal or other document has been improperly completed or executed, that
any of the certificates for Shares are not in proper form or some other
irregularity exits, the Escrow Agent shall attempt to resolve promptly the
irregularity and may use its best efforts to contact the appropriate
Shareholder by whatever means of communication it deems most expedient in order
to correct the irregularity. If the Escrow Agent is unable to correct such
irregularity, it shall contact the Company for further instructions.
(e). As soon as practicable after surrender to the Escrow Agent of all
certificates for Shares registered to a particular Shareholder of record (and
only after surrender of all such certificates) and the return of a properly
completed and signed Letter of Transmittal relating thereto, the Escrow Agent
shall pay from the Shareholder Payments Escrow Account, to such
5
Shareholder, in the manner provided in Section 10, such Shareholder's
Applicable Percentage of the Shareholder Payments Escrow Amount, together
with such Shareholder(s)Applicable Percentage of the interest accrued thereon
and proceeds derived in the Shareholder Payments Escrow Account on such amount
from the Closing Date to the date of such payment.
(f). The Escrow Agent shall arrange to comply with all requirements
under the Tax laws of the United States, including those relating to missing
Tax Identification Numbers, and shall file any appropriate reports with the
Internal Revenue 6Service (including without limitation, Forms 1099 and 1099B).
The Escrow Agent may be required to deduct 31% from cash paid to holders who
have not supplied their correct Taxpayer Identification Number or required
certification. Such funds will be turned over to the IRS by the Escrow Agent.
(g). Letters of Transmittal and telegrams, facsimile transmissions and
other materials submitted to the Escrow Agent shall be preserved by the Escrow
Agent until delivered to or otherwise disposed of in accordance with the
instructions of the Company at or prior to the termination hereof.
(h). The Escrow Agent will keep and maintain complete and accurate
ledgers showing all shares surrendered and payments made therefor, and will
make such ledgers available to the Parent, the Company and the Shareholder
Party Representatives upon request.
(i). All certificates for Shares surrendered to the Escrow Agent shall
be retained by the Escrow Agent and following payment therefor shall be
forwarded to the Company, or elsewhere as directed by the Company.
(j). Upon receipt of New York State Stock Transfer Tax stamps from the
Company, the Escrow Agent shall affix such stamps to certificates for shares
surrendered in accordance with the instructions of the Company.
Section 6. CLAIMS; PAYMENTS FROM THE ESCROW HOLDBACK ACCOUNT AND THE
ESTIMATED ADJUSTMENT AMOUNT ACCOUNT.
(a) (i)In the event any member of the Buyer Group asserts a claim for
indemnification or satisfaction of Adjustment Amounts under the Merger
Agreement, the Parent shall execute and deliver to the Escrow Agent and the
Shareholder Party Representatives a written notice to such effect (a "PURCHASER
CLAIM NOTICE"; and the claim being asserted in a Purchaser Claim Notice being
hereinafter referred to as a "PURCHASER CLAIM") setting forth the nature and
details of such Purchaser Claim and the amount thereof (or if not
ascertainable, a reasonable maximum amount thereof), describing in reasonable
detail the basis of the Shareholder Parties' liability therefor under the
Merger Agreement, and instructing the Escrow Agent to deliver, not sooner than
15 days from receipt of the Purchaser Claim Notice, the portion of the Escrow
Holdback Fund specified in the Purchaser Claim Notice and in the aggregate
equal to the amount of the Purchaser Claim (or, if the amount of the Purchaser
Claim to be satisfied from the Escrow Holdback Fund shall be greater than the
balance of such Fund, such remaining balance or balances, as the case may be)
to the Parent or such other member of the Buyer Group as the Parent may direct
in the Purchaser Claim Notice.
6
(ii) The Shareholder Party Representatives may object to any
Purchaser Claim Notice by delivering to the Parent and the Escrow Agent, within
14 days after receipt of the Purchaser Claim Notice, a written notice (a
"SHAREHOLDER PARTY OBJECTION NOTICE") stating that all or a portion of the
amount specified in such Purchaser Claim Notice should not be released to the
Parent or such other member of the Buyer Group. The Parent shall deliver to
the Shareholder Party Representatives a copy of each Purchaser Claim Notice on
or prior to the date of the delivery thereof to the Escrow Agent, and the
Escrow Agent shall also deliver a copy thereof to the Shareholder Party
Representatives promptly after receipt (provided that the failure of the
Escrow Agent to make such delivery to the Shareholder Party Representatives
shall not affect the obligation of the Escrow Agent to release funds pursuant
to Section 7(a)(ii) below). The Shareholder Party Representatives shall
deliver to the Parent a copy of each Shareholder Party Objection Notice on or
prior to the date of the delivery thereof to the Escrow Agent, and the Escrow
Agent shall also deliver a copy thereof to the Parent promptly after receipt
from the Shareholder Party Representatives.
(b) (i)In the event that either of the Shareholder Party
Representatives asserts a claim for Shareholder Adjustment Amounts under the
Merger Agreement, such person shall execute and deliver to the Escrow Agent and
the Parent a written notice to such effect (a "SHAREHOLDER PARTY REPRESENTATIVE
CLAIM NOTICE"; and the claim being asserted in a Shareholder Party
Representative Claim Notice being hereinafter referred to as a "SHAREHOLDER
PARTY REPRESENTATIVE CLAIM") setting forth in reasonable detail the nature and
details of such Shareholder Party Representative Claim and the amount thereof
(or if not ascertainable, a reasonable maximum amount thereof) and instructing
the Escrow Agent to deliver, not sooner than 15 days from receipt of the
Shareholder Party Representative Claim Notice, that portion of the Estimated
Adjustment Fund as shall equal the amount of the Shareholder Party
Representative Claim (or, if the amount of the Claim shall be greater than the
Estimated Adjustment Fund the balance of the Estimated Adjustment Fund) to the
Shareholders, in accordance with their respective Applicable Percentages in the
manner provided in Section 10; PROVIDED, HOWEVER, that no amount shall be so
released to any Shareholder that has not surrendered all certificates for
Shares registered in the name of such Shareholder as contemplated in Section 5
(each a "NONRESPONDING SHAREHOLDER") unless and until such Shareholder has
effected such surrender.
(ii) The Parent may object to any Shareholder Party Representative
Claim Notice by delivering to the Shareholder Party Representatives and the
Escrow Agent, within 14 days after receipt of the Shareholder Party
Representative Claim Notice, a written notice (a "PARENT OBJECTION NOTICE")
stating that all or a portion of the amount specified in such Shareholder Party
Representative Claim Notice should not be released to the Shareholder Party
Representatives. The Shareholder Party Representatives shall deliver to the
Parent a copy of each Shareholder Party Representative Claim Notice on or prior
to the date of the delivery thereof to the Escrow Agent, and the Escrow Agent
shall also deliver a copy thereof to the Parent promptly after receipt
(provided that the failure of the Escrow Agent to make such delivery to the
Parent shall not affect the obligation of the Escrow Agent to release funds
pursuant to Section 7(a)(iii) below). The Parent shall deliver to the
Shareholder Party Representatives a copy of each Parent Objection Notice on or
prior to the date of the delivery thereof to the Escrow Agent, and the Escrow
Agent shall also deliver a copy thereof to the Shareholder Party
Representatives promptly after receipt from the Parent.
7
Section 7. PAYMENTS FROM ESCROW EXPENSE FUND.
From time to time until the date that is sixteen months following the
date hereof, the Shareholder Party Representatives may deliver to the Escrow
Agent requests for funds from the Escrow Expense Account to pay, or reimburse
the Shareholder Party Representatives for, (i) expenses, fees, costs and other
amounts paid or incurred by the Shareholder Party Representatives in connection
with the performance of any of their duties and responsibilities under, or the
taking of any action which they are required or permitted to take pursuant to,
the Merger Agreement or this Escrow Agreement (including, but without
limitation, the retention of independent accountants in connection with the
finalization for the Closing Date Balance Sheet and the Statement) and (ii)
fees to the Shareholder Party Representatives not to exceed $1,000 per month
per Shareholder Party Representative. The Escrow Agent shall be fully entitled
to rely on any such request and shall not be required to verify or otherwise
determine the accuracy thereof or the reasonableness of any amount requested
therein. Promptly (and, in any event within three (3) Business Days) after
receipt of any such request, the Escrow Agent shall release to the Shareholder
Party Representatives, by wire transfer of immediately available funds to such
account as the Shareholder Party Representatives designate in such request, the
amount so requested.
Section 8. PAYMENTS FROM ESCROW TAX FUND.
Promptly (and, in any event within three (3) Business Days) after
receipt of any funds for deposit in the Escrow Tax Account as contemplated in
Section 2(d), the Escrow Agent shall release to the Shareholders, in accordance
with their respective Applicable Percentages in the manner provided in Section
10, the entire balance of the Escrow Tax Fund; PROVIDED, HOWEVER, that no
amount shall be so released to any Nonresponding Shareholder unless and until
such Shareholder has surrendered all certificates for Shares registered in the
name of such Shareholder as contemplated in Section 5.
Section 9. RELEASE OF ESCROW FUNDS.
(a) The Escrow Agent shall release the Escrow Funds as follows:
(i) Promptly upon receipt of joint written instructions,
substantially in the form of EXHIBIT C hereto, signed by the Parent (or
such other member of the Buyer Group) and the Shareholder Party
Representatives ("JOINT INSTRUCTIONS"), in accordance with, from such
Escrow Fund and to the persons set forth in such Joint Instructions.
(ii) On the 15th day following the receipt of any Purchaser Claim
Notice which is received by the Escrow Agent and which is not the subject
of a Shareholder Party Objection Notice, the Escrow Agent shall release
to the Parent (or such other member of the Buyer Group) such portion of
the Escrow Holdback Fund as is claimed in such Purchaser Claim Notice.
(iii) On the 15th day following the receipt of any Shareholder
Party Representative Claim Notice which is received by the Escrow Agent
and which is not the subject of a Parent Objection Notice, the Escrow
Agent shall release to the Shareholders, in accordance with their
respective Applicable Percentages in the manner provided in
8
Section 10, the portion of the Estimated Adjustment Fund as is claimed in
such Shareholder Party Representative Claim Notice; PROVIDED, HOWEVER,
that no amount shall be so released to any Nonresponding Shareholder
unless and until such Shareholder has surrendered all certificates
for Shares registered in the name of such Shareholder as contemplated
in Section 5.
(iv) On the date which is sixteen months following the date
hereof, the Escrow Agent shall release to the Shareholders, in accordance
with their respective Applicable Percentages in the manner provided in
Section 10, the balance of the Escrow Holdback Fund, if any; PROVIDED,
HOWEVER, that no amount shall be so released to any Nonresponding
Shareholder unless and until such Shareholder has surrendered all
certificates for Shares registered in the name of such Shareholder as
contemplated in Section 5.
(v) On the first anniversary of the date hereof, the Escrow
Agent shall release to the Company, Parent or other member of the Buyer
Group the balance of the Shareholder Payments Escrow Amounts, if any;
PROVIDED, HOWEVER, that, subject to any applicable statute of limitations
and/or escheat laws, no such release of funds shall relieve the Company of
any obligations to deliver such amounts to the Shareholders entitled
thereto pursuant to the terms of the Merger Agreement.
(vi) Amounts shall be released from the Escrow Expense Fund from
time to time prior to the date that is sixteen months following the date
hereof, as requested by the Shareholder Party Representatives, in
accordance with Section 7. On the date that is sixteen months following
the date hereof, the Escrow Agent shall release to the Shareholders, in
accordance with their respective Applicable Percentages in the manner
provided in Section 10, the balance of the Escrow Expense Fund, if any;
PROVIDED, HOWEVER, that no amount shall be so released to any
Nonresponding Shareholder unless and until such Shareholder has
surrendered all certificates for Shares registered in the name of such
Shareholder as contemplated in Section 5.
(vii) Amounts shall be released from the Escrow Tax Fund from time
to time in accordance with Section 8.
(b). In the event that the Escrow Agent receives a Shareholder Party
Representative Objection Notice from the Shareholder Party Representatives,
that portion of the Escrow Holdback Fund that is in dispute as reflected in
such Shareholder Party Representative Objection Notice shall be held by the
Escrow Agent until the occurrence of one of the following events:
(i) Receipt by the Escrow Agent of Joint Instructions
instructing the Escrow Agent to release the disputed portion of the Escrow
Holdback Fund to such party or parties and in such amount or amounts as is
specified in such Joint Instructions; or
(ii) Receipt by the Escrow Agent of a written notice (a
"CERTIFIED JUDGMENT NOTICE"), substantially in the form of EXHIBIT D
hereto, from the Parent (or such other member of the Buyer Group) or the
Shareholder Party Representatives
9
certifying that a final, nonappealable court judgment or settlement with
respect to the claim covered by the Purchaser Claim Notice is attached
to such Certified Judgment Notice, in which case the Escrow Agent shall
distribute the disputed portion of the Escrow Holdback Fund in accordance
with such judgment on the 30th day following the receipt of any Certified
Judgment Notice, unless prior to such date the Escrow Agent receives a
written notice (an "APPEAL NOTICE"), substantially in the form of EXHIBIT
E hereto, from the party not submitting such Certified Judgment Notice,
stating that the judgment has or can and will be appealed. A party
delivering a Certified Judgment Notice or an Appeal Notice shall deliver
to the other party hereto a copy thereof on or prior to the date of
delivery thereof to the Escrow Agent, and the Escrow Agent shall also
deliver a copy of each Certified Judgment Notice or Appeal Notice to the
party which did not deliver the same promptly after the Escrow Agent's
receipt thereof (provided that the failure of the Escrow Agent to make
such delivery shall not affect the obligation of the Escrow Agent to
release funds pursuant to this Section 9(b)). If the judgment is appealed,
no release of the disputed portion of the Escrow Holdback Fund, will be
made until delivery of a subsequent Certified Judgment Notice to the
Escrow Agent, which notice is not the subject of subsequent Appeal Notice
delivered in accordance with this Section 9(b)(ii).
(c). In the event that the Escrow Agent receives a Parent Objection
Notice or a Shareholder Party Representative Objection Notice, that portion of
the Estimated Adjustment Fund that is in dispute as reflected in such Parent
Objection Notice or such Shareholder Party Representative Objection Notice
shall be held by the Escrow Agent until the occurrence of one of the following
events:
(i) Receipt by the Escrow Agent of Joint Instructions
instructing the Escrow Agent to release the disputed portion of the
Estimated Adjustment Fund to such party or parties and in such amount or
amounts as is specified in such Joint Instructions; or
(ii) Receipt by the Escrow Agent of a Certified Judgment Notice,
substantially in the form of EXHIBIT D hereto, from the Parent or the
Shareholder Party Representatives certifying that a final, nonappealable
court judgment or settlement with respect to the claim covered by the
Purchaser Claim Notice or the Shareholder Party Representative Claim
Notice is attached to such Certified Judgment Notice, in which case the
Escrow Agent shall distribute the disputed portion of the Estimated
Adjustment Fund, in accordance with such judgment on the 30th day
following the receipt of any Certified Judgment Notice, unless prior to
such date the Escrow Agent receives an Appeal Notice, substantially in the
form of EXHIBIT E hereto, from the party not submitting such Certified
Judgment Notice, stating that the judgment has or can and will be
appealed. A party delivering a Certified Judgment Notice or an Appeal
Notice shall deliver to the other party hereto a copy thereof on or prior
to the date of delivery thereof to the Escrow Agent, and the Escrow Agent
shall also deliver a copy of each Certified Judgment Notice or Appeal
Notice to the party which did not deliver the same promptly after the
Escrow Agent's receipt thereof (provided that the failure of the Escrow
Agent to make such delivery shall not affect the obligation of the Escrow
Agent to release funds pursuant to this Section 9(c)). If the judgment is
appealed, no release of the disputed portion of the
10
Estimated Adjustment Fund, will be made until delivery of a subsequent
Certified Judgment Notice to the Escrow Agent, which notice is not the
subject of subsequent Appeal Notice delivered in accordance with this
Section 9(c)(ii).
Section 10. MANNER OF MAKING PAYMENTS TO SHAREHOLDERS.
Unless otherwise directed in writing by the Shareholder Party
Representatives, the Escrow Agent shall release or pay any amount to be
released or paid to Shareholders pursuant to this Agreement: (i) in the case
of the shareholders listed on Exhibit F, by wire transfer of immediately
available funds to the account of such Shareholder set forth in Exhibit F, or
as otherwise designated in writing from time to time by such Shareholder to the
Escrow Agent, and (ii) in the case of each other Shareholder, by bank check
drawn on Old National Bank personally delivered to such Shareholder or mailed
to the address of such Shareholder as set forth in the Letter of Transmittal
submitted by such Shareholder as contemplated in Section 5.
Section 11. TERMINATION.
This Escrow Agreement shall terminate upon the payment by the Escrow
Agent of all of the Escrow Funds in accordance with this Escrow Agreement.
Notwithstanding any termination of this Escrow Agreement, the provisions of
Section 12(c) and any outstanding amounts due under 12(d) hereof shall survive
such termination and remain in full force and effect.
Section 12. ESCROW AGENT.
(a). OBLIGATIONS.
(i) The sole obligations of the Escrow Agent are those
specifically provided in this Escrow Agreement and the Escrow Agent shall
have no liability under, or duty to inquire into, the terms and provisions
of any agreement between the parties hereto. The duties of the Escrow
Agent are purely ministerial in nature and it shall not incur any
liability whatsoever, except for willful misconduct or gross negligence.
(ii) The Escrow Agent shall not have any responsibility for the
genuineness or validity of any document or other item deposited with it or
of any signature thereon reasonably believed by it to be signed by the
proper parties and shall not have any liability for acting in accordance
with any written instructions or certificates given to it hereunder and
reasonably believed by it to be signed by the proper parties.
(b). RESIGNATION AND REMOVAL. The Escrow Agent may resign and be
discharged from its duties hereunder at any time by giving at least 30 days
notice of such resignation to the Parent and the Shareholder Party
Representatives, specifying a date upon which such resignation shall take
effect; PROVIDED, HOWEVER, that the resigning Escrow Agent shall continue to
serve as escrow agent until its successor accepts the Escrow Funds and assumes
all responsibilities as escrow agent hereunder. Upon receipt of such notice, a
successor escrow agent shall be jointly appointed by the Parent and the
Shareholder Party Representatives, such successor escrow agent to become the
Escrow Agent hereunder on the resignation date specified in such notice. If an
instrument of acceptance by a successor escrow agent shall not have been
delivered to the
11
resigning Escrow Agent within 40 days after the giving of such
notice of resignation, the resigning Escrow Agent may tender onto the registry
or custody of any court of competent jurisdiction any part or all of the Escrow
Funds and thereafter be relieved of its duties and obligations hereunder. The
Parent and the Shareholder Party Representatives may at any time substitute a
new Escrow Agent by giving 30 days written notice thereof to the existing
Escrow Agent and paying all fees and expenses of such Escrow Agent incurred to
the date of the substitution.
(c). INDEMNIFICATION. The Shareholder Parties shall hold the Escrow
Agent harmless from, and shall jointly and severally indemnify the Escrow Agent
against, any loss, liability, expense (including attorney's fees and expenses),
claim or demand (a "LOSS") arising out of or in connection with the performance
of its obligations in accordance with the provisions of this Escrow Agreement
and which are attributable to any act or omission of the Shareholder Parties or
the Shareholder Party Representatives, except for any of the foregoing arising
out of the gross negligence or willful misconduct of the Escrow Agent and
PROVIDED, THAT, the maximum liability of each of Pieter V.C. Litchfield,
Michael C. Larned, Michael D. de Milt, William J. Herdrich and Robert C.
Weilminster for any Loss shall not exceed such individual's Applicable
Percentage of the total amount of such Loss for which indemnification is to be
provided by the Shareholder Parties. The Parent shall hold the Escrow Agent
harmless from, and indemnify the Escrow Agent against, any Loss arising out of
or in connection with the performance of its obligations in accordance with the
provisions of this Escrow Agreement and which are attributable to any act or
omission of the Parent, except for any of the foregoing arising out of the
gross negligence or willful misconduct of the Escrow Agent. The Parent and the
Shareholder Parties shall hold the Escrow Agent harmless from, and indemnify
(with one-half to be borne by the Parent and one-half to be borne by the
Shareholder Parties) the Escrow Agent against, any Loss arising out of or in
connection with the performance of its obligations in accordance with the
provisions of this Escrow Agreement and which are not attributable to any act
or omission of the Parent, the Shareholder Parties or the Shareholder Party
Representatives, except for any of the foregoing arising out of the gross
negligence or willful misconduct of the Escrow Agent and PROVIDED, THAT, the
maximum liability of each of Pieter V.C. Litchfield, Michael C. Larned, Michael
D. de Milt, William J. Herdrich and Robert C. Weilminster for any Loss shall
not exceed such individual's Applicable Percentage of the total amount of such
Loss for which indemnification is to be provided by the Shareholder Parties.
The foregoing indemnities in this paragraph shall survive the resignation or
substitution of the Escrow Agent or the termination of this Escrow Agreement.
(d). FEES AND EXPENSES OF ESCROW AGENT. For its services hereunder,
the Escrow Agent shall be entitled to a one-time fee of $2,500 payable within
ten (10) Business Days of receipt by the Parent and the Shareholder Party
Representatives of an invoice therefor. No increase in the rate of any fee
charged by the Escrow Agent shall be valid hereunder unless previously approved
in writing by the Parent and the Shareholder Party Representatives of an
invoice therefor. Such fees shall be paid one-half by the Parent and one-half
by the Shareholder Party Representatives on behalf of the Shareholder Parties.
In addition, the Escrow Agent shall be reimbursed for all reasonable out-of-
pocket expenses, disbursements and advances (including, but not limited to
postage, courier, overnight mail insurance, money wire transfer, long distance
telephone charges, facsimile, stationery and travel expenses), and including
reasonable attorneys' fees and reasonable accounting fees, incurred by the
Escrow Agent not in the ordinary course of
12
business. The amount of such reimbursement shall be paid one half by the
Parent and one half by the Shareholder Party Representatives on behalf of the
Shareholder Parties. These fees described in this paragraph (d) do not include
extraordinary services which will be priced according to time and scope of
duties and shall be previously approved in writing by the Parent and the
Shareholder Party Representatives. The fees described in this paragraph (d)
shall be deemed earned in full upon receipt by the Escrow Agent, and no
portion shall be refundable for any reason, including without limitation,
termination of the Escrow Agreement.
Section 13. SHAREHOLDER PARTY REPRESENTATIVES.
Following the signing of this Escrow Agreement, the Shareholder Party
Representatives, acting individually or jointly, shall be authorized to receive
any and all payments, assignments, instruments and other deliveries to be made
or delivered to the Principal Shareholders pursuant to this Escrow Agreement
and to act for and on behalf of each Principal Shareholder with respect to this
Escrow Agreement, including, without limitation, in all instances where the
Principal Shareholders or any of them are required or permitted to give any
approval or consent or to take any other action under this Escrow Agreement.
The Parent, Company and the Escrow Agent shall not be responsible for the
proper application by the Shareholder Party Representatives of any payment,
assignment, instrument or other delivery made to the Shareholder Party
Representatives for the benefit of any of the Principal Shareholders or for the
Shareholder Party Representatives' compliance with the terms and provisions of
this Escrow Agreement and shall be entitled to rely conclusively upon the
actions of the Shareholder Party Representatives as actions for and on behalf
of the Principal Shareholders with respect to this Escrow Agreement.
Notwithstanding anything to the contrary contained herein, neither of the
Shareholder Party Representatives shall be required to take, or liable for
failing to take, any action not expressly required to be taken by the
Shareholder Party Representatives pursuant to the terms of this Escrow
Agreement and in no event shall either of the Shareholder Party Representatives
be personally responsible or liable for any obligation or liability hereunder
of any Shareholder or other party hereto or for the proper application by any
Principal Shareholder or any other person of any payment, assignment,
instrument or other delivery made by either of the Shareholder Party
Representatives to such Principal Shareholder or other person. Wherever in
this Escrow Agreement the Shareholder Party Representatives are authorized or
permitted to take any action, such action may be taken by either or both of
them and the act of either of them shall be deemed to be the act of both, and
the Parent, Company and Escrow Agent shall be entitled to rely upon any such
action accordingly.
Section 14. DISPUTES.
If any dispute should arise with respect to the payment or ownership
or right of possession of the Escrow Funds, the Escrow Agent is authorized and
directed to retain in its possession, without liability to anyone, all or any
part of the Escrow Funds until such dispute shall have been settled either by
mutual agreement of the parties concerned (including the Parent and the
Shareholder Party Representatives) or by the final order, decree or judgment of
a court of competent jurisdiction in the United States of America (the time for
appeal having expired with no appeal having been taken) in a proceeding to
which the Parent (or such other member of the Buyer Group) and the Shareholder
Party Representatives are parties, but the Escrow Agent shall be under no duty
whatsoever to institute or defend any such proceedings.
13
Section 15. NOTICES.
All notices and other communications required hereunder or in
connection herewith shall be in writing and shall be deemed to have been duly
given if personally delivered or if sent by nationally-recognized overnight
courier, by telecopy, or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
IF TO THE PARENT AND/OR COMPANY, TO:
BERRY PLASTICS CORPORATION
101 OAKLEY STREET
EVANSVILLE, INDIANA 47710
ATTENTION: JAMES M. KRATOCHVIL
TELEPHONE: (812) 421-9604
FACSIMILE: (812) 424-2904;
WITH A COPY TO:
O'SULLIVAN GRAEV & KARABELL, LLP
30 ROCKEFELLER PLAZA, 41ST FLOOR
NEW YORK, NEW YORK 10112
ATTENTION: MICHAEL J. O'BRIEN, ESQ.
FACSIMILE: (212) 408-2420
TELEPHONE: (212) 408-2400;
IF TO THE SHAREHOLDER PARTY REPRESENTATIVES OR THE SHAREHOLDER
PARTIES, TO:
MICHAEL C. LARNED
178 FARMS ROAD
STAMFORD, CONNECTICUT 06903
FACSIMILE: (203) 986-1522;
MICHAEL D. DE MILT
62 WOODMERE ROAD
STAMFORD, CONNECTICUT 06905
FACSIMILE (203) 986-1522;
WITH A COPY TO:
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6092
ATTENTION: BRIAN J. MORRIS, ESQ.
14
TELECOPIER: (212) 259-6333.
IF TO THE ESCROW AGENT, TO:
OLD NATIONAL TRUST COMPANY
420 MAIN STREET
EVANSVILLE, INDIANA 47708
ATTENTION: SHANNON MARSHALL
FACSIMILE: 812-461-9738;
TELEPHONE: 812-461-9741
or to such other address as the parties hereto to whom notice is to be given
may have furnished in writing to the other parties hereto. Any such notice or
communication shall be deemed to have been received (i) in the case of personal
delivery, on the date of such delivery, (ii) in the case of nationally-
recognized overnight courier, on the next Business Day after the date when
sent, (iii) in the case of telecopy transmission, when received, and (iv) in
the case of mailing, on the third Business Day following that on which the
piece of mail containing such communication is posted.
Section 16. COUNTERPARTS.
This agreement may be executed in any number of counterparts and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
Section 17. GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE
OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW
OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION
WOULD ORDINARILY APPLY. IT IS THE INTENTION OF THE PARTIES HERETO THAT THE
SITUS OF THE ESCROW FUND BE AND IT SHALL BE ADMINISTERED IN THE STATE IN WHICH
THE PRINCIPAL OFFICE OF THE ESCROW AGENT FROM TIME TO TIME ACTING HEREUNDER IS
LOCATED.
15
Section 18. BENEFITS OF ESCROW AGREEMENT.
All the terms and provisions of this Escrow Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Anything contained herein to the contrary
notwithstanding, this Escrow Agreement shall not be assignable by any party
hereto without the consent of the Parent, the Shareholder Party Representatives
and the Escrow Agent; PROVIDED, HOWEVER, that the Parent may assign its rights
hereunder to its lenders and their successors and assigns or any other
financing source of the Parent, PROVIDED, FURTHER, HOWEVER, that no such
assignment shall relieve the Parent from any of its obligations or liabilities
hereunder.
Section 19. MODIFICATION. This Escrow Agreement shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by each of
the parties hereto.
Section 20. DESCRIPTIVE HEADINGS. The descriptive headings in this Escrow
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision hereof.
Section 21. ENTIRE AGREEMENT. This Escrow Agreement and the other
agreements and documents referenced herein contain all the agreements among the
parties with respect to the transactions contemplated hereby and supersede all
prior agreements and understandings among the parties with respect thereto.
* * * * *
16
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
executed and delivered on the date first above written.
BERRY PLASTICS CORPORATION
By: /S/ JAMES KRATOCHVIL
Name: James Kratochvil
Title: Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
POLY-SEAL CORPORATION
By: /S/ MICHAEL C. LARNED
Name: Michael C. Larned
Title: Chairman of the Board
OLD NATIONAL TRUST COMPANY
By: /S/ SHANNON MARSHALL
Name: Shannon Marshall
Title: Corporate Accounts Officer
SHAREHOLDER PARTY REPRESENTATIVES
/S/ MICHAEL D. DE MILT
Michael D. de Milt
/S/ MICHAEL C. LARNED
Michael C. Larned
EXHIBIT A
LETTER OF TRANSMITTAL
EXHIBIT B
SHAREHOLDERS
See Attached.
SHAREHOLDER CERTIFICATE # NUMBER OF SHARES Applicable
PERCENTAGE
Michael C. Larned and Michael D. 318 534 534 0.05
deMilt, Trustees of The Evangela
del Sandys Burton Revocable Trust
u/a/d 11/1/89
c/o The Brooklyn Improvement Co.
Michael C. Larned and Michael D. 475 4,534 4,534 0.43
deMilt, Trustees of The Notrub
Credit Shelter Trust u/w/o John
R. Burton
c/o The Brooklyn Improvement Co.
John R. Burton, III 339 133
340 133 266 0.03
Michael D. deMilt, Trustee of The 493 2,209 2,209 0.21
Emily K. Larned Trust u/a/d
11/01/95
c/o The Brooklyn Improvement Co.
Michael D. deMilt, Trustee 422 1,219
Trust u/a/d 12/27/93 446 450
Marguerita S. Larned 469 540 2,209 0.21
c/o The Brooklyn Improvement Co.
Robert B. Hamill and Michael C. 457 8,205 8,205 0.78
Larned, Trustees of The Robert B.
Hamill Trust u/a/d 6/20/ 97
Michael C. Larned, Trustee of The 311 2,129
Eric H. Litchfield Trust u/a/d 306 2,129 4,258 0.40
2/5/73
c/o Brooklyn Improvement Co.
Michael C. Larned, Trustee of The 321 3,947 3,947 0.38
Eric H. Litchfield Trust u/a/d
11/22/86
c/o Brooklyn Improvement Co.
Michael C. Larned, Trustee of The 428 8,205 8,205 0.78
Amelia H. Hopkins Trust u/a/d
8/25/85
c/o The Brooklyn Improvement Co.
Michael C. Larned, Trustee of The 332 241
Ann L. Schofield Trust u/a/d 361 273
08/29/90 381 280
c/o The Brooklyn Improvement Co. 417 425
437 450
460 540 2,209 0.21
Michael C. Larned, Trustee of The 335 241
Beatrice L. Larned Revocable 362 273
Trust u/a/d 3/1/90 382 280
c/o The Brooklyn Improvement Co. 404 425
438 450
461 540 2,209 0.21
Michael C. Larned, Trustee of The 336 241
Matthew S. Litchfield Trust u/a/d 363 273
12/27/79 383 280
c/o The Brooklyn Improvement Co. 405 425
439 450
462 540 2,209 0.21
Michael C. Larned, Trustee of The 499 2,209 2,209 0.21
Gregory H. Litchfield Trust u/a/d
2/12/96
c/o The Brooklyn Improvement Co.
Michael C. Larned, Trustee of The 333 241
William S. Litchfield Trust u/a/d 365 273
10/31/81 385 280
c/o The Brooklyn Improvement Co. 407 425
441 450
464 540 2,209 0.21
Michael C. Larned, Trustee of The 331 241 0.21
Carolyn A. Schofield Trust u/a/d 366 273
2/22/86 386 280
c/o The Brooklyn Improvement Co. 408 425
442 450
465 540 2,209
Michael C. Larned, Trustee of The 328 241
Jeremy S. Schofield Trust u/a/d 367 273
6/1/87 387 280
c/o The Brooklyn Improvement Co. 409 425
443 450
466 540 2,209 0.21
Michael C. Larned, Trustee of The 329 241
Jonathan E. Schofield Trust u/a/d 368 273
7/21/91 388 280
c/o The Brooklyn Improvement Co. 410 425
444 450
467 540 2,209 0.21
Michael C. Larned, Trustee of the 330 241
Julia K. Schofield Trust u/a/d 369 273
10/15/82 389 280
c/o The Brooklyn Improvement Co. 411 425
445 450
468 540 2,209 0.21
Pieter V. C. Litchfield 219 5,000
316 3,400
315 3,400
326 241
360 273
380 280
402 425
436 450
459 540 14,009 1.33
Sarah R. Litchfield and Michael 452 2,000 2,000 0.19
C. Larned, Trustees of The Sarah
R. Litchfield 1996 Revocable
Trust u/a/d 12/30/96
c/o The Brooklyn Improvement Co.
Christopher S. Litchfield 312 2,129
305 2,129
323 3,947 8,205 0.78
SHAREHOLDER CERTIFICATE # NUMBER OF SHARES Applicable
PERCENTAGE
Shirley A. Allen 358 25
357 200 225 0.02
John T. Brown 11 200
153 200 400 0.04
Charles W. Burgess 54 100
55 100
56 100
57 100
58 100
154 500 1,000 0.10
Betty H. Coons, Trustee of The 285 4,999 4,000 0.38
Betty H. Coons Survivor's Trust B
u/a/d 8/24/85
Nancy M. Chandler 342 300 300 0.03
Shirley D. Courtney 492 100
126 100
159 200
491 600 1,000 0.10
James A. Dowell, Jr. 138 250
163 250 500 0.05
William E. Freyer 260 400 400 0.04
Kenneth M. Gillman 425 50 50 0.00
Rose Hall 131 50
168 50 100 0.01
Eileen C. House 495 1,000 1,000 0.10
Gilgod C. Iskelov 232 100
235 100 200 0.02
Earl H. Kahl 34 100
71 100
120 100
141 50
171 350 700 0.07
George M. Kresnosky 474 1,250 1,250 0.12
John W. Limbach 74 250
75 250
112 200
179 700 1,400 0.13
Clara Longo 78 100
183 100 200 0.20
Karl G. Mauck 237 100
297 300 400 0.40
Harry Keith Myers 99 100
100 200
140 100
253 100
254 300
212 400 1,200 0.11
Mauro O'Brien 341 300 300 0.03
Catherine Owsianiecki 77 100
189 100 200 0.02
Patricia Rebbert 42 100 200 0.02
192 100
H.B.B. Robinson 93 66
193 66 132 0.01
H. Thomas Sharpe, Jr. 481 4,000
455 2,000 6,000 0.57
Jeana M. Torzilli 128 100
195 100
230 200 400 0.04
Richard K. Wahl 483 228 228 0.02
Norman R. Warrell 484 750 750 0.07
TOTAL NUMBER OF AUTHORIZED SHARES: 1,500,000
TOTAL NUMBER OF OUTSTANDING SHARES: 1,051,578
TOTAL NUMBER OF SHAREHOLDERS: 53
EXHIBIT C
[Date]
[Escrow Agent]
INSTRUCTIONS FOR RELEASE OF ESCROW FUND
Ladies and Gentlemen:
Reference is made to the Escrow Agreement dated ____________, 2000
(the "ESCROW AGREEMENT"), among Berry Plastics Corporation, Poly-Seal
Corporation, the Shareholder Party Representatives and you. Capitalized terms
used herein but not otherwise defined shall have the meanings ascribed to them
in the Escrow Agreement.
In accordance with Section 6(a)(i) of the Escrow Agreement, the
undersigned hereby instructs you to disburse [indicate amount] from the
[indicate relevant Escrow Fund(s)] to [indicate recipients].
BERRY PLASTICS CORPORATION
By:
Name:
Title:
SHAREHOLDER PARTY REPRESENTATIVES
______________________________
Michael D. de Milt
_____________________________
Michael C. Larned
EXHIBIT D
[Date]
[ESCROW AGENT]
NOTICE OF CERTIFIED JUDGMENT
Gentlemen:
Reference is made to the Escrow Agreement dated ____________, 2000
(the "ESCROW AGREEMENT"), among Berry Plastics Corporation, Poly-Seal
Corporation, the Shareholder Party Representatives and you. Capitalized terms
used herein but not otherwise defined shall have the meanings ascribed to them
in the Escrow Agreement.
In accordance with [Section 9(b)(ii)/Section 9(c)(ii)] of the Escrow
Agreement, the undersigned hereby instructs you to disburse from the [Escrow
Holdback Fund/Estimated Adjustment Fund] to the persons named in the final
court judgment (a certified copy of which is attached hereto) the amounts set
forth therein.
BERRY PLASTICS CORPORATION
By:_____________________________
Name:
Title:
-or-
SHAREHOLDER PARTY REPRESENTATIVES
_____________________________
Michael D. de Milt
_____________________________
Michael C. Larned
EXHIBIT E
[Date]
[ESCROW AGENT]
NOTICE OF APPEAL
Gentlemen:
Reference is made to the Escrow Agreement dated ____________, 2000
(the "ESCROW AGREEMENT"), among Berry Plastics Corporation, Poly-Seal
Corporation, the Shareholder Party Representatives and you. Capitalized terms
used herein but not otherwise defined shall have the meanings ascribed to them
in the Escrow Agreement.
In accordance with [Section 9(b)(ii)/Section 9(c)(ii)] of the Escrow
Agreement, the undersigned hereby instructs you not to disburse from the
[Escrow Holdback Fund/Estimated Adjustments Fund] to the persons named in the
court judgment certified to you as final pursuant to a notice dated _________,
20___ . This judgment is or can and will be appealed.
BERRY PLASTICS CORPORATION
By:_____________________________
Name:
Title:
-or-
SHAREHOLDER PARTY REPRESENTATIVES
_____________________________
Michael D. de Milt
_____________________________
Michael C. Larned
EXHIBIT F
WIRE INSTRUCTIONS
See Attached.