EXHIBIT 99.1
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ESCROW AGREEMENT
DATED AS OF JULY 6, 1999
AMONG
XXXXX PLASTICS CORPORATION,
CARDINAL PACKAGING, INC.
AND
OLD NATIONAL TRUST COMPANY
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ESCROW AGREEMENT dated as of July
6, 1999, among XXXXX PLASTICS CORPORATION
(the "Buyer"), CARDINAL PACKAGING, INC., a
Delaware corporation (the "COMPANY"), KEY
EQUITY CAPITAL CORPORATION (the
"SHAREHOLDERS' REPRESENTATIVE") and OLD
NATIONAL TRUST COMPANY, as escrow agent (the
"ESCROW AGENT").
This Escrow Agreement is being executed in accordance with Section
2.5 of the Stock Purchase Agreement dated as of June 18, 1999 (the "PURCHASE
AGREEMENT"), among the Company, the Buyer, CPI Holding Corporation and the
shareholders (the "Shareholders") of CPI Holding Corporation. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed thereto
in the Purchase Agreement.
In consideration of the mutual covenants contained herein and in the
Purchase 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 Company or an affiliate of the Company is
delivering to the Escrow Agent by wire transfer of immediately available funds
the sum of $500,000 (the "ESCROW AMOUNT"), and the Escrow Agent is accepting
such sum for deposit in escrow pursuant to the provisions of this Escrow
Agreement. Any interest earned on the Escrow Amount shall be paid to the
Shareholders' Representative quarterly. The Escrow Amount or proceeds derived
therefrom, if any (other than interest), are collectively called the "ESCROW
FUND."
(b) The Escrow Agent shall establish a segregated account (the
"ESCROW ACCOUNT") at its office located at its address set forth in Section 10
in which to hold the Escrow Fund and any securities in which the Escrow Fund
may, from time to time, be invested. The Escrow Agent shall keep appropriate
records to reflect the current value from time to time of the Escrow Fund,
including appropriate adjustments for disbursements and income earned or losses
incurred in respect thereof.
(c) Pursuant to Section 2.4(c)(ii) of the Purchase Agreement, the
Shareholders may deliver additional funds to the Escrow Agent as additions to
the Escrow Amount and for deposit into the Escrow Fund pursuant to the
provisions of this Escrow Agreement. The Escrow Agent shall accept such funds
pursuant to the provisions of this Agreement.
SECTION 3. INVESTMENTS.
(a) Initially the Escrow Agent will invest the Escrow Fund in
commercial paper with maturities not to exceed 90 days given on the date of such
investment a credit rating of at least P-1 by Xxxxx'x Investors Service, Inc. or
A-1 by the Standard & Poor's Corporation. The Escrow Agent will invest the
Escrow Fund in such other Permitted Investments as directed by the Shareholders'
Representative from time to time pursuant to written instructions signed by the
Shareholders' Representative 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 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);
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(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;
(vi) 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;
(vii) 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 Xxxxx'x 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
(viii) 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 Company and the Shareholders' Representative as to any uninvested portion of
the Escrow Fund, 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 Xxxxx'x 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 FUND.
(a) The Escrow Fund shall be for the exclusive benefit of the Buyer
Group and the Shareholders and their respective successors, assigns, heirs,
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 Fund, or any
part thereof, shall be subject and subordinate to the prior right thereto of the
Buyer Group and the Shareholders.
(b) It is the intent of the Buyer Group and the Shareholders that
each of their respective interests in the Escrow Fund is merely a contingent
right to payment from the Escrow Fund, 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
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herein as a "BANKRUPTCY EVENT") shall increase its respective interest in the
Escrow Fund or affect, modify, convert or otherwise change the contingent nature
of its respective right to payment from the Escrow Fund 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 Company or any Shareholder
has an interest in the Escrow Fund 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 members of the Buyer Group 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 the Escrow Fund to secure the rights of the
Shareholders and the Buyer Group's obligations hereunder. The Escrow Agent
hereby agrees to act as bailee and possessory agent on behalf of the
Shareholders in respect of the security interest of the Shareholders in
the Buyer Group's rights to the Escrow Fund. 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 members of the Buyer Group hereunder in the Escrow Fund. 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; and
(ii) Each Shareholder hereby grants (effective as of the date hereof)
to the Buyer Group a first priority security interest in, and hereby
pledges and assigns to the Buyer Group, all of his, her or its respective
right, title and interest in the Escrow Fund to secure the Buyer Group's
rights and such obligations hereunder. The Escrow Agent hereby agrees to
act as bailee and possessory agent on behalf of the Buyer Group in respect
of the Buyer Group's security interest in the rights of the Shareholders
to the Escrow Fund. The Escrow Agent shall, upon receipt of
indemnification satisfactory to it from the Buyer Group 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 any member of the Buyer
Group to further perfect or maintain the security interest created by each
Shareholder hereunder in the Escrow Fund. 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.
(c) The parties hereto agree and acknowledge that the establishment
and maintenance of the Escrow Fund hereunder is intended to constitute
possession of the Escrow Fund for the purposes of perfecting the security
interests therein created by this Section 4.
SECTION 5. CLAIMS. In the event any member of the Buyer Group and its
respective successors and assigns, officers, directors, employees,
representatives and Affiliates asserts a claim for indemnification under and in
accordance with the Purchase Agreement, such person shall execute and deliver to
the Escrow Agent and the Shareholders' Representative a written notice to such
effect (a "BUYER CLAIM NOTICE"; and the claim being asserted in a Buyer Claim
Notice being hereinafter referred to as a "CLAIM") setting forth the nature and
details of such
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Claim and the amount thereof (or if not ascertainable, a reasonable maximum
amount thereof), the basis of the liability of the Shareholders therefor under
the Purchase Agreement, and instructing the Escrow Agent to deliver that portion
of the Escrow Fund as shall equal the amount of the Claim (or, if the amount of
the Claim shall be greater than the Escrow Fund, the balance of the Escrow Fund)
to the Company or such other member of the Buyer Group.
The Shareholders' Representative may object to any Buyer Claim
Notice by delivering to the Company, the Buyer and the Escrow Agent, within 30
days after delivery of the Buyer Claim Notice, a written notice (an "OBJECTION
NOTICE") stating that all or a portion of the amount specified in such Buyer
Claim Notice should not be released to the Company or such member of the Buyer
Group. The Company or such member of the Buyer Group shall deliver to the
Shareholders' Representative a copy of each Buyer 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 Shareholders' Representative promptly after
receipt (provided that the failure of the Escrow Agent to make such delivery to
the Shareholders' Representative shall not affect the obligation of the Escrow
Agent to release funds pursuant to Section 6(b) below). The Shareholders'
Representative shall deliver to the Buyer and the Company a copy of each
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 Buyer and
the Company promptly after receipt from the Shareholders' Representative
(provided that the failure of the Escrow Agent to make such delivery to the
Buyer and the Company shall not affect the obligation of the Escrow Agent to
hold the funds pursuant to Section 6(b) below).
SECTION 6. RELEASE OF ESCROW FUNDS.
(a) The Escrow Agent shall release funds from the Escrow Fund as
follows:
(i) Promptly upon receipt of joint written instructions,
substantially in the form of EXHIBIT A hereto, signed by the Company (or
such other member of the Buyer Group) and the Shareholders' Representative
("JOINT INSTRUCTIONS") in accordance with and to the persons set forth in
such Joint Instructions.
(ii) On the 31st day following the receipt of any Buyer Claim Notice
which is received by the Escrow Agent prior to the second anniversary of
the Closing Date (the "RELEASE DATE") and which is not the subject of an
Objection Notice, the Escrow Agent shall release to the member of the
Buyer Group such portion of the Escrow Fund as is claimed in such Buyer
Claim Notice.
(iii) On the second anniversary of the Closing Date, the Escrow Agent
shall release to the Shareholders' Representative the balance of the
Escrow Fund, if any.
(b) In the event that the Escrow Agent receives an Objection Notice
from the Shareholders' Representative, that portion of the Escrow Fund that is
in dispute as reflected in such Objection Notice shall be held by the Escrow
Agent until the occurrence of one of the following events (provided that the
Company or member of the Buyer Group continues to diligently pursue such claim):
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(i) Receipt by the Escrow Agent of Joint Instructions instructing the
Escrow Agent to release the disputed portion of the Escrow 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 B hereto, from a
member of the Buyer Group or the Shareholders' Representative certifying
that a final nonappealable court judgment or settlement with respect to
the claim covered by the Buyer Claim Notice is attached to such Certified
Judgment Notice, in which case the Escrow Agent shall distribute the
disputed portion of the Escrow Fund in accordance with such judgment on
the 16th 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 C 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 6(b)(ii)).
SECTION 7. TERMINATION. This Escrow Agreement shall terminate upon the
payment by the Escrow Agent of all of the Escrow Fund in accordance with this
Escrow Agreement. Notwithstanding any termination of this Escrow Agreement, the
provisions of Section 8(c) and any outstanding amounts due under 8(d) hereof
shall survive such termination and remain in full force and effect.
SECTION 8. 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 Company and the Shareholders' Representative,
specifying a date upon which such resignation
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shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall continue to
serve until its successor accepts the Escrow Fund and assumes all
responsibilities as escrow agent hereunder. Upon receipt of such notice, a
successor Escrow Agent shall be jointly appointed by the Company and the
Shareholders' Representative, 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 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
Fund and thereafter be relieved of its duties and obligations hereunder. The
Company and the Shareholders' Representative may at any time substitute a new
Escrow Agent by giving 10 days prior 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 Shareholders' Representative 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 Shareholders'
Representative, except for any of the foregoing arising out of the gross
negligence or willful misconduct of the Escrow Agent. The Company 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 Company or any affiliate of the
Company, except for any of the foregoing arising out of the gross negligence or
willful misconduct of the Escrow Agent. The Company and the Shareholders shall
hold the Escrow Agent harmless from, and indemnify (with one-half to be borne by
the Company and one-half to be borne by the Shareholders) 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 Company, any affiliate of the
Company, the Shareholders or the Shareholders' Representative, except for any of
the foregoing arising out of the gross negligence or willful misconduct of the
Escrow Agent. 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 fee of $350.00 per year, PRO RATED for any
shorter period for which the Escrow Agent shall act hereunder, payable in
advance. No increase in the rate of any fee charged by the Escrow Agent shall be
valid hereunder unless previously approved in writing by the Company and the
Shareholders' Representative. Such fees shall be paid one-half by the Company
and one-half by the Shareholders. 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 business. The
amount of such reimbursement shall be paid one-half by the Company and one-half
by the Shareholders. The fees described in this paragraph (d) shall be deemed
earned in full
7
upon receipt by the Escrow Agent, and no portion shall be
refundable for any reason, including without limitation, termination of the
Escrow Agreement.
SECTION 9. DISPUTES. If any dispute should arise with respect to the
payment or ownership or right of possession of the Escrow Fund, the Escrow Agent
is authorized and directed to retain in its possession, without liability to
anyone, all or any part of the Escrow Fund until such dispute shall have been
settled either by mutual agreement of the parties concerned (including any
member of the Buyer Group) the Company and the Shareholders' Representative) 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 a member of the Buyer Group and the
Shareholders' Representative are parties, but the Escrow Agent shall be under no
duty whatsoever to institute or defend any such proceedings.
SECTION 10. 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 facsimile, or by registered or certified mail, return
receipt requested and postage prepaid, addressed as follows:
if to the Shareholders' Representative:
Key Equity Capital Corporation
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Federal Tax ID Number: [__________]
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Company, any member of the Buyer Group and/or the
Buyer, to:
Xxxxx Plastics Corporation
Cardinal Packaging, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
8
Facsimile: (000) 000-0000
Federal Tax ID Number: 00-0000000
with a copy to:
First Atlantic Capital, Ltd.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. X'Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to Escrow Agent, to:
Old National Trust Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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 facsimile 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 11. COUNTERPARTS. This Escrow 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 12. 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 New York or any other
9
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.
SECTION 13. 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 Buyer, the
Shareholders' Representative and the Escrow Agent.
SECTION 14. 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 15. 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 16. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed and delivered on the date first above written.
XXXXX PLASTICS CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
CARDINAL PACKAGING, INC.
By: /S/ XXXX X. XXXXX
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
SHAREHOLDERS' REPRESENTATIVE:
By: /S/ XXXX X. XXXXX
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
OLD NATIONAL TRUST COMPANY
By: /S/ XXXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Corporate Accounts Officer
EXHIBIT A
[Date]
Old National Trust Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INSTRUCTIONS FOR RELEASE OF ESCROW FUND
Ladies and Gentlemen:
Reference is made to the Escrow Agreement dated as of July __, 1999
(the "ESCROW AGREEMENT"), among Cardinal Packaging, Inc., Xxxxx Plastics
Corporation, Key Equity Capital Corporation 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) of the Escrow Agreement, the
undersigned hereby instructs you to disburse from the Escrow Fund to the
following persons the amounts set forth opposite their respective names:
NAME AMOUNT
-------------------------- ----------------------------
-------------------------- ----------------------------
-------------------------- ----------------------------
[MEMBER OF BUYER GROUP]
By: ________________________________
Name:
Title:
SHAREHOLDERS' REPRESENTATIVE
By: ________________________________
Name:
Title:
EXHIBIT B
CERTIFIED JUDGMENT NOTICE
[Date]
Old National Trust Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NOTICE OF CERTIFIED JUDGMENT
Gentlemen:
Reference is made to the Escrow Agreement dated as of July __, 1999
(the "ESCROW AGREEMENT"), among Cardinal Packaging, Inc., Xxxxx Plastics
Corporation, Key Equity Capital Corporation 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(c)(ii) of the Escrow Agreement, the
undersigned hereby instructs you to disburse from the Escrow Fund to the persons
named in the final court judgment (a certified copy of which is attached hereto)
the amounts set forth therein.
[MEMBER OF BUYER GROUP]
By: _________________________________
Name:
Title:
- OR -
SHAREHOLDERS' REPRESENTATIVE
By: ________________________________
Name:
Title:
EXHIBIT C
APPEAL NOTICE
[Date]
Old National Trust Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NOTICE OF APPEAL
Gentlemen:
Reference is made to the Escrow Agreement dated as of July __, 1999
(the "ESCROW AGREEMENT"), among Cardinal Packaging, Inc., Xxxxx Plastics
Corporation, Key Equity Capital Corporation 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(c)(ii) of the Escrow Agreement, the
undersigned hereby instructs you not to disburse from the Escrow Fund to the
persons named in the court judgment certified to you as final pursuant to a
notice dated _________, ___ . This judgment is or can and will be appealed.
[MEMBER OF BUYER GROUP]
By: _________________________________
Name:
Title:
- OR -
SHAREHOLDERS' REPRESENTATIVE
By: ________________________________
Name:
Title:
