Exhibit 10.12
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
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Exhibit 10.12 (Continued)
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.
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.
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Exhibit 10.12 (Continued)
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.
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
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Exhibit 10.12 (Continued)
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.
(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
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Exhibit 10.12 (Continued)
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 "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
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Exhibit 10.12 (Continued)
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 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.
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Exhibit 10.12 (Continued)
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. 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;
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Exhibit 10.12 (Continued)
(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;
(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.
ARTICLE XI
REPLACEMENT OF TRUSTEE
The Trustee may, with 30 days advance written notice, be removed at any
time by ConAgra or may resign,
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Exhibit 10.12 (Continued)
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.
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.
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Exhibit 10.12 (Continued)
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/ ▇▇▇▇▇▇▇ ▇. Key 8/6/92
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Key Date
Title: Executive Vice President
and Chief Financial Officer
CHEMICAL BANK, Trustee
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 8/6/92
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
Title: Vice President
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Exhibit 10.12 (Continued)
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. ▇▇▇▇-▇▇▇▇▇▇ Employee Savings Plan Employee Benefits Committee
4. ▇▇▇▇▇▇▇▇ Employee Savings Trust Employee Benefits Committee
5. Cheese Hourly Investment Plan Employee Benefits Committee
6. ▇▇▇▇▇▇▇▇ Cheese, Inc. Employee Savings Plan Employee Benefits Committee
7. Golden Valley Microwave Foods Retirement Employee Benefits Committee
Savings Plan
8. ▇▇▇▇▇▇▇ 401(k) Plan Employee Benefits Committee
9. 401(k) Profit Sharing Plan and Trust Agreement Employee Benefits Committee
for ▇. ▇. ▇▇▇▇▇▇ Inc., a Utah Corporation
10. Voluntary Investment and Profit Sharing Plan Employee Benefits Committee
for Regular Salaried Employees of ▇▇▇▇-▇▇▇▇▇▇,
Inc.
11. The Arrow Industries, Inc. Profit Sharing Employee Benefits Committee
Plan
12. ConAgra Long Term Senior Management Incentive Compensation Committee
Plan
13. Employee Flexible Bonus Payment Plan Compensation Committee
14. ConAgra Employee Stock Purchase Plan Compensation Committee
15. ConAgra 1978 Stock Option Plan for Non-Senior Compensation Committee
Management
16. ConAgra 1982 Stock Option Plan Compensation Committee
17. ConAgra 1985 Stock Plan Compensation Committee
18. The ConAgra 1990 Stock Plan Compensation Committee
46
Exhibit 10.12 (Continued)
19. Golden Valley Incentive Stock Option Plan Compensation Committee
20. Golden Valley Non-Statutory Stock Option Plan Compensation Committee
21. Retiree Medical Benefit Plans and Obligations Employee Benefits Committee
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 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
47
Exhibit 10.12 (Continued)
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.
48
Exhibit 10.12 (Continued)
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, (b) any agreement, indenture or other instrument to which the
Trust is a party or by which the Trust or its assets may
49
Exhibit 10.12 (Continued)
be bound or subject or (c) to its knowledge any law, regulation,
order, arbitration award, judgment or decree applicable to the
Trust.
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:
50
Exhibit 10.12 (Continued)
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:
(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
51
Exhibit 10.12 (Continued)
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.
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.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number:(▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Secretary
(b) To the Purchaser:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number:(▇▇▇) ▇▇▇-▇▇▇▇
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,
52
Exhibit 10.12 (Continued)
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.
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.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement on the
date and year first above written.
CONAGRA, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. Key
Title: Executive Vice President
and Chief Financial Officer
CHEMICAL BANK, as Trustee
By:
Name:
Title:
53
Exhibit 10.12 (Continued)
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 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.
54
Exhibit 10.12 (Continued)
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
55
Exhibit 10.12 (Continued)
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
56