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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT
TO SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
ROPAK CORPORATION
(NAME OF SUBJECT COMPANY)
ROPAK CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, $.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
776670-10-1
(CUSIP NUMBER OF CLASS OF SECURITIES)
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WILLIAM H. ROPER
ROPAK CORPORATION
660 S. STATE COLLEGE BOULEVARD
FULLERTON, CALIFORNIA 92631-5138
TELEPHONE NUMBER (714) 870-9757
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICE AND COMMUNICATIONS
ON BEHALF OF THE PERSON(S) FILING STATEMENT)
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WITH A COPY TO:
LAW OFFICE OF WILLIAM M. CURTIS
25241 BUCKSKIN DRIVE
LAGUNA HILLS, CALIFORNIA 92653-5736
TELEPHONE NUMBER (714) 831-0400
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ITEM 1. SECURITY AND SUBJECT COMPANY
The name of the subject company is Ropak Corporation, a Delaware
corporation ("Ropak"), and the address of the principal executive offices of
Ropak is 660 S. State College Boulevard, Fullerton, California 92631-5138. The
title of the classes of equity securities to which this Statement relates is
Ropak's common stock, par value $.01 per share (the "Common Stock").
ITEM 2. TENDER OFFER OF THE BIDDER
This Statement relates to the tender offer disclosed in a Schedule 14D-1
dated March 21, 1995 (the "Schedule 14D-1) of the bidder, LINPAC Mouldings Ltd.,
a United Kingdom corporation ("LINPAC"), a subsidiary of LINPAC Group, Ltd. The
principal executive offices of LINPAC are located at Deykin Avenue, Witton,
Birmingham B6 7HY, United Kingdom.
The tender offer of LINPAC is to purchase and all outstanding shares of
Common Stock at $11.00 per share net to the seller in cash and to pay cash
consideration equal to $11.00 per share less the applicable option exercise
price to Ropak employees who agree to the cancellation of their stock options.
The tender offer is being made upon terms and subject to the conditions set
forth in LINPAC's Offer to Purchase dated March 21, 1995 (the "Offer to
Purchase") and in related letter of transmittal and other documents
(collectively, the "Offer"). According to the Offer, the purpose of the Offer is
to acquire publicly-held shares in Ropak.
ITEM 3. IDENTITY AND BACKGROUND
(a) The name and business address of the person filing this Statement is
Ropak Corporation, 660 S. State College Boulevard, Fullerton, California
92631-5138.
(b) Certain material contracts, agreements, arrangements and
understandings, and any actual or potential conflicts of interest, between
Ropak or its affiliates, on the one hand, and the executive officers, directors
or affiliates of Ropak are disclosed at pages 3 to 6, pages 11 to 17 and page
19 of Ropak's Proxy Statement dated March 27, 1995 relating to its Annual
Meeting of Stockholders to be held on May 16, 1995. A copy of such Proxy
Statement is filed as Exhibit 10.1 to this Statement and the portions of such
Proxy Statement referred to above are incorporated herein by reference.
EMPLOYMENT AGREEMENTS WITH ROPER BROTHERS
Ropak has written employment agreements with William H. Roper, its Chairman
and Chief Executive Officer; Robert E. Roper, its President; and C. Richard
Roper, its Executive Vice President (collectively the "Roper Brothers"). Each of
the Roper Brothers also serves as a member of Ropak's board of directors (the
"Board"). These employment agreements commenced as of January 1, 1995 and were
approved by the Board on February 24, 1995. The term of the agreement with
William H. Roper is for one year expiring December 31, 1995; the term of the
agreement with Robert E. Roper is for three years expiring December 31, 1997;
and the term of the agreement with C. Richard Roper is for four years expiring
December 31, 1998. The obligations of Ropak under each employment agreement have
been guaranteed by LINPAC.
The employment agreements provide for an annual base salary of $250,000 for
each of the Roper Brothers. Commencing in 1995, each of the Roper Brothers will
be eligible to participate in an incentive bonus program calculated in
accordance with a formula for each fiscal year in which he remains employed. In
general terms, if Ropak's Adjusted Earnings (as defined in the employment
agreement) for the year exceeds that year's Target Base defined in the
agreement, the Roper Brother will receive incentive compensation equal to 9.26%
of the amount by which Ropak's Adjusted Earnings exceeded that year's Target
Base up to a maximum allowable incentive bonus of $250,000 in any year.
"Adjusted Earnings" generally is defined as Ropak's income from operations
adjusted to eliminate extraordinary gains and losses unrelated to current year's
operations, incentive compensation for executive and management employees and
provisions for income taxes. The Target Base will be $7,871,000 for 1995,
$11,628,000 for 1996, $15,760,000 for 1997 and
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$20,306,000 for 1998. Any incentive bonus earned will be paid within 90 days
after the end of the applicable fiscal year.
The employment agreements require each Roper Brother to devote his full
business time to the activities of Ropak while employed by Ropak and contain
non-competition and confidentiality provisions in favor of Ropak. The
non-competition covenants apply for a period of seven years following
termination of employment. In consideration of non-competition and nondisclosure
covenants, Ropak is obligated to pay each Roper Brother the aggregate sum of
$1,320,000 payable in equal monthly installments over a term of six years
commencing with the first month after the latter of: (i) the last month in which
he is employed or (ii) the last month in which he is entitled to receive
severance payments described below. In the event of his death or disability
while employed or during such six year term, non-competition payments will
continue to be made to his spouse or heirs for the remainder of the six year
payment period.
Each of the employment agreements provides the employee is entitled to
severance pay if his employment is terminated, other than for cause or his
voluntary resignation, equal to 150% of the amount of his base salary, payable
monthly for the unexpired original term of his employment agreement. If a Roper
Brother elects to resign or retire voluntarily prior to the expiration of the
original term of his employment agreement, he is required (except in the event
of death or disability) to provide at least six months' prior written notice to
Ropak of the date of his voluntary retirement or resignation. Failure to provide
six months' prior notice will relieve Ropak from liability to pay any incentive
bonuses not previously paid to the Roper Brother who elected to retire or resign
without the requisite prior notice.
Each Roper Brother is entitled while employed to receive fringe benefits
comparable to those generally available to all employees of Ropak, health
insurance covering the Roper Brother and his spouse under Ropak's existing
health plan or a comparable health insurance plan, the right of participation in
Ropak's 401(k) retirement savings plan or a comparable retirement plan,
continuation by Ropak of premium payments on one million dollar life insurance
policies for the Roper Brother as presently constituted, and payment by Ropak
following retirement or in the event of pre-retirement death or employment
severance of benefits provided by the Ropak Supplemental Benefits Plan described
below. In the case of Messrs. Robert and Richard Roper, Ropak will continue to
cover the Roper Brother and his spouse under Ropak's existing or a comparable
health plan at no cost to the Roper Brother until he attains the age of 65,
notwithstanding termination of employment for any reason prior to attaining that
age.
INDEMNIFICATION PROVISIONS
Ropak's certificate of incorporation in the State of Delaware (the
"Charter") contains certain provisions permitted under the Delaware General
Corporation Law relating to the liability of directors. These provisions
eliminate a director's liability for monetary damages for a breach of fiduciary
duty, except in certain circumstances involving wrongful acts or acts or
omissions which involve intentional misconduct or a knowing violation of law.
Ropak's Charter also contains provisions providing indemnification to Ropak's
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law.
In January 1995, Ropak amended its ByLaws and entered into indemnification
agreements with each of its directors. These agreements and the ByLaw amendments
confirm that Ropak agrees to indemnify its existing and former directors to the
maximum extent permitted by the Delaware General Corporation Law against
liabilities, including related attorneys' fees and other costs of defense,
arising out of acts or omissions on the part of the individual in his capacity
as a director, agent or fiduciary of Ropak. The obligation of Ropak to advance
expenses under this commitment is subject to the condition that if a final
judicial determination is made to the effect that the individual is not
permitted to be so indemnified under applicable law, Ropak will be entitled to
be reimbursed for all amounts paid. If the individual director is required to
give evidence by way of deposition or as a witness at trial, Ropak has agreed to
compensate the individual director at a per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial, but has no obligation to compensate the individual for time otherwise
devoted to preparation as a witness.
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(c) The following summarizes information as to certain material contracts,
agreements, arrangements and understandings, and any actual or potential
conflicts of interest, between Ropak or its affiliates, on the one hand, and
LINPAC or its executive officers, directors or affiliates, on the other hand.
RECENT EVENTS -- CHANGE IN CONTROL
OPTION AGREEMENT AND PREVIOUS PROPOSED MERGER OFFERED BY LINPAC;
REVIEW BY SPECIAL COMMITTEE AND WITHDRAWAL OF PROPOSED MERGER OFFER
LINPAC owns 2,263,526 shares of Ropak's Common Stock, which represent 51.6%
of the total shares currently outstanding and entitled to vote. LINPAC also owns
$5.2 million in redeemable preferred shares of Ropak's Canadian subsidiary that
are exchangeable without any additional payment, in whole or in part at the
option of the holder, into Common Stock at the rate of $9.00 U.S. per share
(i.e., nonvoting preferred shares convertible into a total of 577,777 shares of
Common Stock).
LINPAC has had a limited trading relationship with Ropak for more than 10
years and LINPAC purchased 366,032 shares of Common Stock in a private
transaction with an institutional investor in June 1992. David A. Williams, the
Managing Director of LINPAC, has served as a director of Ropak since October
1992. See also "Changes in Board of Directors" below.
The Option Agreement and Proposed Merger
On September 28, 1994, Ropak announced that three of its executive offices,
directors and principal stockholders, William H. Roper, Robert E. Roper and C.
Richard Roper, together with their spouses and certain family trusts under their
control (collectively, the "Roper Family"), had entered into an agreement with
LINPAC dated September 25, 1994 (the "Option Agreement"). The Option Agreement
granted LINPAC an option, exercisable at any time through the close of business
on February 28, 1995, to purchase up to 985,520 shares of Ropak's Common Stock
("Roper Shares") owned by the Roper Family. If all of that option had been
exercised, LINPAC also received an option to purchase up to 132,000 shares of
Common Stock covered by stock options ("Roper Options") held by three members of
the Roper Family. For convenience of reference, the options granted to LINPAC
are collectively referred to as the "LINPAC Purchase Option". The LINPAC
Purchase Option covered shares then representing approximately 25.2% of Ropak's
voting capital stock (assuming exercise by LINPAC of the Roper Options). The
Option Agreement further provided that on or prior to February 28, 1995, the
Roper Family had the right and option (the "Roper Sale Option") to require that
LINPAC purchase all of the Roper Shares and Roper Options.
During the term of the Option Agreement, LINPAC held proxies to vote all
Common Stock owned by the Roper Family, which included all shares covered by the
LINPAC Purchase Option plus 7,318 shares of Common Stock held by C. Richard
Roper as custodian for his children. With certain exceptions, the proxies did
not permit LINPAC (i) to vote for the election of any person as a director of
Ropak not nominated by Ropak's current directors, (ii) to seek the removal of
any of Ropak's current directors, (iii) to call a special meeting of Ropak's
stockholders (other than a stockholders' meeting called for the purpose of
seeking approval of a proposed merger of Ropak with a wholly-owned subsidiary of
LINPAC), or (iv) to seek to take any action by means of a written consent of
Ropak's stockholders.
LINPAC was required by the Option Agreement to present an offer to Ropak's
Board, containing terms and conditions summarized in the Option Agreement, to
acquire the interests of all Ropak's Common stockholders in a proposed merger
for a cash price of $10.50 per share of Ropak Common Stock (the "Proposed
Merger"). The Proposed Merger was formally presented to Ropak for consideration
by LINPAC on October 7, 1994.
Had the Proposed Merger been consummated, the Option Agreement required
that William H. Roper, Robert E. Roper and C. Richard Roper would remain in
Ropak executive management positions at compensation rates specified in the
Option Agreement for minimum periods ranging from one to four years after
completion of the Proposed Merger. In each case, the Option Agreement also
required seven year non-competition covenants after eventual termination of full
time employment with additional payments to each of
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the three Roper executives over six years after termination of employment at
$220,000 per individual per annum.
The option exercise price for both the LINPAC Purchase Option and the Roper
Sale Option was $14.75 per share, a premium of $4.25 per share to the Proposed
Merger price of $10.50 per share. Ropak has been advised by the Roper Family and
LINPAC that this premium was intended to compensate Roper Family members for
prospective loss of employment and non-competition compensation after 1995,
discounted to present value, if the Proposed Merger could not be successfully
completed by February 28, 1995. This premium would have been refunded in certain
circumstances if the Roper Brothers obtained employment or noncompetition
benefits through another transaction. Had the Proposed Merger been successfully
completed, Roper Family members would have received $10.50 per share cash
consideration contemplated for all Ropak stockholders by the Proposed Merger,
plus their employment and non-competition agreements.
Review by Special Committee and Related Matters
A special committee of independent directors of Ropak's Board was formed
effective on September 30, 1994 to review and evaluate the Proposed Merger
offered by LINPAC and to make recommendations to Ropak's Board. Members of the
special committee included then directors Douglas H. MacDonald, John H. Stafford
and Terry L. Nagelvoort (the "Special Committee"). The Special Committee
retained independent legal counsel and an independent investment banker to
advise the Special Committee in connection with its review of the Proposed
Merger and its evaluation of the $10.50 per share price offered by LINPAC. Under
a letter agreement dated November 8, 1994, the Special Committee retained the
investment banking firm of Wertheim Schroder & Co. Incorporated ("Wertheim
Schroder") to advise the Special Committee in this process. The terms of this
engagement provided for a fee payable to Wertheim Schroder of $200,000 for its
services plus $50,000 payable at the closing, or upon termination, of the
Proposed Merger. The letter agreement further provided that if Ropak elected to
pursue a business combination with an entity other than LINPAC prior to June 30,
1995, Wertheim Schroder would receive a contingent fee equal to 1.25% of the
aggregate consideration received by Ropak and its stockholders less any fees
previously paid to Wertheim Schroder under the letter agreement. The agreement
provides that Ropak will indemnify Wertheim Schroder and its controlling persons
against certain liabilities including, among others, liabilities under the
Federal securities laws.
On December 1, 1994, Ropak's Board was advised the Special Committee had
determined LINPACs' price to acquire Ropak in the Proposed Merger at a $10.50
per share to be inadequate. The Board was informed that the Special Committee
had received a confidential report of Wertheim Schroder dated November 29, 1994
in which Wertheim Schroder had expressed a minimum to a maximum range that it
believed would be fair to Ropak stockholders and informed the Board the proposed
price of $10.50 per share was below that range. Neither the confidential report
prepared for the Special Committee by Wertheim Schroder nor the minimum to
maximum price range recommended by Wertheim Schroder were disclosed at that time
to the Board or to representatives of Ropak, other than the Special Committee.
In light of the Special Committee's determination, the Board authorized the
Special Committee to consider and take certain appropriate actions in the best
interests of the stockholders of Ropak, but refused the Special Committee's
request (except with prior approval of a majority of the full Board) for
authority to adopt or take actions to adopt a shareholder rights plan, commonly
referred to as a "poison pill", or for other authority to issue Ropak securities
with dilutive effect to the interests of other stockholders.
The Special Committee, by a letter agreement dated December 13, 1994,
amended its previous engagement letter with Wertheim Schroder. That amendment
confirmed Wertheim Schroder had been retained by the Special Committee to
represent the Special Committee with respect to a sale of Ropak whether such a
transaction was a merger, sale of assets or sale of stock and whether
consummated with LINPAC or any other party. The compensation arrangement was
amended to delete the contingent fee for such a transaction equal to 1.25% of
the aggregate consideration received by Ropak and its stockholders less any fees
previously paid to Wertheim Schroder under the November 8, 1994 agreement. In
lieu thereof, the amendment provided Wertheim Schroder would receive a
contingent fee equal to 5% of any consideration
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received by Ropak and its stockholders to the extent such consideration exceeded
a base amount under a formula relating to the Company's existing capitalization
at $10.50 per share, less a credit for other fees previously paid Wertheim
Schroder of $10,000 for each $0.50 increment over the $10.50 per share base
amount up to a maximum credit of $50,000.
LINPAC reported that during the period from September 30, 1994 (after the
Proposed Merger was publicly announced) through November 29, 1994, it purchased
469,250 additional shares of Ropak's Common Stock not covered by the Option
Agreement in open market and private transactions and also purchased, in a
private transaction with an unaffiliated third party, preferred shares of Ropak
Canada Inc. exchangeable at the holder's option for approximately 577,777 shares
of Ropak Common Stock. In a series of standstill commitments made during the
month of December 1994, LINPAC agreed with the Special Committee that LINPAC
would not acquire additional shares of Ropak's capital stock from December 2,
1994 through December 22, 1994.
On December 22, 1994, following several meetings of both the Special
Committee and the full Board, the offer by LINPAC to enter into the Proposed
Merger was withdrawn. In view of the withdrawal of that offer and the absence of
any competitive offers from third parties requiring consideration, a majority of
the Board voted on December 22, 1994 to disband the Special Committee by a vote
of four directors in favor and three directors (those on the Special Committee)
opposed. Ropak was advised at that time LINPAC intended to continue to evaluate
its options as to its equity position in Ropak.
In January 1995, special counsel for the Special Committee delivered to
counsel for Ropak and the Roper Brothers a copy of the confidential report dated
November 29, 1994 prepared for the Special Committee by Wertheim Schroder and
minutes of proceedings of the Special Committee. The confidential report
prepared for the Special Committee concluded that Wertheim Schroder deemed a
range of $12.50 to $13.50 per share of Common Stock to be fair from a financial
point of view to the stockholders of Ropak other than LINPAC and members of the
Roper Family. A copy of the confidential report dated November 29, 1994 prepared
for the Special Committee by Wertheim Schroder is filed as Exhibit 7 to this
Statement.
CHANGES IN BOARD OF DIRECTORS
On January 23, 1995, Messrs. Terry L. Nagelvoort and John H. Stafford,
members of the former Special Committee, resigned as members of the Board. Ropak
did not receive a letter or other communication from these individuals which
would indicate that their resignations resulted from a disagreement with Ropak
on any matter relating to Ropak's operations, policies or practices.
At a meeting of the Board held on January 26, 1995, the Board expanded the
authorized number of directors from seven to nine members. To fill four
vacancies on the Board resulting from the resignations of Messrs. Nagelvoort and
Stafford and the expansion of the Board by two members, four nominees of LINPAC
were elected to the Board effective as of February 1, 1995. The new directors
include Messrs. John L. Doughty, Robert A. Lang, Nigel V. Roe and John Thorp,
all of whom are executives of LINPAC or its affiliated U.S. subsidiary, LINPAC
Inc.
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With the election of these directors, Ropak's directors and executive
officers currently are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITIONS
------------------------- ---- ----------------------------------------
<S> <C> <C>
William H. Roper 66 Chairman and Chief Executive Officer;
Director
Robert E. Roper 62 President; Director
C. Richard Roper 59 Vice President and Secretary; Director
James R. Connell 57 Vice President, Materials Handling Group
James R. Dobell 45 Vice President, Canadian Container Group
Ronald W. Cameron 60 Vice President -- Finance, Treasurer and
Chief Financial Officer
John L. Doughty 51 Director
Robert Alexander Lang 52 Director
Douglas H. MacDonald 69 Director
Nigel V. Roe 52 Director
John Thorp 49 Director
David A. Williams 48 Director
</TABLE>
William H. Roper has served as the Chief Executive Officer of Ropak since
June 1979 and as Chairman of its Board of Directors since August 1979. Prior to
joining Ropak in 1979, he was employed as an executive in the plastic container
industry for more than 10 years.
Robert E. Roper has served Ropak as its President and a director since
January 1978 and currently acts as its Chief Operating Officer, concentrating on
management of United States container operations. Prior to co-founding Ropak in
1978, he was employed as an executive in the plastic container industry for
approximately 10 years.
C. Richard Roper has served Ropak as an executive officer and director
since January 1978 and currently serves as Executive Vice President and its
corporate Secretary, concentrating on design and engineering and management of
raw materials purchases. Prior to co-founding Ropak in 1978, he was employed as
an executive in the plastic container industry for approximately 10 years.
James R. Connell has been employed as a Vice President of Ropak since
February 1985 since Ropak's acquisition of Capilano Plastics Company Ltd. and
Capilano Industries, Inc. (the "Capilano Companies"). Prior to his employment by
Ropak, Mr. Connell was employed in various executive capacities by the Capilano
Companies for approximately 11 years. From 1961 to 1972 he was employed in
various marketing positions, including that of Marketing Manager, for IBM
Canada, Ltd. Mr. Connell resides in California and is a citizen of Canada.
James R. Dobell has served as a Vice President of Ropak since June 1986. He
was employed by Ropak in February 1985 upon its acquisition of the Capilano
Companies. Mr. Dobell was employed in various management capacities by the
Capilano Companies for approximately 8 years prior thereto.
Ronald W. Cameron has served as Vice President -- Finance and Treasurer of
Ropak since February 1985. He was employed upon Ropak's acquisition of the
Capilano Companies in 1985. Prior to his employment by Ropak, Mr. Cameron was
employed as the chief financial officer of the Capilano Companies for
approximately nine years. From 1973 to 1976 he was an executive with Hugh Russel
Ltd. and its subsidiary, Russelsteel Ltd., Montreal, Quebec, and he was a
financial officer with Hector Steel Industries, Calgary from 1967 to 1973. Mr.
Cameron is a chartered accountant.
John L. Doughty was elected a director of Ropak on February 1, 1995. Mr.
Doughty is employed as Financial Director of LINPAC, Birmingham, England, and
has served in that capacity since 1983. LINPAC is a wholly-owned subsidiary of
LINPAC Group Limited, a privately-held company founded in 1959 and the second
largest packaging company in the United Kingdom operating with corrugated,
plastics packaging and industrial packaging divisions. LINPAC Group Limited
manufactures a wide variety of plastic, paper and metal packaging products at
approximately 50 manufacturing facilities, including eight in the United States,
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with over 7,000 employees worldwide. LINPAC acts as a distributor in Europe of
Ropak's materials handling bins and owns a majority of Ropak's issued and
outstanding capital stock.
Robert A. Lang was elected a director of Ropak on February 1, 1995. Mr.
Lang is employed as Chief Operating Officer and Vice President of LinPac Inc., a
United States subsidiary of LINPAC, and has served in that position for more
than nine years. Mr. Lang has also served as a director of LINPAC Group Limited
for approximately one year.
Douglas H. MacDonald was elected a director of Ropak in May 1990. He has
acted from time to time as a consultant to Ropak since February 1985 when he and
others sold the Capilano Companies to Ropak. For more than five years prior to
February 1985, Mr. MacDonald was an executive officer and principal stockholder
of the Capilano Companies.
Nigel V. Roe was elected a director of Ropak on February 1, 1995. Mr. Roe
is employed as Secretary/Treasurer of LinPac Inc., a United States subsidiary of
LINPAC. Mr. Roe has served in that position for more than 15 years.
John Thorp was elected a director of Ropak on February 1, 1995. Mr. Thorp
has served as a director of LINPAC since 1993. Prior to serving as a director of
LINPAC, he was general manager of LINPAC's GPG Dunstable plant.
David A. Williams was elected a director of Ropak in October 1992. Mr.
Williams is the Managing Director and Chief Executive Officer of LINPAC, and has
served in that capacity since 1982. He also serves as a director of LINPAC Group
Limited, the parent of LINPAC.
Ropak's certificate of incorporation in the State of Delaware provides that
its Board of Directors shall consist of not less than three nor more than 12
directors, with the exact number to be fixed by the Board. The certificate of
incorporation also provides for a classified Board of Directors, meaning that
the Board is divided into three classes designated Class I, Class II and Class
III, with each class to be as nearly equal in number as possible. Generally, the
members of each class are elected for a term of three years and until their
successors are elected and qualified, with one of the three classes of directors
to be elected each year. The Board of Directors has fixed the number of
directors at nine, with three directors in each of Class I, Class II and Class
III. The term of office of Class I directors, including Messrs. William H.
Roper, Robert A. Lang and John L. Doughty, will expire at the 1997 annual
meeting of stockholders. The term of office of Class II directors, including
Messrs. Robert E. Roper, Nigel Roe and David A. Williams, will expire at the
1995 annual meeting of stockholders. The term of office of Class III directors,
including Messrs. C. Richard Roper, Douglas H. MacDonald and John Thorp, will
expire at the 1996 annual meeting of stockholders.
Officers serve at the discretion of the Board of Directors. Except for
William H. Roper, Robert E. Roper and C. Richard Roper, who are brothers, there
are no family relationships between any of Ropak's directors and executive
officers. There are no arrangements or understandings between any director and
any other person pursuant to which any person was elected or nominated as a
director except that Messrs. John L. Doughty, Robert A. Lang, Nigel Roe, John
Thorp and David A. Williams were all designated for election as directors by
LINPAC.
SUBSEQUENT EVENTS
Based upon LINPAC's reports filed with the Securities and Exchange
Commission, LINPAC purchased 435,406 additional shares of the Company's Common
Stock in open market and private transactions during the period from December
23, 1994 (after the expiration of its standstill commitments) through January
17, 1995. On February 10, 1995, LINPAC purchased 7,318 shares for $10.50 per
share in a private transaction with C. Richard Roper as custodian for his
children.
Under an agreement dated February 20, 1995, the Roper Family members and
LINPAC agreed to terminate the Option Agreement described above. LINPAC
purchased 985,520 shares of Ropak's Common Stock from the Roper Family members
on February 27, 1995 at $10.50 per share and paid $666,006 to the three Roper
Brothers executives in consideration of the cancellation of their stock options
covering 132,000
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shares. The consideration paid for cancellation of the stock options represented
the difference between $10.50 per share less the applicable option exercise
price. Each of the three Roper Brothers concurrently entered into long-term
employment and non-competition agreements with Ropak effective as of January 1,
1995 authorized by the Board which are guaranteed by LINPAC. See "Employment
Agreements with Roper Brothers" above.
As a condition to the sale of their shares, the Roper Family members
required LINPAC to agree it would commence on or before April 30, 1995 or at the
earliest practicable date thereafter consistent with applicable securities laws
and regulations, a tender offer or institute other actions to offer all other
Ropak stockholders an opportunity to sell their Common Stock for a cash price of
not less than $10.50 per share or, in the alternative, of voting on a proposed
merger transaction that would provide for payment of a cash price of not less
than $10.50 per share if approved by the requisite vote of Ropak stockholders.
The obligations of LINPAC under this agreement were to be suspended (i) if
litigation or other legal or administrative proceedings were instituted that
prevented LINPAC from such action or materially adversely affected LINPAC's
ability to proceed with such action, or (ii) if there occurred any event or
events then unanticipated by the parties that in the reasonable judgment of the
parties materially and adversely affected the valuation of Ropak.
Based upon information known to Ropak's management, as of March 20, 1995
LINPAC owned 2,263,526 shares of Ropak's Common Stock (or approximately 51.6% of
the total 4,386,162 shares outstanding) plus preferred shares of Ropak Canada
Inc. exchangeable at the holder's option for approximately 577,777 shares of
Ropak's Common Stock. Assuming full exchange of Ropak Canada's preferred stock
into 577,777 shares of Ropak's Common Stock, LINPAC's beneficial pro forma
ownership of an aggregate of 2,841,303 shares of Ropak's Common Stock would
represent approximately 57.2% of the pro forma outstanding shares (assuming no
other outstanding options are exercised). In addition to exchange rights of
Ropak Canada's preferred stock, there are outstanding stock options covering a
total of 218,950 shares of Ropak's Common Stock as of the date of this
Statement.
ITEM 4. THE SOLICITATION OR RECOMMENDATION
At a meeting held on March 21, 1995, Ropak's Board of Directors (the
"Board") met to consider the Offer and the recommendation of Ropak's Board.
The Board determined that the Board as a whole is unable to take a position
with respect to the Offer because a majority of the Board, i.e. five of its nine
incumbent directors, are employees of LINPAC or its affiliates, the entity
making the Offer. The Board members employed by LINPAC or its affiliates include
John L. Doughty, Robert A. Lang, Nigel V. Roe, John Thorp and David A. Williams.
Three of the Board members, i.e. Messrs. William H. Roper, Robert E. Roper
and C. Richard Roper, may be deemed to have a potential conflict of interest in
making any recommendation as to the Offer because they have each sold all of
their equity interests in Ropak to LINPAC at $10.50 per share of Common Stock
(see "Recent Events -- Change in Control" in Item 3 above) and concurrently
entered into employment agreements with Ropak which are guaranteed by LINPAC
(see "Employment Agreements with Roper Brothers" in Item 3 above). The Roper
Brothers have individually advised the Board that they each believe the Offer is
fair to the stockholders of Ropak and recommend that stockholders give favorable
consideration to accepting the Offer.
The remaining Board member, Douglas H. MacDonald, has advised the Board
that he expresses no opinion as to the Offer and is remaining neutral. Mr.
MacDonald was a member of the former Special Committee of the Board that
previously advised the Board it found the Merger Proposal price of $10.50 per
share to be inadequate and Mr. MacDonald has confirmed that he concurred with
other members of the Special Committee as to that conclusion. Mr. MacDonald has
also informed the Board that he intends to accept the Offer as to all 7,260
shares of Common Stock beneficially owned by him.
8
<PAGE> 10
REASONS OF THE ROPER BROTHERS IN SUPPORTING THE OFFER
The Roper Brothers have advised the Board that they each believe LINPAC's
Offer is fair to the stockholders of Ropak and recommend that stockholders
favorably consider accepting LINPAC's Offer. In reaching their conclusion, the
Roper Brothers analyzed a variety of factors. Their statement in support of the
Offer is set forth in a letter to Ropak's stockholders dated March 27, 1995 from
William H. Roper, a copy of which is filed as Exhibit 2 to this Statement,
reading in pertinent part as follows:
"At a meeting held on March 21, 1995, Ropak's Board of Directors (the
"Board") met to consider LINPAC's tender offer. The Board is heavily
weighted with parties having relationships with LINPAC and, therefore, did
not take a position either favorable or unfavorable.
"Messrs. William H. Roper, Robert E. Roper and C. Richard Roper (the
"Roper Brothers") have each sold all of their equity interests in Ropak to
LINPAC on February 27, 1995 at $10.50 per share of common stock and
concurrently entered into employment agreements with Ropak that are
guaranteed by LINPAC. For further information as to these transactions, we
refer you to the proxy materials enclosed.
"The Board and the Roper Brothers believe that you, a Ropak
stockholder, must be given the opportunity to come to your own independent
decision as to whether acceptance of LINPAC's offer is in your best
interests and to then act accordingly. The Roper Brothers believe the
LINPAC tender offer at $11.00 per share is fair and recommend that
stockholders favorably consider its acceptance.
"It is significant that several stockholders of Ropak have accepted
prices in privately-negotiated transactions ranging from $10.50 per share
to $11.00 per share for sales of their equity interests in Ropak common
stock including institutional investors (such as Fidelity Management &
Research Co., Harvest Management Group, Bear Stearns Securities Corp. and
Chesapeake Partners), the Roper Brothers and a former director of Ropak who
served as Chairman of the Special Committee which found LINPAC's previous
proposal to be inadequate. Equally as significant is the indicated
willingness by other officers, directors and senior management to accept
the LINPAC tender offer of $11.00 per share.
"LINPAC currently owns 51.6% of the total outstanding common stock,
plus preferred shares of a Canadian subsidiary exchangeable for additional
shares that offer LINPAC the option of increasing its total beneficial
ownership to 57.2% before any additional shares are purchased through its
tender offer.
"It is LINPAC's present intent to cause Ropak to make an application
for termination of the registration of Ropak's common stock on the Nasdaq
National Market and under the Securities Exchange Act of 1934 after the
purchase of tendered shares if the requirements for termination of such
registrations are satisfied.
"LINPAC has stated it does not intend to sell its equity interest in
Ropak and would not currently approve any proposed business combination
involving Ropak and another third party. It is not likely that another
suitor would enter the bidding in light of LINPAC's controlling position.
"I again re-emphasize the Board of Directors as a whole makes no
recommendation to any stockholder whether to tender or refrain from
tendering their shares. Stockholders must make their own decision and
should consult their individual financial advisers.
"I do not hesitate, however, to personally recommend your acceptance
of this offer. The $10.50 per share price was the result of strenuous
negotiations in all of our best interests. LINPAC has now improved this by
offering $11.00 per share timed so every stockholder has direct access to
the most current financial information available."
ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED
Ropak does not presently intend to employ or retain any person on its
behalf to make solicitations or recommendations to security holders of Ropak in
connection with the Offer. Officers of Ropak may advise employees and
stockholders of Ropak of the Offer by mail, E-mail, telephone or personal
interview. Such persons will receive no additional compensation for these
activities. Brokerage houses and other nominees,
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<PAGE> 11
fiduciaries and custodians nominally holding shares of Common Stock of record
will be requested to forward materials concerning the Offer to the beneficial
owners of such shares, and will be reimbursed by Ropak or LINPAC for their
reasonable charges and expenses in connection therewith.
ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES
(a) The following transactions in securities of Ropak were effected during
the past 60 days by executive officers, directors and affiliates of Ropak:
On February 10, 1995, LINPAC purchased 7,318 shares of Common Stock
for price of $10.50 per share in a private transaction with C. Richard
Roper in his capacity as custodian for two of his children. C. Richard
Roper is an executive officer and director of Ropak
On February 27, 1995, LINPAC purchased 985,520 shares of Common Stock
for the price of $10.50 per share from William H. Roper, Robert E. Roper,
C. Richard Roper, their spouses and certain family trusts affiliated with
them. William H. Roper, Robert E. Roper and C. Richard Roper are each
executive officers and directors of Ropak. The selling stockholders and
number of shares sold by each of them in this transaction were as follows:
<TABLE>
<S> <C>
William H. Roper and/or Ruth S. Roper................ 225,134 shares
William H. Roper, Trustee of the Roper Family
Trust.............................................. 79,395 shares
Robert E. Roper and/or Nancy L. Roper................ 252,554 shares
Robert E. Roper, Trustee of the Roper Family Trust... 79,394 shares
C. Richard Roper and/or Margo J. Roper............... 269,949 shares
C. Richard Roper, Trustee of the Roper Family
Trust.............................................. 79,394 shares
</TABLE>
On February 27, 1995, William H. Roper, Robert E. Roper and C. Richard
Roper each agreed to the cancellation of certain stock options held by them
under Ropak's 1991 Stock Option Plan. Each of these individuals received
from LINPAC a payment equal to $5.0455 per share for the shares covered by
the cancelled stock options, representing the difference between $10.50 per
share less the option exercise price of $5.4545 per share in consideration
of the cancellation of these options.
On March 6, 1995, Jet Partners, an affiliate of Terry L. Nagelvoort,
sold to Ropak for cancellation all rights to purchase 36,602 1/2 shares of
Common Stock represented by certain common stock purchase warrants issued
by Ropak in 1985 and expiring on June 30, 1995. Terry L. Nagelvoort is a
former director of Ropak and resigned his position as a director on January
23, 1995. The price paid by Ropak for the cancellation of these warrants
was $5.5359 per warrant ($202,628 in total), representing the difference
between $11.00 per warrant less the warrant exercise price of $5.4641 per
share.
(b) To the best knowledge of Ropak, the only directors and executive
officers of Ropak who currently own outstanding shares of Common Stock and stock
options, other than through participation in Ropak's 401(k) Savings Incentive
Plan, include the following persons. Ropak has been advised that each of these
individuals intends to tender all of the Common Stock and stock options listed
in the following table to LINPAC pursuant to the Offer.
<TABLE>
<S> <C>
Douglas H. MacDonald, Director...................... 7,260 shares(1)
James R. Connell,
Vice President, Materials Handling Group.......... 39,802 shares(2)
27,390 options(3)
James R. Dobell,
Vice President, Canadian Container Group.......... 13,095 shares(4)
38,390 options(5)
Ronald W. Cameron,
Vice President -- Finance, Chief Financial
Officer........................................... 25,251 shares(6)
30,890 options(7)
</TABLE>
---------------
(1) Represents shares owned by Admac Holdings Ltd., a family corporation
controlled by Mr. MacDonald.
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<PAGE> 12
(2) Includes 17,800 shares directly owned by Mr. Connell plus 22,002 shares
owned by his spouse.
(3) Includes options expiring on May 17, 1995 covering 10,890 shares, options
expiring on February 19, 1996 covering 11,500 shares, and options expiring
on February 7, 1999 covering 5,000 shares, all of which are fully vested as
of January 26, 1995. The expiration date of the options expiring on May 17,
1995 may be accelerated upon 30 days' prior notice at the option of Ropak if
the fair market value of the Common Stock equals or exceeds $13 7/8.
(4) Includes 12,840 shares directly owned by Mr. Dobell plus 255 shares owned by
his spouse.
(5) Includes options expiring on May 17, 1995 covering 10,890 shares and options
expiring on February 19, 1996 covering 27,500 shares, all of which are fully
vested as of January 26, 1995. The expiration date of the options expiring
on May 17, 1995 may be accelerated upon 30 days' prior notice at the option
of Ropak if the fair market value of the Common Stock equals or exceeds
$13 7/8.
(6) Represents shares directly owned by Mr. Cameron.
(7) Includes options expiring on May 17, 1995 covering 10,890 shares, options
expiring on February 19, 1996 covering 17,500 shares, and options expiring
on February 7, 1999 covering 2,500 shares, all of which are fully vested as
of January 26, 1995. The expiration date of the options expiring on May 17,
1995 may be accelerated upon 30 days' prior notice at the option of Ropak if
the fair market value of the Common Stock equals or exceeds $12 1/4.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT
(a) Ropak is not at present engaged in any negotiations in response to the
Offer which relates to or would result in (1) an extraordinary transaction such
as a merger or reorganization involving Ropak or any subsidiary of Ropak, (2) a
purchase, sale or transfer of a material amount of assets by Ropak or any
subsidiary of Ropak, (3) a tender offer for, or other acquisition of, securities
by or of Ropak, or (4) any material change in the present capitalization or
dividend policy of Ropak.
(b) There are no transactions, board resolutions, agreements in principle
or signed contracts to which Ropak is a party in response to the Offer which
relate to or would result in one or more of the matters referred to in clauses
(1), (2), (3) or (4) of paragraph (a) of this Item 7.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
INTENTIONS OF LINPAC
The Offer to Purchase states that it is the present intent of LINPAC to
cause Ropak to make an application for the termination of the registration of
Ropak's Common Stock on the Nasdaq National Market and under the Securities
Exchange Act of 1934, as amended, as soon as practicable after the purchase of
validly tendered shares pursuant to the Offer if the requirements for
termination of such registration are met. Requirements of the National
Association of Securities Dealers, Inc. ("NASD") for continued listing in the
Nasdaq National Market include, among other, that the issue have at least
200,000 publicly held shares held by at least 400 stockholders or 300
stockholders of round lots, with a market value of at least $1 million. If these
standards are not met, the Common Stock may nevertheless continue to be quoted
on the Nasdaq "additional list" or in one of the "local lists". If the number of
holders of Common Stock were to fall below 300 stockholders or if the number of
publicly held shares were to fall below 100,000 or if there were not at least
two registered and active market makers for the Common Stock, the NASD rules
provide that the Common Stock would no longer be qualified for Nasdaq reporting
and Nasdaq would cease to provide quotations. If the Common Stock no longer
meets the requirements of the NASD for quotations in the Nasdaq system, it is
probable the Common Stock would no longer constitute "margin securities" for
purposes of regulations of the Federal Reserve Board and therefore could no
longer be used as collateral for margin loans made by broker/dealers.
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<PAGE> 13
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
The Offer to Purchase indicates that following the completion of the Offer,
LINPAC will consider all of its alternatives, including acquiring Common Stock
not tendered through the Offer through purchases or a merger in which Common
Stock not held by LINPAC would be converted into cash.
Ropak is subject to the provisions of Section 203 of the Delaware General
Corporation Law ("DGCL"). Section 203 prohibits a publicly-held Delaware
corporation from engaging in a "business combination" as defined with an
"interested stockholder" as defined for a period of three years after the date
of the transaction in which the person became an interested stockholder unless
the business combination is approved in a prescribed manner. A "business
combination" for this purpose includes mergers, asset sales, stock sales and
other transactions resulting in a disproportionate financial benefit to the
interested stockholder. Subject to certain exceptions, an "interested
stockholder" is a person who, together with affiliates and associates, owns, or
within three years did own, 15% of a publicly-held Delaware corporation's
outstanding voting stock.
LINPAC became an "interested stockholder" in Ropak under Section 203 of the
Delaware General Corporation Law on September 25, 1994 as a result of the Option
Agreement described in Item 3 of this Statement. Under Section 203 as currently
in effect, prior to September 25, 1997 any merger proposed by LINPAC would
require approval at a meeting of Ropak's stockholders by the affirmative vote of
at least 66 2/3% of the Common Stock not owned by LINPAC. After September 25,
1997, LINPAC could effect a merger without a vote of Ropak stockholders pursuant
to the short form merger provisions of the Delaware General Corporation Law if
LINPAC then owns 90% or more of the outstanding Common Stock. If LINPAC then
owned less than 90% of the outstanding Common Stock, any merger after September
25, 1997 would require approval by a vote of the holders of a majority of the
outstanding voting stock.
ROPAK CHARTER PROVISIONS AS TO CERTAIN TRANSACTIONS WITH AN INTERESTED
STOCKHOLDER
Article NINTH of Ropak's certificate of incorporation in the State of
Delaware (the "Charter") includes certain minimum price and procedural
requirements (the "Fair Price Provisions") in connection with certain Business
Combinations (as defined in the Fair Price Provisions) with an Interested
Stockholder (as defined in the Fair Price Provisions) of Ropak. The Offer by
LINPAC is not subject to the Fair Price Provisions, among other reasons because
it does not involve a "Business Combination" as that term is defined. As long as
LINPAC owns in excess of 5% of the outstanding Common Stock, LINPAC will be
considered an Interested Stockholder for purposes of the Fair Price Provisions.
Depending on the circumstances, the Fair Price Provisions might apply to certain
business combinations involving Ropak that LINPAC may consider or propose in the
future. Ropak cannot predict what further corporate transactions, if any, LINPAC
may propose after the Offer has been completed.
A "Business Combination" for purposes of the Fair Price Provisions includes
the following transactions: (1) a merger or consolidation of Ropak or any of its
subsidiaries with an Interested Stockholder [or any person who is then or
thereafter becomes an Affiliate or Associate (as defined) of an Interested
Stockholder], (2) the sale or other disposition by the company or any of its
subsidiaries of assets valued at $25 million or more if an Interested
Stockholder (or any person who is then or thereafter becomes an Affiliate or
Associate thereof) is a party to the transaction, (3) the issuance of stock or
other securities of Ropak or any of its subsidiaries to an Interested
Stockholder (or any other person who is then or thereafter becomes an Affiliate
or Associate thereof) in exchange for consideration of any kind valued at $25
million or more, (4) the adoption of any plan or proposal for the liquidation or
dissolution of Ropak proposed by or on behalf of an Interested Stockholder (or
any person who is then or thereafter becomes an Affiliate or Associate thereof)
or (5) any reclassification of securities, recapitalization of Ropak, merger or
consolidation of Ropak with any of its subsidiaries or other transaction which
has the effect, directly or indirectly, of increasing the proportionate share of
the outstanding stock (or securities convertible into stock) of any class of
Ropak or any of its subsidiaries beneficially owned by an Interested Stockholder
(or any person who is then or thereafter becomes an Affiliate or Associate
thereof).
The Fair Price Provisions require that in order to complete a Business
Combination, an Interest Stockholder must satisfy certain minimum price and
procedural requirements. These requirements are not
12
<PAGE> 14
applicable, however, to proposed business combinations approved by a majority of
the Continuing Directors (as defined in the Fair Price Provisions) or by holders
of at least 80% of the outstanding Common Stock including Common Stock held by
the Interested Stockholder.
The Continuing Directors include only those members of the Board who are
not affiliated with, or a representative of, an Interested Stockholder and were
directors before an Interested Stockholder became an Interested Stockholder and
any successors to such Continuing Directors who are not affiliated with, or a
representative of, an Interested Stockholder and were recommended by a majority
of the Continuing Directors then on the Board. Five of the nine directors on
Ropak's Board are employees of LINPAC or its subsidiary and thus would not be
considered Continuing Directors for purposes of the Fair Price Provisions. The
current members on Ropak's Board who are Continuing Directors include Messrs.
Douglas H. MacDonald, William H. Roper, Robert E. Roper and C. Richard Roper.
If LINPAC owns at least 80% of the outstanding Common Stock after
completion of the Offer, then LINPAC would have sufficient voting power to
approve either (i) a Business Combination without the necessity of satisfying
the minimum price and procedural requirements of the Fair Price Provisions, or
(ii) an amendment to Ropak's certificate of incorporation to eliminate the Fair
Price Provisions. A copy of the Fair Price Provisions of Ropak's Charter is
filed as Exhibit 60 to this Statement.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<S> <C>
Exhibit 10.1 Proxy Statement of Ropak Corporation dated March 27, 1995 relating to its Annual
Meeting of Stockholders to be held on May 16, 1995, of which pages 3 to 6, pages
11 to 17 and page 19 are incorporated herein by reference.
Exhibit 10.2 Letter dated March 27, 1995 to Stockholders of Ropak Corporation.
Exhibit 10.3 Press Release of Ropak Corporation dated March 21, 1995.
Exhibit 10.4 Agreement dated September 25, 1994 among LinPac Mouldings Ltd., LinPac Mouldings,
Inc., William H. Roper and Ruth Roper, Robert E. Roper and Nancy Roper, C.
Richard Roper and Margo Roper, William H. Roper as Trustee of the Roper Family
Trust, William H. Roper as Trustee of the Roper Family Trust FBO William H.
Roper, Robert E. Roper as Trustee of the Roper Family Trust FBO Robert E. Roper
and/or Children, and C. Richard Roper as Trustee of the Roper Family Trust FBO C.
Richard Roper and/or Children.
Exhibit 10.5 Letter agreement dated November 8, 1994 between the Special Committee of the
Board of Directors of Ropak Corporation and Wertheim Schroder & Co. Incorporated.
Exhibit 10.6 Letter agreement dated December 13, 1994 between the Special Committee of the
Board of Directors of Ropak Corporation and Wertheim Schroder & Co. Incorporated.
Exhibit 10.7 Confidential Presentation dated November 29, 1994 to the Special Committee of the
Board of Directors of Ropak Corporation by Wertheim Schroder & Co. Incorporated.
Exhibit 10.8 Stock Purchase Agreement dated February 10, 1995 between LINPAC Mouldings Limited
and C. Richard Roper as custodian for Cathy Diane Roper.
Exhibit 10.9 Stock Purchase Agreement dated February 10, 1995 between LINPAC Mouldings Limited
and C. Richard Roper as custodian for Robert Richard Roper.
Exhibit 10.10 Stock Purchase Agreement dated February 27, 1995 between LINPAC Mouldings Limited
and William H. Roper, Ruth Roper, Robert E. Roper, Nancy Roper, C. Richard Roper,
Margo Roper, William H. Roper as Trustee, Robert E. Roper as Trustee and C.
Richard Roper as Trustee.
Exhibit 10.11 Side Letter Agreement dated February 27, 1995 between LINPAC Mouldings Limited
and William H. Roper, Ruth Roper, Robert E. Roper, Nancy Roper, C. Richard Roper,
Margo Roper, William H. Roper as Trustee, Robert E. Roper as Trustee and C.
Richard Roper as Trustee.
</TABLE>
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<PAGE> 15
<TABLE>
<S> <C>
Exhibit 10.12 Assignment of Claims dated February 27, 1995 between LINPAC Mouldings Limited and
William H. Roper, Ruth Roper, Robert E. Roper, Nancy Roper, C. Richard Roper,
Margo Roper, William H. Roper as Trustee, Robert E. Roper as Trustee and C.
Richard Roper as Trustee.
Exhibit 10.13 Employment Agreement dated as of January 1, 1995 between Ropak Corporation and
William H. Roper.
Exhibit 10.14 Continuing Guaranty dated February 20, 1995 executed by LINPAC Mouldings Limited
as to Ropak Corporation employment agreement with William H. Roper.
Exhibit 10.15 Employment Agreement dated as of January 1, 1995 between Ropak Corporation and
Robert E. Roper.
Exhibit 10.16 Continuing Guaranty dated February 20, 1995 executed by LINPAC Mouldings Limited
as to Ropak Corporation employment agreement with Robert E. Roper.
Exhibit 10.17 Employment Agreement dated as of January 1, 1995 between Ropak Corporation and C.
Richard Roper.
Exhibit 10.18 Continuing Guaranty dated February 20, 1995 executed by LINPAC Mouldings Limited
as to Ropak Corporation employment agreement with C. Richard Roper.
Exhibit 10.19 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
William H. Roper.
Exhibit 10.20 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
Robert E. Roper.
Exhibit 10.21 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and C.
Richard Roper.
Exhibit 10.22 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
Douglas H. MacDonald.
Exhibit 10.23 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
Terry L. Nagelvoort.
Exhibit 10.24 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
John H. Stafford.
Exhibit 10.25 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
David A. Williams.
Exhibit 10.26 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and John L. Doughty.
Exhibit 10.27 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and Robert Alexander Lang.
Exhibit 10.28 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and Nigel Victor David Roe.
Exhibit 10.29 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and John Thorp.
Exhibit 10.30 Ropak Corporation's 1988 Incentive Stock Option Plan, as amended February 24,
1994.
Exhibit 10.31 Ropak Corporation's 1991 Stock Option Plan as amended on February 24, 1994.
Exhibit 10.32 Stock option agreement granted February 19, 1991 to William H. Roper under 1991
Stock Option Plan.
Exhibit 10.33 Letter dated February 27, 1995 executed by William H. Roper agreeing to
cancellation of stock option agreement granted February 19, 1991.
Exhibit 10.34 Stock option agreement granted February 19, 1991 to C. Richard Roper under 1991
Stock Option Plan.
</TABLE>
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<PAGE> 16
<TABLE>
<S> <C>
Exhibit 10.35 Letter dated February 27, 1995 executed by C. Richard Roper agreeing to
cancellation of stock option agreement granted February 19, 1991.
Exhibit 10.36 Stock option agreement granted February 19, 1991 to Robert E. Roper under 1991
Stock Option Plan.
Exhibit 10.37 Letter dated February 27, 1995 executed by Robert E. Roper agreeing to
cancellation of stock option agreement granted February 19, 1991.
Exhibit 10.38 Stock option agreement granted February 19, 1991 to James R. Connell under 1991
Stock Option Plan.
Exhibit 10.39 Stock option agreement granted February 19, 1991 to James R. Dobell under 1991
Stock Option Plan.
Exhibit 10.40 Stock option agreement granted February 19, 1991 to Ronald W. Cameron under 1991
Stock Option Plan.
Exhibit 10.41 Stock option agreement granted May 17, 1990 to James R. Connell under 1988 Stock
Option Plan.
Exhibit 10.42 Stock option agreement granted May 17, 1990 to James R. Dobell under 1988 Stock
Option Plan.
Exhibit 10.43 Stock option agreement granted May 17, 1990 to Ronald W. Cameron under 1988 Stock
Option Plan.
Exhibit 10.44 Stock option agreement granted February 7, 1994 to James R. Connell under 1988
Stock Option Plan.
Exhibit 10.45 Stock option agreement granted February 7, 1994 to Ronald W. Cameron under 1988
Stock Option Plan.
Exhibit 10.46 Common Stock Purchase Warrant dated July 1, 1985 covering 25,000 shares
exercisable at $8.00 per share until June 30, 1990, issued by Ropak Corporation
to Jet Partners.
Exhibit 10.47 Letter agreement dated November 28, 1989 extending expiration date for Jet
Partners Common Stock Purchase Warrant to June 30, 1995.
Exhibit 10.48 Letter dated October 17, 1994 from Ropak Corporation to Jet Partners confirming
adjustments to Common Stock Purchase Warrants resulting from prior stock
dividends.
Exhibit 10.49 Letter agreement dated March 3, 1995 between Ropak Corporation and Jet Partners
for the repurchase of 36,602 1/2 Common Stock Purchase Warrants.
Exhibit 10.50 Ropak Corporation's Supplemental Employee Benefits Plan, as amended and restated
December 1, 1994, together with Supplemental Employee Benefits Agreements dated
October 22, 1987 with the following employees: William H. Roper, Robert E. Roper,
C. Richard Roper, James R. Dobell, Ronald W. Cameron and James R. Connell.
Exhibit 10.51 Trust Agreement under the Ropak Corporation's Supplemental Employee Benefits Plan
dated December 1, 1994 between the Ropak Corporation and Wells Fargo Bank.
Exhibit 10.52 Letter dated March 15, 1995 executed by Douglas H. MacDonald expressing his
intent to tender shares
Exhibit 10.53 Letter dated March 15, 1995 executed by James R. Connell expressing his intent to
tender shares and options
Exhibit 10.54 Letter dated March 15, 1995 executed by James R. Dobell expressing his intent to
tender shares and options
Exhibit 10.55 Letter dated March 15, 1995 executed by Ronald W. Cameron expressing his intent
to tender shares and options
Exhibit 10.56 License Agreement dated December 31, 1979 between Ropak Corporation, William H.
Roper, Robert E. Roper, Charles Richard Roper, Elvere Roper and Ralph A. Miller
as to Ropak Corporation's license of certain trademark, patent and know-how
rights.
Exhibit 10.57 Amendment dated as of November 1, 1985 to License Agreement as to Ropak
Corporation's license of certain trademark, patent and know-how rights.
Exhibit 10.58 Lease dated January 25, 1984 between Ropak Corporation and Sixty-Sixty Limited as
to Ropak Corporation's lease of premises located at 660 South State College
Blvd., Fullerton, California.
Exhibit 10.59 Addendum dated October 31, 1985 to Lease of premises located at 660 South State
College Blvd., Fullerton, California.
Exhibit 10.60 Article NINTH to the Certificate of Incorporation of Ropak Corporation relating
to certain Business Combinations with an Interested Stockholder.
Exhibit 10.61 Section 9 of Article SIXTH to the Certificate of Incorporation of Ropak
Corporation relating to indemnification of directors and officers.
Exhibit 10.62 Article X to the ByLaws of Ropak Corporation relating to indemnification of
directors and officers.
</TABLE>
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<PAGE> 17
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct as of the date thereof.
Dated: March 27, 1995.
ROPAK CORPORATION
By: /s/ WILLIAM H. ROPER
----------------------------
William H. Roper
Chairman of the Board and
Chief Executive Officer
16
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
Exhibit 10.1 Proxy Statement of Ropak Corporation dated March 27, 1995 relating to its Annual
Meeting of Stockholders to be held on May 16, 1995, of which pages 3 to 6, pages
11 to 17 and page 19 are incorporated herein by reference.
Exhibit 10.2 Letter dated March 27, 1995 to Stockholders of Ropak Corporation.
Exhibit 10.3 Press Release of Ropak Corporation dated March 21, 1995.
Exhibit 10.4 Agreement dated September 25, 1994 among LinPac Mouldings Ltd., LinPac Mouldings,
Inc., William H. Roper and Ruth Roper, Robert E. Roper and Nancy Roper, C.
Richard Roper and Margo Roper, William H. Roper as Trustee of the Roper Family
Trust, William H. Roper as Trustee of the Roper Family Trust FBO William H.
Roper, Robert E. Roper as Trustee of the Roper Family Trust FBO Robert E. Roper
and/or Children, and C. Richard Roper as Trustee of the Roper Family Trust FBO C.
Richard Roper and/or Children.
Exhibit 10.5 Letter agreement dated November 8, 1994 between the Special Committee of the
Board of Directors of Ropak Corporation and Wertheim Schroder & Co. Incorporated.
Exhibit 10.6 Letter agreement dated December 13, 1994 between the Special Committee of the
Board of Directors of Ropak Corporation and Wertheim Schroder & Co. Incorporated.
Exhibit 10.7 Confidential Presentation dated November 29, 1994 to the Special Committee of the
Board of Directors of Ropak Corporation by Wertheim Schroder & Co. Incorporated.
Exhibit 10.8 Stock Purchase Agreement dated February 10, 1995 between LINPAC Mouldings Limited
and C. Richard Roper as custodian for Cathy Diane Roper.
Exhibit 10.9 Stock Purchase Agreement dated February 10, 1995 between LINPAC Mouldings Limited
and C. Richard Roper as custodian for Robert Richard Roper.
Exhibit 10.10 Stock Purchase Agreement dated February 27, 1995 between LINPAC Mouldings Limited
and William H. Roper, Ruth Roper, Robert E. Roper, Nancy Roper, C. Richard Roper,
Margo Roper, William H. Roper as Trustee, Robert E. Roper as Trustee and C.
Richard Roper as Trustee.
Exhibit 10.11 Side Letter Agreement dated February 27, 1995 between LINPAC Mouldings Limited
and William H. Roper, Ruth Roper, Robert E. Roper, Nancy Roper, C. Richard Roper,
Margo Roper, William H. Roper as Trustee, Robert E. Roper as Trustee and C.
Richard Roper as Trustee.
</TABLE>
<PAGE> 19
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
Exhibit 10.12 Assignment of Claims dated February 27, 1995 between LINPAC Mouldings Limited and
William H. Roper, Ruth Roper, Robert E. Roper, Nancy Roper, C. Richard Roper,
Margo Roper, William H. Roper as Trustee, Robert E. Roper as Trustee and C.
Richard Roper as Trustee.
Exhibit 10.13 Employment Agreement dated as of January 1, 1995 between Ropak Corporation and
William H. Roper.
Exhibit 10.14 Continuing Guaranty dated February 20, 1995 executed by LINPAC Mouldings Limited
as to Ropak Corporation employment agreement with William H. Roper.
Exhibit 10.15 Employment Agreement dated as of January 1, 1995 between Ropak Corporation and
Robert E. Roper.
Exhibit 10.16 Continuing Guaranty dated February 20, 1995 executed by LINPAC Mouldings Limited
as to Ropak Corporation employment agreement with Robert E. Roper.
Exhibit 10.17 Employment Agreement dated as of January 1, 1995 between Ropak Corporation and C.
Richard Roper.
Exhibit 10.18 Continuing Guaranty dated February 20, 1995 executed by LINPAC Mouldings Limited
as to Ropak Corporation employment agreement with C. Richard Roper.
Exhibit 10.19 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
William H. Roper.
Exhibit 10.20 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
Robert E. Roper.
Exhibit 10.21 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and C.
Richard Roper.
Exhibit 10.22 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
Douglas H. MacDonald.
Exhibit 10.23 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
Terry L. Nagelvoort.
Exhibit 10.24 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
John H. Stafford.
Exhibit 10.25 Indemnification Agreement dated January 18, 1995 between Ropak Corporation and
David A. Williams.
Exhibit 10.26 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and John L. Doughty.
Exhibit 10.27 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and Robert Alexander Lang.
Exhibit 10.28 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and Nigel Victor David Roe.
Exhibit 10.29 Form of Indemnification Agreement dated February 1, 1995 between Ropak
Corporation and John Thorp.
Exhibit 10.30 Ropak Corporation's 1988 Incentive Stock Option Plan, as amended February 24,
1994.
Exhibit 10.31 Ropak Corporation's 1991 Stock Option Plan as amended on February 24, 1994.
Exhibit 10.32 Stock option agreement granted February 19, 1991 to William H. Roper under 1991
Stock Option Plan.
Exhibit 10.33 Letter dated February 27, 1995 executed by William H. Roper agreeing to
cancellation of stock option agreement granted February 19, 1991.
Exhibit 10.34 Stock option agreement granted February 19, 1991 to C. Richard Roper under 1991
Stock Option Plan.
</TABLE>
<PAGE> 20
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
Exhibit 10.35 Letter dated February 27, 1995 executed by C. Richard Roper agreeing to
cancellation of stock option agreement granted February 19, 1991.
Exhibit 10.36 Stock option agreement granted February 19, 1991 to Robert E. Roper under 1991
Stock Option Plan.
Exhibit 10.37 Letter dated February 27, 1995 executed by Robert E. Roper agreeing to
cancellation of stock option agreement granted February 19, 1991.
Exhibit 10.38 Stock option agreement granted February 19, 1991 to James R. Connell under 1991
Stock Option Plan.
Exhibit 10.39 Stock option agreement granted February 19, 1991 to James R. Dobell under 1991
Stock Option Plan.
Exhibit 10.40 Stock option agreement granted February 19, 1991 to Ronald W. Cameron under 1991
Stock Option Plan.
Exhibit 10.41 Stock option agreement granted May 17, 1990 to James R. Connell under 1988 Stock
Option Plan.
Exhibit 10.42 Stock option agreement granted May 17, 1990 to James R. Dobell under 1988 Stock
Option Plan.
Exhibit 10.43 Stock option agreement granted May 17, 1990 to Ronald W. Cameron under 1988 Stock
Option Plan.
Exhibit 10.44 Stock option agreement granted February 7, 1994 to James R. Connell under 1988
Stock Option Plan.
Exhibit 10.45 Stock option agreement granted February 7, 1994 to Ronald W. Cameron under 1988
Stock Option Plan.
Exhibit 10.46 Common Stock Purchase Warrant dated July 1, 1985 covering 25,000 shares
exercisable at $8.00 per share until June 30, 1990, issued by Ropak Corporation
to Jet Partners.
Exhibit 10.47 Letter agreement dated November 28, 1989 extending expiration date for Jet
Partners Common Stock Purchase Warrant to June 30, 1995.
Exhibit 10.48 Letter dated October 17, 1994 from Ropak Corporation to Jet Partners confirming
adjustments to Common Stock Purchase Warrants resulting from prior stock
dividends.
Exhibit 10.49 Letter agreement dated March 3, 1995 between Ropak Corporation and Jet Partners
for the repurchase of 36,602 1/2 Common Stock Purchase Warrants.
Exhibit 10.50 Ropak Corporation's Supplemental Employee Benefits Plan, as amended and restated
December 1, 1994, together with Supplemental Employee Benefits Agreements dated
October 22, 1987 with the following employees: William H. Roper, Robert E. Roper,
C. Richard Roper, James R. Dobell, Ronald W. Cameron and James R. Connell.
Exhibit 10.51 Trust Agreement under the Ropak Corporation's Supplemental Employee Benefits Plan
dated December 1, 1994 between the Ropak Corporation and Wells Fargo Bank.
Exhibit 10.52 Letter dated March 15, 1995 executed by Douglas H. MacDonald expressing his
intent to tender shares
Exhibit 10.53 Letter dated March 15, 1995 executed by James R. Connell expressing his intent to
tender shares and options
Exhibit 10.54 Letter dated March 15, 1995 executed by James R. Dobell expressing his intent to
tender shares and options
Exhibit 10.55 Letter dated March 15, 1995 executed by Ronald W. Cameron expressing his intent
to tender shares and options
Exhibit 10.56 License Agreement dated December 31, 1979 between Ropak Corporation, William H.
Roper, Robert E. Roper, Charles Richard Roper, Elvere Roper and Ralph A. Miller
as to Ropak Corporation's license of certain trademark, patent and know-how
rights.
Exhibit 10.57 Amendment dated as of November 1, 1985 to License Agreement as to Ropak
Corporation's license of certain trademark, patent and know-how rights.
Exhibit 10.58 Lease dated January 25, 1984 between Ropak Corporation and Sixty-Sixty Limited as
to Ropak Corporation's lease of premises located at 660 South State College
Blvd., Fullerton, California.
Exhibit 10.59 Addendum dated October 31, 1985 to Lease of premises located at 660 South State
College Blvd., Fullerton, California.
Exhibit 10.60 Article NINTH to the Certificate of Incorporation of Ropak Corporation relating
to certain Business Combinations with an Interested Stockholder.
Exhibit 10.61 Section 9 of Article SIXTH to the Certificate of Incorporation of Ropak
Corporation relating to indemnification of directors and officers.
Exhibit 10.62 Article X to the ByLaws of Ropak Corporation relating to indemnification of
directors and officers.
</TABLE>
<PAGE> 1
[LOGO]
NOTICE OF ANNUAL MEETING
MAY 16, 1995
Notice is hereby given that the Annual Meeting of Stockholders of ROPAK
CORPORATION, a Delaware corporation (herein called "Ropak" or the "Company"),
will be held at the Brea Embassy Suites, 900 East Birch Street, Brea, California
92621, on Tuesday, May 16, 1995 at 2:00 P.M. local time. The Annual Meeting will
be held for the following purposes, as more fully described in the attached
Proxy Statement:
1. To elect three Class II directors to the Board of Directors.
2. To consider and act upon any other matters which may properly come
before the meeting or any adjournment thereof.
In accordance with the provisions of the Bylaws, the Board of Directors has
fixed the close of business on March 27, 1995 as the record date for the
determination of the holders of Common Stock entitled to notice of and to vote
at the Annual Meeting.
A list of the stockholders entitled to vote at the Annual Meeting will be
open for examination by any stockholder for any purpose germane to the meeting
during ordinary business hours for a period of ten days prior to the meeting at
the offices of the Company, 660 South State College Boulevard, Fullerton,
California 92631, and will also be available for examination at the Annual
Meeting until its adjournment.
YOUR ATTENTION IS DIRECTED TO THE ACCOMPANYING PROXY STATEMENT.
STOCKHOLDERS WHO DO NOT EXPECT TO ATTEND THE MEETING IN PERSON ARE REQUESTED TO
DATE, SIGN AND MAIL THE ENCLOSED PROXY AS PROMPTLY AS POSSIBLE IN THE ENCLOSED
ENVELOPE.
By Order of the Board of Directors,
WILLIAM H. ROPER,
Chairman of the Board
ROBERT E. ROPER,
President
Fullerton, California
March 27, 1995
EXHIBIT 10.1
<PAGE> 2
[LOGO]
660 SOUTH STATE COLLEGE BOULEVARD
FULLERTON, CALIFORNIA 92631
PROXY STATEMENT
------------------------
ANNUAL MEETING OF STOCKHOLDERS
MAY 16, 1995
------------------------
PROXIES
The enclosed proxy is solicited on behalf of the management and Board of
Directors of ROPAK CORPORATION, a Delaware corporation (herein called the
"Company" or "Ropak"), for use at the Company's Annual Meeting of Stockholders
and at any and all adjournments thereof. Any stockholder has the power to revoke
his or her proxy at any time before it is voted. A proxy may be revoked by
delivering written notice of revocation to the Secretary of the Company at its
principal office address listed above, by a subsequent proxy executed by the
person executing the prior proxy and presented to the meeting, or by attendance
at the meeting and voting in person by the person executing the proxy.
The cost of preparing, assembling and mailing this Notice of Annual Meeting
and Proxy Statement and the enclosed proxy card will be paid by the Company.
Following the mailing of this Proxy Statement, directors, officers and regular
employees of the Company may solicit proxies by mail, telephone, telegraph or
personal interview. Such persons will receive no additional compensation for
such services. Brokerage houses and other nominees, fiduciaries and custodians
nominally holding shares of the Company's Common Stock of record will be
requested to forward proxy soliciting material to the beneficial owners of such
shares, and will be reimbursed by the Company for their reasonable charges and
expenses in connection therewith.
A copy of the Company's 1994 Annual Report to Stockholders, which includes
financial statements for its last fiscal year ended December 31, 1994, will be
mailed on or about March 28, 1995 to each shareholder of record as of the close
of business on March 27, 1995.
VOTING SECURITIES
Only the holders of record of the Company's common stock at the close of
business on March 27, 1995, the record date for the Annual Meeting, are entitled
to notice of and to vote at the Annual Meeting. The Company had 4,386,162 shares
of common stock (the "Common Stock") outstanding as of March 27, 1995. Each
share of Common Stock entitles the holder thereof to one vote on each matter to
be acted upon at the meeting.
<PAGE> 3
The following table sets forth information (except as otherwise indicated
by footnote) as to shares of Ropak Common Stock owned by (i) each person known
by management to beneficially own more than 5% of the Company's outstanding
Common Stock, (ii) each of the Company's directors and nominees for election as
directors, and (iii) all executive officers, directors and nominees for election
as directors as a group:
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
OWNED(1)
------------------
NAME OR GROUP AMOUNT %
------------- --------- ----
<S> <C> <C>
DIRECTORS:
John L. Doughty(2)(3)................................... -0- --
Robert Alexander Lang(2)(4)............................. -0- --
Douglas H. MacDonald(5)................................. 7,260 0.2%
Nigel V. Roe(2)(4)...................................... -0- --
William H. Roper(6)..................................... -0- --
Robert E. Roper(6)...................................... -0- --
C. Richard Roper(6)..................................... -0- --
John Thorp(2)(3)........................................ -0- --
David A. Williams(2)(3)................................. -0- --
All executive officers and directors
as a group [12 in number](7)............................ 182,078 4.1%
OTHER 5% STOCKHOLDERS:
LINPAC Mouldings Limited(2)............................. 2,841,303 57.2%
Deykin Avenue
Witton, Birmingham B6 7HY
England
</TABLE>
---------------
(1) The persons named in the table have sole voting and investment power with
respect to all shares of Common Stock shown to be beneficially owned by
them, subject to the information contained in the footnotes to this table.
The above table does not include shares of the Company's Common Stock held
by the Company's 401(k) Incentive Savings Plan in which certain executive
officers have an interest.
(2) The Company has been advised that LINPAC Mouldings Limited ("LINPAC")
directly owns 2,263,526 shares of Ropak's Common Stock plus $5,200,000 in
redeemable preferred shares of Ropak's Canadian subsidiary that are
exchangeable, in whole or in part at the option of the holder, into Ropak
Common Stock at $9.00 U.S. per share (i.e., convertible into a total of
577,777 shares of Common Stock). Beneficial ownership listed in the above
table for directors of the Company does not include shares beneficially
owned by LINPAC; Messrs. Doughty, Lang, Roe, Thorp and Williams are all
associated with LINPAC or its affiliates. As directors of LINPAC, Messrs.
Doughty, Thorp and Williams may be deemed to control voting and disposition
power of Ropak shares owned by LINPAC. Messrs. Doughty, Lang, Roe, Thorp and
Williams each disclaim beneficial ownership of shares owned by LINPAC. See
"Recent Events -- Change in Control".
(3) The business address for Messrs. Doughty, Thorp and Williams is Deykin
Avenue, Witton, Birmingham B6 7HY, England.
(4) The business address for Messrs. Lang and Roe is 6400 Powers Ferry Road NW,
Suite 345, Atlanta, Georgia 30339.
(5) Includes 7,260 shares owned by Admac Holdings Ltd., a corporation owned by
Mr. MacDonald and his spouse. Mr. MacDonald's business address is 2240
Bellevue Avenue, West Vancouver, British Columbia.
(6) Each of Messrs. William, Robert and Richard Roper recently sold all of their
Common Stock holdings to LINPAC. See "Recent Events -- Change in Control".
The business address for each of Messrs. William, Robert and Richard Roper
is 660 S. State College Boulevard, Fullerton, California 92631.
(7) Does not include shares owned by LINPAC as described in Note 2 above.
Includes shares described in Note 5 plus 55,891 shares beneficially owned by
other executive officers, 22,257 shares beneficially owned by the spouses of
two executive officers, and 96,670 shares issuable upon exercise of stock
options granted to executive officers that were fully exercisable or
exercisable within a period of 60 days from the date of this Proxy
Statement.
2
<PAGE> 4
RECENT EVENTS -- CHANGE IN CONTROL AND TENDER OFFER
OPTION AGREEMENT AND PROPOSED MERGER OFFERED BY LINPAC; REVIEW BY SPECIAL
COMMITTEE AND WITHDRAWAL OF LINPAC'S PROPOSED MERGER OFFER
As noted in Note 2 to the table above, LINPAC Mouldings Limited ("LINPAC")
owns 2,263,526 shares of the Company's Common Stock, which represent 51.6% of
the total outstanding and entitled to vote at the Annual Meeting. LINPAC also
owns $5,200,000 in redeemable preferred shares of Ropak's Canadian subsidiary
that are exchangeable, in whole or in part at the option of the holder, into
Ropak Common Stock at $9.00 U.S. per share (i.e., nonvoting preferred shares
convertible into a total of 577,777 shares of Common Stock). LINPAC is a
privately-held company with its principal office in Birmingham, England. LINPAC
and its affiliated companies manufacture a wide variety of plastic, paper and
metal packaging products at approximately 50 manufacturing facilities, including
eight in the United States, with over 7,000 employees worldwide.
LINPAC has had a limited trading relationship with Ropak for more than 10
years and purchased 366,032 shares of the Company's Common Stock in a private
transaction with an institutional investor in June 1992. David A. Williams, the
Managing Director of LINPAC, has served as a director of Ropak since November
1992.
The Option Agreement and Proposed Merger
On September 28, 1994, Ropak announced that three of its executive offices,
directors and principal stockholders, William H. Roper, Robert E. Roper and C.
Richard Roper, together with their spouses and certain family trusts under their
control (collectively, the "Roper Family"), had entered into an agreement with
LINPAC dated September 25, 1994 (the "Option Agreement"). The Option Agreement
granted LINPAC an option, exercisable at any time through the close of business
on February 28, 1995, to purchase up to 985,520 shares of the Company's Common
Stock ("Roper Shares") owned by the Roper Family. If all of that option had been
exercised, LINPAC also received an option to purchase up to 132,000 shares of
the Company's Common Stock covered by stock options ("Roper Options") held by
three members of the Roper Family. For convenience of reference, the options
granted to LINPAC are collectively referred to as the "LINPAC Purchase Option".
The LINPAC Purchase Option covered shares then representing approximately 25.2%
of the Company's voting capital stock (assuming exercise by LINPAC of the Roper
Options). The Option Agreement further provided that on or prior to February 28,
1995, the Roper Family had the right and option (the "Roper Sale Option") to
require that LINPAC purchase all of the Roper Shares and Roper Options.
During the term of the Option Agreement, LINPAC held proxies to vote all
Common Stock owned by the Roper Family, which included all shares covered by the
LINPAC Purchase Option plus 7,318 shares of Common Stock held by a member of the
Roper Family as custodian for his children. With certain exceptions, the proxies
did not permit LINPAC (i) to vote for the election of any person as a director
of the Company not nominated by the Company's current directors, (ii) to seek
the removal of any of the Company's current directors, (iii) to call a special
meeting of the Company's stockholders (other than a stockholders' meeting called
for the purpose of seeking approval of a proposed merger of the Company with a
wholly-owned subsidiary of LINPAC), or (iv) to seek to take any action by means
of a written consent of the Company's stockholders.
LINPAC was required by the Option Agreement to present an offer to the
Company's board of directors (the "Board") containing terms and conditions,
summarized in the Option Agreement, to acquire the interests of all the
Company's Common stockholders in a proposed merger for an all-cash price of
$10.50 per share of Ropak Common Stock (the "Proposed Merger"). The Proposed
Merger was formally presented to the Company for consideration by LINPAC on
October 7, 1994.
Had the Proposed Merger been consummated, the Option Agreement required
that William H. Roper, Robert E. Roper and C. Richard Roper would remain in
Company executive management positions at
3
<PAGE> 5
compensation rates specified in the Option Agreement for minimum periods ranging
from one to four years after completion of the Proposed Merger. In each case,
the Option Agreement also required seven year non-competition covenants after
eventual termination of full time employment with additional payments to each of
the three Roper executives over six years after termination of employment at
$220,000 per individual per annum.
The option exercise price for both the LINPAC Purchase Option and the Roper
Sale Option was $14.75 per share, a premium of $4.25 per share to the Proposed
Merger price of $10.50 per share. The Company has been advised by the Roper
Family and LINPAC that this premium was intended to compensate Roper Family
members for prospective loss of employment and non-competition compensation
after 1995, discounted to present value, if the Proposed Merger could not be
successfully completed by February 28, 1995. Had the Proposed Merger been
successfully completed, Roper Family members would have received $10.50 per
share cash consideration contemplated for all Company stockholders by the
Proposed Merger, plus their employment and non-competition agreements.
Review by Special Committee and Related Matters
A special committee of independent directors of Ropak's Board was formed
effective on September 30, 1994 to review and evaluate the Proposed Merger
offered by LINPAC and to make recommendations to the Company's Board. Members of
the special committee included then directors Douglas H. MacDonald, John H.
Stafford and Terry L. Nagelvoort (the "Special Committee"). The Special
Committee retained independent legal counsel and an independent investment
banker to advise the Special Committee in connection with its review of the
Proposed Merger and its evaluation of the $10.50 per share price offered by
LINPAC.
Under a letter agreement dated November 8, 1994, the Special Committee was
advised by the investment banking firm of Wertheim Schroder & Co. Incorporated
in this process. The terms of this engagement provided for a fee payable to
Wertheim Schroder of $200,000 for its services plus $50,000 payable at the
closing, or upon termination, of the Proposed Merger. The letter agreement
further provided that if Ropak elected to pursue a business combination with an
entity other than LINPAC prior to June 30, 1995, Wertheim Schroder would receive
a contingent fee equal to 1.25% of the aggregate consideration received by Ropak
and its stockholders less any fees previously paid to Wertheim Schroder under
the letter agreement. The agreement provides that Ropak will indemnify Wertheim
Schroder and its controlling persons against certain liabilities including,
among others, liabilities under the Federal securities laws.
On December 1, 1994, the Company's Board was advised that the Special
Committee had determined LINPAC's proposed price to acquire Ropak at a $10.50
per share to be inadequate. The Board was informed that the Special Committee
had received a confidential report of Wertheim Schroder dated November 29, 1994
in which Wertheim Schroder had expressed a minimum to a maximum range that it
believed would be fair to Ropak stockholders and informed the Board the proposed
price of $10.50 per share was below that range. Neither the confidential report
prepared for the Special Committee by Wertheim Schroder nor the minimum to
maximum price range recommended by Wertheim Schroder were disclosed at that time
to the Board or to representatives of Ropak, other than the Special Committee.
In light of the Special Committee's determination, the Board authorized the
Special Committee to consider and take certain appropriate actions in the best
interests of the stockholders of the Company, but refused the Special
Committee's request (except with prior approval of a majority of the full Board)
for authority to adopt or take actions to adopt a shareholder rights plan,
commonly referred to as a "poison pill", or for other authority to issue Ropak
securities with dilutive effect to the interests of other stockholders.
The Special Committee, by a letter agreement dated December 13, 1994,
amended its previous engagement letter with Wertheim Schroder. That amendment
confirmed Wertheim Schroder had been retained by the Special Committee to
represent the Special Committee with respect to a sale of Ropak whether such a
transaction was a merger, sale of assets or sale of stock and whether
consummated with LINPAC or any other party. The compensation arrangement was
amended to delete the contingent fee for such a transaction equal to 1.25% of
the aggregate consideration received by Ropak and its stockholders less
4
<PAGE> 6
any fees previously paid to Wertheim Schroder under the November 8, 1994
agreement. In lieu thereof, the amendment provided Wertheim Schroder would
receive a contingent fee equal to 5% of any consideration received by Ropak and
its stockholders to the extent such consideration exceeded a base amount under a
formula relating to the Company's existing capitalization at $10.50 per share,
less a credit for other fees previously paid Wertheim Schroder of $10,000 for
each $0.50 increment over the $10.50 per share base amount up to a maximum
credit of $50,000.
LINPAC reported that during the period from September 30, 1994 (after the
Proposed Merger was publicly announced) through November 29, 1994, it purchased
469,250 additional shares of the Company's Common Stock not covered by the
Option Agreement in open market and private transactions and also purchased, in
a private transaction with an unaffiliated third party, preferred shares of
Ropak Canada Inc. exchangeable at the holder's option for approximately 577,777
shares of Ropak Common Stock. In a series of standstill commitments made during
the month of December 1994, LINPAC agreed with the Special Committee that LINPAC
would not acquire additional shares of the Company's capital stock from December
2, 1994 through December 22, 1994.
On December 22, 1994, following several meetings of both the Special
Committee and the full Board, the offer by LINPAC to enter into the Proposed
Merger was withdrawn. In view of the withdrawal of LINPAC's offer and the
absence of any competitive offers from third parties requiring consideration, a
majority of the Board voted on December 22, 1994 to disband the Special
Committee by a vote of four directors in favor and three directors (those on the
Special Committee) opposed. The Company was advised at that time LINPAC intended
to continue to evaluate its options as to its equity position in Ropak.
In January 1995, special counsel for the Special Committee delivered to
counsel for Ropak and the Roper Brothers a copy of the confidential report dated
November 29, 1994 prepared for the Special Committee by Wertheim Schroder and
minutes of proceedings of the Special Committee. The confidential report
prepared for the Special Committee concluded that Wertheim Schroder deemed a
range of $12.50 to $13.50 per share of Common Stock to be fair from a financial
point of view to the stockholders of Ropak other than LINPAC and members of the
Roper Family. A copy of the confidential report dated November 29, 1994 prepared
for the Special Committee by Wertheim Schroder will be filed with the Securities
and Exchange Commission on or about March 28, 1995 as an exhibit to the
Company's Schedule 14D-9 Statement in response to a subsequent tender offer by
LINPAC described below.
CHANGES IN BOARD OF DIRECTORS
On January 23, 1995, Messrs. Terry L. Nagelvoort and John H. Stafford,
members of the former Special Committee, resigned as members of the Board. The
Company did not receive a letter or other communication from these individuals
which would indicate that their resignations resulted from a disagreement with
the Company on any matter relating to the Company's operations, policies or
practices.
At a meeting of the Board held on January 26, 1995, the Board expanded the
authorized number of directors from seven to nine members. To fill four
vacancies on the Board resulting from the resignations of Messrs. Nagelvoort and
Stafford and the expansion of the Board by two members, four nominees of LINPAC
were elected to the Board effective as of February 1, 1995. The new directors
include Messrs. John L. Doughty, Robert Alexander Lang, Nigel Victor David Roe
and John Thorp, all of whom are executives of LINPAC or its affiliated U.S.
subsidiary, LINPAC Inc. See "Election of Directors".
SUBSEQUENT EVENTS AND PENDING TENDER OFFER BY LINPAC
Based upon LINPAC's reports filed with the Securities and Exchange
Commission, LINPAC purchased 435,406 additional shares of the Company's Common
Stock in open market and private transactions during the period from December
23, 1994 (after the expiration of its standstill commitments) through January
17, 1995. On February 10, 1995, LINPAC purchased 7,318 shares for $10.50 per
share in a private transaction with C. Richard Roper as custodian for his
children.
5
<PAGE> 7
Under an agreement dated February 20, 1995, the Roper Family members and
LINPAC agreed to terminate the Option Agreement described above. LINPAC
purchased 985,520 shares of the Company's Common Stock from the Roper Family
members on February 27, 1995 at $10.50 per share and paid $666,006 to the three
Roper Family executives in consideration of the cancellation of their stock
options covering 132,000 shares. Each of the three Roper Family executives
concurrently entered into long-term employment and non-competition agreements
with the Company effective as of January 1, 1995 authorized by the Board. See
"Executive Compensation and Related Information -- Roper Employment Agreements".
On March 15, 1995, LINPAC publicly announced it intended to commence a
tender offer to purchase all shares of the Company's Common Stock not owned by
LINPAC for a cash price of $11.00 per share, subject to terms and conditions set
forth in tender offer materials; that tender offer commenced on March 21, 1995.
LINPAC's offering materials indicates its tender offer is not subject to the
tender of a minimum number of shares or to financing conditions. On March 21,
1995, Ropak's Board of Directors met to consider LINPAC's cash tender offer. It
was determined the Board as a whole is unable to take a position with respect to
LINPAC's tender offer. Five Board members, constituting a majority of the Board,
are employees of LINPAC or its affiliates and therefore have an actual conflict
of interest in making any recommendations as to the tender offer. Three Roper
Family members in their individual capacity have recommended acceptance of the
tender offer, but as Board members may be deemed to have a potential conflict of
interest in view of their recent sale of stock to LINPAC and Company employment
agreements that are guaranteed by LINPAC. The remaining Board member, Douglas H.
MacDonald, advised Ropak that he intends to tender all 7,260 shares beneficially
owned by him but prefers to remain neutral in his capacity as a member of the
Board because of his participation on the former Special Committee described
above. The Board noted the report of Wertheim Schroder to the Special Committee
will be filed as a publicly available document with the Securities and Exchange
Commission as an exhibit to Ropak's Schedule 14D-9 statement in response to the
tender offer, and that reasons of LINPAC and the Roper Family members for
recommending acceptance of the tender offer are set forth in materials being
mailed to Ropak stockholders. Given these circumstances and the absence of a
minimum tender condition in LINPAC's tender offer, each Ropak stockholder may
determine whether or not to accept LINPAC's tender offer with reasonable
assurance that properly tendered shares will be accepted. The Board decided
Ropak will not seek to engage the services of an investment banker in connection
with LINPAC's tender offer.
Based upon information known to the Company's management, as of March 27,
1995 LINPAC owned 2,263,526 shares of the Company's Common Stock (or
approximately 51.6% of the total 4,386,162 shares outstanding) plus preferred
shares of Ropak Canada Inc. exchangeable at the holder's option for
approximately 577,777 shares of the Company's Common Stock. Assuming full
exchange of Ropak Canada's preferred stock into 577,777 shares of the Company's
Common Stock, LINPAC's beneficial pro forma ownership of an aggregate of
2,841,303 shares of the Company's Common Stock would represent approximately
57.2% of the pro forma outstanding shares (assuming no other outstanding options
or warrants are exercised). In addition to exchange rights of Ropak Canada's
preferred stock, there are outstanding stock options covering a total of 218,950
shares of the Company's Common Stock as of the date of this Proxy Statement.
ELECTION OF DIRECTORS
The Company's certificate of incorporation in the State of Delaware
provides that the Board of Directors will consist of not less than three nor
more than 12 directors, with the exact number to be fixed by the Board. The
certificate of incorporation also provides for a classified Board of Directors,
meaning that the Board is divided into three classes designated Class I, Class
II and Class III, with each class to be as nearly equal in number as possible.
Generally, the members of each class are elected for a term of three years and
until their successors are elected and qualified, with one of the three classes
of directors to be elected each year. The Board of Directors has fixed the
number of directors at nine, with three directors in each of Class I, Class II
and Class III.
6
<PAGE> 8
The term of office of Class II directors expires at the 1995 Annual
Meeting. Consequently, the individuals listed below under the heading "Class II"
are being nominated for election as directors to hold office for a three-year
term expiring at the annual stockholders meeting in 1998. The term of office for
directors in Class III will continue until the 1996 annual stockholders meeting
and the term of office of directors in Class I will continue until the 1997
annual stockholders meeting.
Unless otherwise instructed, the enclosed proxy will be voted for election
of the nominees listed below as Class II directors, each of whom has indicated
his willingness to serve if reelected. The persons designated as proxies reserve
full discretion to cast their votes for another person recommended by management
in the unanticipated event that any nominee is unable or declines to serve.
Messrs. Doughty, Lang, Roe and Thorp were first elected directors of Ropak on
February 1, 1995. All other incumbent directors have served as directors since
the last Annual Meeting of Stockholders.
The Company has been advised that LINPAC intends to vote all 2,263,526
shares of Common Stock LINPAC is entitled to vote at the Annual Meeting in favor
of the election of the nominees for election of Class II directors listed below,
and accordingly the election of those nominees is assured. See "Voting
Securities" above.
The following table sets forth the names and certain information with
respect to the persons nominated for election as Class II directors at the 1995
Annual Meeting and each other person who will continue to serve as a director
after the Annual Meeting.
<TABLE>
<CAPTION>
AGE DIRECTOR SINCE
--- ------------------
<S> <C> <C>
NOMINEES FOR DIRECTORS
CLASS II -- Term Expiring at the
1995 Annual Meeting:
Nigel V. Roe 52 February 1, 1995
Robert E. Roper(1) 62 January 27, 1978
David A. Williams(2)(3) 47 October 20, 1992
CONTINUING DIRECTORS
CLASS III -- Term Expiring at the
1996 Annual Meeting:
Douglas H. MacDonald(2) 69 February 13, 1990
C. Richard Roper(1) 59 January 27, 1978
John Thorp 49 February 1, 1995
CLASS I -- Term Expiring at the
1997 Annual Meeting:
John L. Doughty 51 February 1, 1995
Robert Alexander Lang(3) 52 February 1, 1995
William H. Roper(1) 66 August 15, 1979
</TABLE>
---------------
(1) Member of Stock Option Committee.
(2) Member of Compensation Committee.
(3) Member of Audit Committee.
Nigel V. Roe was elected a director of Ropak on February 1, 1995. Mr. Roe
is employed as Secretary/Treasurer of LinPac Inc., a United States subsidiary of
LINPAC Mouldings Limited ("LINPAC"), and has served in that capacity for more
than 15 years. LINPAC, based in Birmingham, England, is a wholly-owned
subsidiary of LINPAC Group Limited, a privately-held company founded in 1959 and
the second largest packaging company in the United Kingdom operating with
corrugated, plastics packaging and industrial packaging divisions. LINPAC Group
Limited manufactures a wide variety of plastic, paper and metal packaging
products at approximately 50 manufacturing facilities, including eight in the
United States, with over 7,000 employees worldwide. LINPAC acts as a distributor
in Europe of Ropak's
7
<PAGE> 9
materials handling bins and owns a majority of Ropak's issued and outstanding
capital stock. See "Recent Events -- Change in Control".
Robert E. Roper has served Ropak as its President and a director since
January 1978 and currently acts as the Company's Chief Operating Officer,
concentrating on management of United States container operations. Prior to
co-founding the Company in 1978, he was employed as an executive in the plastic
container industry for approximately 10 years.
David A. Williams was elected a director of Ropak in October 1992. Mr.
Williams is the Managing Director and Chief Executive Officer of LINPAC, and has
served in that capacity since 1982. He also serves as a director of LINPAC Group
Limited, the parent of LINPAC.
Douglas H. MacDonald was elected a director of Ropak in May 1990. He has
acted from time to time as a consultant to Ropak since February 1985 when he and
others sold Capilano Plastics Company Ltd. and Capilano Industries, Inc. to
Ropak. For more than five years prior to February 1985, Mr. MacDonald was an
executive officer and principal stockholder of the Capilano companies.
C. Richard Roper has served the Company as an executive officer and
director since January 1978 and currently serves as Vice President and its
corporate Secretary, concentrating on design and engineering and management of
raw materials purchases. Prior to co-founding the Company in 1978, he was
employed as an executive in the plastic container industry for approximately 10
years.
John Thorp was elected a director of Ropak on February 1, 1995. Mr. Thorp
has served as a director of LINPAC since 1993. Prior to serving as a director of
LINPAC, he was general manager of LINPAC's GPG Dunstable plant.
John L. Doughty was elected a director of Ropak on February 1, 1995. Mr.
Doughty is employed as Financial Director of LINPAC and has served in that
capacity since 1983.
Robert A. Lang was elected a director of Ropak on February 1, 1995. Mr.
Lang is employed as Chief Operating Officer and Vice President of LinPac Inc., a
United States subsidiary of LINPAC, and has served in that position for more
than nine years. Mr. Lang has also served as a director of LINPAC Group Limited
for approximately one year.
William H. Roper has served as the Chief Executive Officer of Ropak since
June 1979 and as Chairman of its Board of Directors since August 1979. Prior to
joining the Company in 1979, he was employed as an executive in the plastic
container industry for more than 10 years.
Officers serve at the discretion of the Board of Directors. Except for
William H. Roper, Robert E. Roper and C. Richard Roper, who are brothers, there
are no family relationships between any of the Company's directors and executive
officers. There are no arrangements or understandings between any director and
any other person pursuant to which any person was elected or nominated as a
director except that Messrs. John L. Doughty, Robert A. Lang, Nigel Roe, John
Thorp and David A. Williams were all designated for election as directors by
LINPAC.
COMMITTEES; MEETINGS
Audit Committee. The Company's Audit Committee consists of two directors.
The Audit Committee met twice in fiscal 1994. The Audit Committee meets
independently with the internal auditing staff, representatives of the Company's
independent accountants and with representatives of senior management. The Audit
Committee reviews the general scope of the audit, the fee charged by the
independent accountants and matters relating to internal control systems. In
addition, the Audit Committee is responsible for reviewing and monitoring the
performance of non-audit services by the Company's independent accountants. The
Audit Committee is also responsible for recommending the engagement or discharge
of the Company's independent accountants.
Compensation Committee. The Company's Compensation Committee consists of
two directors and did not meet in fiscal 1994. The Compensation Committee is
responsible for reviewing and reporting to the Board
8
<PAGE> 10
on the recommended annual compensation for all officers and formulating
compensation policies for submission to the Board.
Stock Option Committee. The Company's Stock Option Committee consists of
three members. The Stock Option Committee is responsible for granting options
under the Company's stock option plans, establishing the terms and conditions of
options granted under those plans, and administering the stock option plans. The
Stock Option Committee acted by unanimous written consent during fiscal 1994.
During the fiscal year ended December 31, 1994, the Board of Directors held
eight meetings. No director attended fewer than 75% of the aggregate of all
meetings of the Board of Directors. Actions by the Board of Directors other than
at such meetings were held by unanimous written consent.
REPORT ON EXECUTIVE COMPENSATION
The Compensation Committee of the Board, consisting of two outside
directors. An Executive Committee of management consisting of William H. Roper,
Robert E. Roper and C. Richard Roper periodically review executive compensation
within guidelines approved by the Board of Directors, and provides
recommendations to the full Board on matters relating to executive compensation.
Other than compensation for members of the Executive Committee itself, the
Executive Committee recommends to the Compensation Committee the compensation
program for each executive officer and the relationship of their compensation
program to Company performance. After review, the Compensation Committee
recommends to the full Board the compensation paid to each executive officer,
including those serving on the Executive Committee, and the relationship of
their compensation to Company performance.
The Compensation Committee has prepared the following report which
addresses compensation policies applicable to the Company's executive officers
and has been approved by the full Board of Directors.
COMPENSATION POLICIES FOR EXECUTIVE OFFICERS
Ropak's executive compensation program is designed to attract, retain and
reward highly qualified executives with significant experience in the plastics
packaging industry, and to encourage the achievement of individual objectives
and corporate business performance.
Compensation levels and benefits are based upon a plan developed in 1990
with the advice of an independent consulting firm specializing in compensation.
Base salaries are designed to be competitive with companies of similar size in
manufacturing industries, after taking into account individual salary
determinations, and generally are targeted to be in the mid-range of base
salaries at comparable companies. Individual salary determinations are based on
experience, performance, areas of managerial responsibility and comparison to
peers inside and outside the Company.
Annual increases in base salary compensation for executives generally are
based upon a review of individual performance compared to various standards
applicable to employees throughout the Company. Adjustments to base salaries for
executive employees, including members of the Executive Committee, also take
into account the Company's performance for its last fiscal year and anticipated
Company performance for the current year. In 1995, members of the Company's
Executive Committee will be compensated in accordance with employment agreements
that became effective on January 1, 1995. See "Executive Compensation and
Related Information -- Roper Employment Agreements".
The Company's compensation program seeks to achieve the following
objectives:
- To provide a competitive compensation program in order to attract,
motivate, reward, and retain qualified and experienced personnel, taking
into account competitive compensation levels, and to increase the level
of compensation as an individual's level of responsibility and
achievements increase. Competitive standards take into account
compensation levels and benefit programs of manufacturing organizations
comparable to Ropak. Board decisions as to executive compensation levels
also take into consideration relevant factors relating to the Company's
historical and anticipated performance in view of current economic
conditions and may be deemed subjective to that extent.
9
<PAGE> 11
- To encourage the retention of experienced management by seeking an
appropriate balance between current compensation, previously granted
stock options or other forms of incentive compensation, and deferred
retirement benefit programs.
COMPONENTS OF EXECUTIVE COMPENSATION PROGRAM
Total compensation for Ropak's executive management is currently composed
of base salary, incentive bonus plans for the Executive Committee members
starting in 1995, previously granted stock options for management personnel in
1994 and prior years, deferred compensation though participation in the
Company's 401(k) retirement savings plan and participation in Ropak's
Supplemental Benefits Plan described later in this Proxy Statement. Base
salaries are set in accordance with the compensation policies described above,
and are generally adjusted after review on an annual basis.
CHIEF EXECUTIVE OFFICER COMPENSATION
William H. Roper assumed his current position as Ropak's Chairman and Chief
Executive Officer in 1979. For 1994, Mr. Roper's total annual cash compensation
was $217,327, an increase of approximately 17.4% over 1993 which in turn was 4%
higher than in 1992. Mr. Roper also participates in the Company's Supplemental
Benefits Plan described below. In the opinion of the Compensation Committee and
the Board of Directors, Ropak's performance during his tenure as Chief Executive
Officer has been exceptional, particularly as compared to the vast majority of
companies which compete with Ropak and in light of an uncertain economic
environment during the past few years. Since 1979, the Company's sales have
grown from $3,319,000 to $128,398,000 and its product line has been diversified
to include a variety of packaging and material handling products, both acquired
and developed internally, which are within the Company's core expertise and
technology applicable to plastic packaging. The Committee believes that under
Mr. Roper's stewardship, and with the assistance of an experienced and highly
qualified management team, Ropak is effectively meeting the challenges of
maintaining its competitive position and continues to enhance the Company's
status as a leader in the plastic packaging industry in the United States and
Canada.
SUBMITTED BY THE COMPENSATION COMMITTEE ON FEBRUARY 24, 1995:
DOUGLAS H. MACDONALD AND DAVID A. WILLIAMS
COMPENSATION COMMITTEE (BOARD) INTERLOCKS AND INSIDER PARTICIPATION
The Executive Committee and the Compensation Committee perform the
functions of compensation committees for the Board of Directors. The current
members of the Executive Committee are Messrs. William H. Roper, Robert E. Roper
and C. Richard Roper. William H. Roper currently serves as Chairman of the Board
and Chief Executive Officer of Ropak and has served in that capacity since 1979;
Robert E. Roper currently serves as President of the Company and has served in
that capacity since 1978; and C. Richard Roper currently serves as Executive
Vice President and corporate Secretary of Ropak and has served in that capacity
since 1978. None of the members of the Compensation Committee are employed by
the Company.
COMPLIANCE WITH SECTION 16(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's
executive officers and directors, and persons who beneficially own more than 10%
of the Company's stock, to file initial reports of ownership and reports of
changes in ownership with the Securities and Exchange Commission. Executive
officers, directors and greater than 10% beneficial owners are required by
applicable regulations to furnish the Company with copies of all Section 16(a)
forms they file. Based solely upon a review of the copies of such forms
furnished to the Company, responses from the Company's executive officers and
directors in reply to monthly questionnaires, and information involving
securities transactions to which the Company was a party, the Company believes
that during the last two fiscal years ending December 31, 1994, all Section
16(a) filing requirements applicable to its executive officers, directors and
greater than 10% beneficial stockholders were complied with.
10
<PAGE> 12
EXECUTIVE COMPENSATION AND RELATED INFORMATION
SUMMARY EXECUTIVE COMPENSATION
The following Summary Compensation Table indicates the cash compensation
paid by the Company as well as certain other compensation, paid or accrued for
its fiscal years ended December 31, 1994, 1993 and 1992 to each of Ropak's Chief
Executive Officer and its four other highest paid executive officers whose
salary and bonus exceeded $100,000 for the fiscal year ended December 31, 1994:
<TABLE>
<CAPTION>
ANNUAL COMPENSATION (1) LONG TERM COMPENSATION
---------------------------- ---------------------------------
AWARDS PAYOUTS
OTHER ----------------------- -------
ANNUAL RESTRICTED SECURITIES ALL OTHER
COMPEN- STOCK UNDERLYING LTIP COMPEN-
NAME AND SALARY BONUS SATION AWARDS OPTIONS/ PAYOUTS SATION
PRINCIPAL POSITION YEAR ($) ($) ($) (2) ($) SARS (#) ($) ($) (3)
------------------ ---- -------- ------- ------- ---------- ---------- ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
William H. Roper 1994 $192,327 $25,000 $11,470 0 0 0 $ 3,133
Chairman and Chief 1993 185,044 0 1,909 0 0 0 2,248
Executive Officer 1992 177,960 0 26,537 0 0 0 8,367
Robert E. Roper 1994 $184,844 $25,000 $ 8,840 0 0 0 $ 3,143
President & General 1993 178,740 0 1,797 0 0 0 2,248
Manager, U.S. Container Group 1992 171,000 0 20,511 0 0 0 5,710
C. Richard Roper 1994 $184,844 $25,000 $ 6,798 0 0 0 $ 3,143
Vice President & 1993 178,740 0 1,152 0 0 0 2,248
General Manager of 1992 171,000 0 18,632 0 0 0 5,119
Engineering and Raw Materials
James R. Connell 1994 $138,200 $18,000 $ 796 0 0 0 $ 2,889
Vice President & 1993 132,960 0 747 0 0 0 1,884
General Manager, 1992 127,800 0 449 0 0 0 4,124
Materials Handling Group
James R. Dobell 1994 $125,600 $18,000 $ 293 0 0 0 $ 2,478
Vice President & 1993 122,634 0 963 0 0 0 1,508
General Manager, 1992 107,162 0 135 0 0 0 5,017
Canadian Container Group
</TABLE>
---------------
(1) Total perquisites did not exceed the lesser of $50,000 or 10% of the
executive's annual salary and bonus. Does not include license fees and
rental payments made by the Company to a group and to a partnership in which
three of the named individuals are members, as described below under the
caption "Certain Transactions".
(2) Represents the premium cost of life insurance for which officers are named
as beneficiaries.
(3) The totals in this column reflect the aggregate value of Company
contributions under its 401(k) Retirement Benefit Plan (in the case of Mr.
Dobell, contributions under its Canadian Registered Retirement Savings Plan)
and Company contributions under the Supplemental Benefits Plan described
below.
11
<PAGE> 13
STOCK OPTIONS
The following tables summarize stock option activity during the fiscal year
ended December 31, 1994 for each of the named officers shown in the table under
"Summary Executive Compensation" above:
OPTION/SAR GRANTS IN LAST FISCAL YEAR ENDED DECEMBER 31, 1994
<TABLE>
<CAPTION>
POTENTIAL
REALIZABLE VALUE
AT ASSUMED ANNUAL
NUMBER OF % OF TOTAL RATES OF STOCK
SECURITIES OPTIONS/SARS EXERCISE PRICE APPRECIATION
UNDERLYING GRANTED TO OR BASE FOR OPTION TERM
OPTIONS/SARS EMPLOYEES IN PRICE EXPIRATION ------------------
NAME GRANTED (#) FISCAL YEAR ($/SH) DATE 5% 10%
---- ------------ ------------ -------- ---------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
William H. Roper................. -0- -0- -- -- -- --
Robert E. Roper.................. -0- -0- -- -- -- --
C. Richard Roper................. -0- -0- -- -- -- --
James R. Connell................. 5,000 8.8% $ 5.00 2/7/99 $6,907 $15,263
James R. Dobell.................. -0- -0- -- -- -- --
</TABLE>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END
OPTION/SAR VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED IN-
SHARES OPTIONS/SARS AT FISCAL THE-MONEY OPTIONS/SARS AT
ACQUIRED YEAR-END (#) (1) FISCAL YEAR-END ($) (2)
ON EXERCISE VALUE --------------------------- ---------------------------
NAME DURING YEAR (#) REALIZED ($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- --------------- ------------ ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
William H. Roper (3)... -0- -0- 44,000 -0- $178,000 -0-
Robert E. Roper (3).... -0- -0- 44,000 -0- $178,000 -0-
C. Richard Roper (3)... -0- -0- 44,000 -0- $178,000 -0-
James R. Connell (4)... 16,000 $60,728(5) 27,390 -0- $122,728 -0-
James R. Dobell (6).... -0- -0- 38,390 -0- $167,455 -0-
</TABLE>
---------------
(1) All options listed in the table are incentive stock options exercisable at
option prices equal to fair market value on the date of grant.
(2) The value of unexercised in-the-money options is based upon the fair market
value for the Common Stock on December 31, 1994 of $9.50 per share less the
applicable option exercise price.
(3) Represents options expiring on February 19, 1996 which were fully vested at
December 31, 1994. On February 27, 1994, each of the three Roper brothers
agreed to cancel his options for 44,000 shares in exchange for a cash
payment received from LINPAC of $222,000.
(4) Represents options expiring on May 17, 1995 covering 10,890 shares, options
expiring on February 19, 1996 covering 11,500 shares, and options expiring
on February 7, 1999 covering 5,000 shares, all of which are fully vested as
of January 26, 1995. The expiration date of the options expiring on May 17,
1995 may be accelerated upon 30 days' prior notice at the option of Ropak if
the fair market value of the Common Stock equals or exceeds $13 7/8.
(5) The value of options exercised by Mr. Connell is based upon the fair market
value for the Common Stock on the date of exercise, December 29, 1994, of
$9.25 per share less the applicable option exercise price.
(6) Represents options expiring on May 17, 1995 covering 10,890 shares and
options expiring on February 19, 1996 covering 27,500 shares, all of which
are fully vested as of January 26, 1995. The expiration date of the options
expiring on May 17, 1995 may be accelerated upon 30 days' prior notice at
the option of Ropak if the fair market value of the Common Stock equals or
exceeds $13 7/8.
12
<PAGE> 14
LONG-TERM INCENTIVE PLANS -- AWARDS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
PERFORMANCE
NUMBER OF OR OTHER
SHARES, UNITS PERIOD UNTIL
OR OTHER MATURATION OR
NAME RIGHTS PAYOUT THRESHOLD TARGET MAXIMUM
---- ------------- ------------- --------- ------ -------
<S> <C> <C> <C> <C> <C>
William H. Roper.................... -0- -- -- -- --
Robert E. Roper..................... -0- -- -- -- --
C. Richard Roper.................... -0- -- -- -- --
James R. Connell.................... -0- -- -- -- --
James R. Dobell..................... -0- -- -- -- --
</TABLE>
The Company does not have any compensation plans involving stock
appreciation rights or long-term incentive plans.
ROPER EMPLOYMENT AGREEMENTS
Ropak has written employment agreements with William H. Roper, its Chairman
and Chief Executive Officer; Robert E. Roper, its President; and C. Richard
Roper, its Executive Vice President (each a "Roper Executive"). These employment
agreements commence as of January 1, 1995 and were approved by the Board of
Directors on February 24, 1995. The term of the agreement with William H. Roper
is for one year expiring December 31, 1995; the term of the agreement with
Robert E. Roper is for three years expiring December 31, 1997; and the term of
the agreement with C. Richard Roper is for four years expiring December 31,
1998.
The employment agreements provide for an annual base salary of $250,000 for
each Roper Executive. Commencing in 1995, each Roper Executive will be eligible
to participate in an incentive bonus program calculated in accordance with a
formula for each fiscal year in which he remains employed. In general terms, if
the Company's Adjusted Earnings (as defined in the employment agreement) for the
year exceeds that year's Target Base defined in the agreement, the Roper
Executive will receive incentive compensation equal to 9.26% of the amount by
which Company Adjusted Earnings exceeded that year's Target Base up to a maximum
allowable incentive bonus of $250,000 in any year. "Company Adjusted Earnings"
generally is defined as Ropak's income from operations adjusted to eliminate
extraordinary gains and losses unrelated to current year's operations, incentive
compensation for executive and management employees and provisions for income
taxes. The Target Base will be $7,871,000 for 1995, $11,628,000 for 1996,
$15,760,000 for 1997 and $20,306,000 for 1998. Any incentive bonus earned will
be paid within 90 days after the end of the applicable fiscal year.
The employment agreements require each Roper Executive to devote his full
business time to the activities of the Company while employed by Ropak and
contain non-competition and confidentiality provisions in favor of the Company.
The non-competition covenants apply for a period of seven years following
termination of employment. In consideration of non-competition and nondisclosure
covenants, Ropak is obligated to pay each Roper Executive the aggregate sum of
$1,320,000 payable in equal monthly installments over a term of six years
commencing with the first month after the latter of: (i) the last month in which
he is employed or (ii) the last month in which he is entitled to receive
severance payments described below. Non-competition payments are to be paid to
the Roper Executive and, in the event of his death or disability while employed
or during such six year term, then to his spouse or heirs for the remainder of
the six year payment period.
Each of the Roper Executive employment agreements provides the Roper
Executive is entitled to severance pay if his employment is terminated, other
than for cause or his voluntary resignation, equal to 150% of the amount of his
base salary, payable monthly for the unexpired original term of his employment
agreement. If a Roper Executive elects to resign or retire voluntarily prior to
the expiration of the original term of his employment agreement, he is required
(except in the event of death or disability) to provide at least six months
prior written notice to Ropak of the date of his voluntary retirement or
resignation. Failure to provide
13
<PAGE> 15
six months prior notice will relieve Ropak from liability to pay any incentive
bonuses not previously paid to the Roper Executive who elected to retire or
resign without the requisite prior notice.
Each Roper Executive is entitled while employed to receive fringe benefits
comparable to those generally available to all employees of the Company, health
insurance covering the Roper Executive and his spouse under Ropak's existing
health plan or a comparable health insurance plan, the right of participation in
the Company's 401(k) retirement savings plan or a comparable retirement plan,
continuation by the Company of premium payments on one million dollar life
insurance policies for the Roper Executive as presently constituted, and payment
by Ropak following retirement or in the event of pre-retirement death or
employment severance of benefits provided by the Ropak Supplemental Benefits
Plan described below. In the case of Messrs. Robert and Richard Roper, Ropak
will continue to cover the Roper Executive and his spouse under the Company's
existing or a comparable health plan at no cost to the Roper Executive until he
attains the age of 65, notwithstanding termination of employment for any reason
prior to attaining that age.
COMPENSATION OF DIRECTORS
Outside directors are compensated for their services on the Company's Board
of Directors at the rate of $6,000 per year plus $600 per meeting attended.
Members of the Audit Committee and the Compensation Committee of the Board are
compensated for their services at the rate of $600 per committee meeting
attended.
STOCK OPTION PLANS
For 1994 and prior years, Ropak Corporation provided a long-term incentive
to management and key employees through its stock option plans. These plans are
intended to foster management incentive and positively align and reinforce
management and shareholder interests. The plans were structured to allow the
Executive Committee (whose members serve as the Stock Option Committee) and the
Board of Directors discretion in creating employee equity incentives which
assisted the Company in motivating and retaining appropriate talent needed to
conduct its business successfully. Key personnel, managers and executive
officers were eligible for grants under the plans, which seek to implement the
Company's long-term incentive approach primarily through the utilization of
"incentive stock options" (as defined in the Internal Revenue Code of 1986). On
January 26, 1995, the Board of Directors determined that no further grant of
options will be authorized under the Company's stock option plans unless that
policy is subsequently changed by the Board.
Options to purchase Ropak Common Stock have been granted and are currently
outstanding under the Company's 1988 and 1991 stock option plans (the "1988
Plan," and "1991 Plan", respectively; herein sometimes collectively referred to
as the "Option Plans"). Each of the Option Plans were approved by stockholders.
Although the 1979 stock option plan has expired, options granted thereunder will
continue to be valid and exercisable. All options under the Option Plans were
granted at not less than 100% of market price on the date of grant.
Each of the Option Plans provide for the granting of incentive stock
options pursuant to Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code"). In addition, the 1991 Plan provides that options granted
thereunder may be either incentive stock options or, at the discretion of the
Company, stock options which do not qualify as incentive stock options under the
Code. To date, all options granted under the 1991 Plan have been incentive stock
options. Options under the Option Plans may be granted to officers, directors
and key employees of the Company and its subsidiaries.
Each of the Option Plans is administered by a Stock Option Committee
consisting of three members of the Board of Directors who are "disinterested" as
defined in Rule 16b-3 under the Securities Exchange Act of 1934. The Committee
determines the terms of options granted, including the exercise price, the
number of shares subject to the option and the terms and conditions of exercise.
The Stock Option Committee currently consists of Messrs. William H. Roper,
Robert E. Roper and C. Richard Roper.
14
<PAGE> 16
The exercise price of all incentive stock options for Common Stock granted
under the Option Plans must be at least equal to the fair market value of such
shares on the date of grant. With respect to any participant who owns stock
possessing more than 10% of the voting rights of the Company's outstanding
capital stock, the exercise price of any incentive stock option must be not less
than 110% of fair market value on the date of grant.
The maximum term for each incentive option under the Option Plans is ten
years, and to date no option has been granted for a term in excess of five years
under any of the Option Plans. In the event of termination of employment, the
optionee's option will terminate and may be exercised during a three month
period after termination to the extent the option was exercisable on the date of
termination. In the event termination of employment was caused by death or
permanent disability, the period of exercisability is extended under the Option
Plans to one year after the date of termination, but in no event after the date
the option would have expired in the absence of termination of employment. No
option granted under the Option Plans may be transferred by the optionee other
than by will or the laws of descent and distribution, and each option is
exercisable during the lifetime of the optionee only by such optionee. Shares
obtained upon exercise of an option may not be sold by an optionee during the
first six months after the date such option was originally granted.
1988 Plan. Under the 1988 Option Plan, up to 219,304 shares of Common Stock
may be issued (as adjusted for stock dividends declared by the Company from 1988
through 1991). At December 31, 1994, options to purchase 47,794 shares had been
exercised under the 1988 Option Plan, unexercised options were outstanding to
purchase 133,200 shares of Common Stock (all of which are exercisable in 1995)
at an average exercise price of $4.966 per share, and up to 36,000 shares were
available for future grants of options under the 1988 Option Plan. The Board of
Directors determined on January 26, 1995 that there will be no further stock
option grants under the 1988 Option Plan unless that policy is subsequently
changed by the Board. As of December 31, 1994, options covering a total of
40,170 shares exercisable at an average price of $4.556 per share were held by
three executive officers of the Company.
1991 Plan. Under the 1991 Option Plan, up to 325,500 shares of Common Stock
may be issued (as adjusted for a stock dividend declared by the Company in
1991). At December 31, 1994, options to purchase 62,750 shares had been
exercised under the 1991 Option Plan, unexercised options were outstanding to
purchase 217,750 shares of Common Stock (all of which are exercisable in 1995)
at an average exercise price of $5.4545 per share, and up to 45,000 shares were
available for future grants of options under the 1991 Option Plan. The Board of
Directors determined on January 26, 1995 that there will be no further stock
option grants under the 1991 Option Plan unless that policy is subsequently
changed by the Board. As of December 31, 1994, options covering a total of
188,500 shares exercisable at an average price of $5.4545 per share were held by
six executive officers of the Company.
SUPPLEMENTAL BENEFITS PLAN
The Board of Directors adopted a employee Supplemental Benefits Plan in
1987 for key executive and employees of the Company and its subsidiaries (the
"Supplemental Plan"). The Supplemental Plan provides, from general funds of the
Company, severance payments upon termination of employment to a participating
employee and provides for pre-retirement death benefits provided through life
insurance and for retirement benefits for which the Company has purchased
annuities to meet its obligations. The Company has entered into agreements
providing for pre-retirement death, supplemental retirement, or severance
payment benefits for seven employees under the Supplemental Plan, which include
all of the six executive officers of the Company. Each participating employee
voluntarily agreed to a $30,000 reduction in salary otherwise payable by the
Company, such reduction to be applied in either one installment or amortized
over a seven-year period. During the fiscal year ended December 31, 1994, the
Company accrued an actuarially calculated expense of $92,000 with respect to its
Supplemental Plan.
In December 1994, Ropak entered into a trust agreement with Wells Fargo
Bank, as trustee, for the purpose of contributing assets to an irrevocable trust
necessary to provide for certain liabilities under the
15
<PAGE> 17
Supplemental Plan. The Company has deposited $500,000 in cash and assigned
certain annuities and insurance policies to the trust for this purpose.
Benefits payable upon termination of employment prior to retirement vary as
among individual participants and increase with length of service. The following
table summarizes benefits payable upon termination of employment, pre-retirement
death or upon retirement at age 60 to each of Ropak's five most highly
compensated executive officers:
<TABLE>
<CAPTION>
SEVERANCE PAYMENT BENEFIT
----------------------------------------------------
IF TERMINATION
OCCURS IN THE PRE-RETIREMENT
IF FINAL YEAR DEATH BENEFIT OR
TERMINATION BEFORE POST-RETIREMENT
OCCURS IN RETIREMENT AGE BENEFIT PAYABLE
1995 60 FOR 10 YEARS
----------- -------------- -----------------
<S> <C> <C> <C>
William H. Roper............ (a) (a) $25,000 per annum
Robert E. Roper............. (a) (a) 25,000 per annum
C. Richard Roper............ (a) (a) 25,000 per annum
James R. Connell............ $46,115 $ 58,092(1998) 25,600 per annum
James R. Dobell............. 47,724 140,173(2009) 67,500 per annum
</TABLE>
---------------
(a) Since the named individual has or will attain retirement age provided by the
Supplemental Benefit Plan in 1995, in the event of termination of employment
he would receive the post-retirement benefit indicated in the last column of
the above table.
RETIREMENT BENEFIT PLANS -- U.S. 401(K) PLAN AND CANADIAN REGISTERED RETIREMENT
SAVINGS PLAN
Ropak maintains a savings plan qualified under Section 401(k) of the
Internal Revenue Code of 1986 for the benefit of all active U.S. employees and a
similar Registered Retirement Saving Plan for the benefit of Canadian employees.
The Ropak 401(k) Savings and Retirement Plan is a tax-qualified employee
savings and retirement plan covering the Company's eligible employees, including
executive officers and employees of the Company and its United States
subsidiaries (the "401(k) Plan"). Each eligible participant may defer,
contribute to, and have credited to his or her account under the 401(k) Plan up
to 15% of compensation each year, including any bonuses. The Company and its
subsidiaries, as employers, make a matching contribution equal to 25% of each
participant's contribution, up to a maximum matching contribution of 25% of 6%
of total compensation. To be eligible as a participant in the 401(k) Plan, the
participant must be a nonunion employee who has completed at least one year of
service with the Company. All contributions are subject to limitations imposed
by federal law for qualified plans.
Employee salary deferral contributions and matching employer contributions
are invested by the trustee of the 401(k) Plan, at the direction of each
participant, in accordance with the participant's designation among the
investment options available under the 401(k) Plan. There are seven investment
options, one of which is investment in the Company's Common Stock. Investment of
401(k) Plan assets in shares of the Company's Common Stock are made by purchases
on the open market by the 401(k) Plan trustee for the account of the 401(k)
Plan. The trustee of the 401(k) Plan is Mellon Bank, NA.
Salary reduction contributions and matching employer contributions are
fully vested and non-forfeitable. A participant's benefit under the 401(k) Plan
is payable upon early retirement (the date he or she attains age 55), upon
normal retirement date (upon attaining age 65), or upon later retirement. The
vested benefit is payable in the event of the participant's disability or death
or when the participant attains age 59 1/2 without retiring. A participant's
benefit is distributable entirely in cash and/or shares, or at the participant's
option, in installments. The installment option is not available to employees
whose employment terminates prior to their early retirement date or prior to
reaching age 59 1/2.
Salary reduction contributions and matching employer contributions are
fully vested and non-forfeitable. A participant's benefit under the 401(k) Plan
is payable upon early retirement (the date he or she attains
16
<PAGE> 18
age 55), upon normal retirement date (upon attaining age 65), or upon later
retirement. The vested benefit is also payable when the participant attains age
59 1/2, or in the event of the participant's disability or death. Participants
whose employment terminates prior to their early retirement date or prior to
reaching age 59 1/2 may also elect to receive an early distribution of their
benefits. A participant's benefit is distributable entirely in cash or, at the
participant's option, in installments.
The Ropak Registered Retirement Saving Plan ("RRSP") for Canadian employees
is similar to its 401(k) Plan. Each eligible participant may defer, contribute
to, and have credited to his or her account under the RRSP up to 18% of the
prior year's compensation each year, including any bonuses. The Company and its
subsidiaries, as employers, make a matching contribution equal to 25% of each
participant's contribution, up to a maximum matching contribution of 25% of 6%
of total compensation. To be eligible as a participant in the RRSP, the
participant must be a nonunion employee who has completed at least one year of
service with the Company, except that employee contributions are permitted after
90 days.
Except as described above, the Company has no other pension, retirement,
annuity, savings or similar benefit plan which provides compensation to its
executive officers or directors.
17
<PAGE> 19
COMPARATIVE STOCK PRICE GRAPH
The following graph sets forth the change in the Company's cumulative
shareholder return on its Common Stock starting with December 31, 1989, and at
the end of each fiscal year thereafter. The graph is based upon the market price
for the Company's Common Stock compared with the cumulative total returns of (i)
the NASDAQ Composite Index and (ii) an index of a group of peer companies in the
plastic packaging industry with similar market capitalizations selected by the
Company, consisting of AEP Industries Inc., CFI Industries Inc., Furon Inc., IPL
Inc., International Container Systems, Park-Ohio Industries Inc., Portage
Industries Corp. and Tuscarora Inc. Ropak's management notes that historical
stock price performance shown in the graph below cannot be considered indicative
of potential future stock price performance.
[CHART]
<TABLE>
<S> <C> <C> <C>
NASDAQ
Composite
Total Return Analysis Ropak Corporation Peer Group (US)*
12/29/89 100 100 100
12/31/90 77.41 67.11 85.42
12/31/91 123.24 102.03 134.25
12/31/92 116.52 114.66 156.40
12/31/93 125.48 132.00 181.21
12/30/94 170.30 172.97 176.44
</TABLE>
Source: Nordby International, Inc., Boulder, CO 800-926-7404
* NASDAQ Total Return calculated by Nordby International, Inc.
(1) The changes in the above graph are based upon the assumption that $100 had
been invested in Ropak Common Stock, in the NASDAQ Composite Index and in
the peer group index on December 31, 1989. The total cumulative dollar
returns on the graph represent the value that such investments with
dividends reinvested would have had at each of the dates indicated
(2) The closing prices of Ropak Common Stock on the dates set forth above were
as follows: December 31, 1989 - $6.75; 1990 - $4.75; 1991 - $6.875;
1992 - $6.50; 1993 - $7.00; and 1994 - $9.50. After adjustment for 10% stock
dividends paid during 1990 and 1991, the adjusted prices used for a $100.00
investment in Ropak Common Stock on December 31, 1989 in the above graph are
as follows: December 31, 1989 - $100.00 ($6.75 per 1989 share);
1990 - $77.41 ($5.225 per 1989 share); 1991 - $123.24 ($8.319 per 1989
share); 1992 - $116.52 ($7.865 per 1989 share); 1993 - $125.48 ($8.470 per
1989 share); and 1994 - $170.30 ($11.495 per 1989 share).
18
<PAGE> 20
CERTAIN TRANSACTIONS
PATENTS, KNOW-HOW AND TRADEMARKS
In exchange for the transfer to Ropak of certain patents covering
industrial shipping containers, the related know-how, the Ropak trademark and
all other attendant rights, in 1985 the Company agreed to pay Messrs. William,
Robert and C. Richard Roper, all of whom are directors, officers and principal
stockholders of the Company, their mother and their former brother-in-law
(collectively the "Roper Family"), for a period of ten years ending December 31,
1995, an annual amount equal to three percent of sales of products covered by
the assigned rights during each such year, not to exceed the royalties accrued
in 1985 (which amounted to $556,000) adjusted each year to reflect annual
changes in the Consumer Price Index. Aggregate royalties accrued under the
shipping container patents, know-how and trademark assignments amounted to
$764,000 during the year ended December 31, 1994.
Management believes that the terms of the assignments of patents, know-how
and trademarks are fair and reasonable to the Company and are not less favorable
to Ropak than could be obtained from unaffiliated third parties. Such
transactions were approved in 1985 by the disinterested majority of Ropak's
Board of Directors after considering all relevant factors.
REAL ESTATE LEASE
The Company leases approximately 7,500 square feet of office and production
space in Fullerton, California from Six Sixty Ltd., a California partnership
consisting of William, Robert and C. Richard Roper. This lease is for a term of
five years, expires on April 30, 1999 and provides for a monthly rental of
$6,900 plus taxes, maintenance, insurance and utilities. The lease was approved
by the disinterested majority of Ropak's Board of Directors. During the year
ended December 31, 1994, Ropak paid $82,800 as rent under the lease. The
Company's management believes that the terms of its lease are no less favorable
to the Company than could be obtained from nonaffiliated lessors of comparable
facilities in the local area. The Company intends to purchase this real property
from the Six Sixty Ltd. partnership during 1995 at the current fair market value
of the property.
OTHER MATTERS
INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors appointed Deloitte & Touche to act as the Company's
independent public accountants for the fiscal year ending December 31, 1994.
Deloitte & Touche and its predecessor, Touche Ross & Co., has acted as the
Company's independent public accountants since 1988, and has advised the Company
that it had no direct or indirect financial interest in the Company or any
subsidiary during the time it has acted as independent public accountants for
the Company. The Company expects that a representative of Deloitte & Touche will
be present at the Annual Meeting and will have the opportunity to make a
statement, if he or she so desires, and that such representative will be
available to respond to appropriate questions.
DATE FOR SUBMISSION OF STOCKHOLDER PROPOSALS FOR 1996 ANNUAL MEETING
Any proposal, relating to a proper subject, which a stockholder may intend
to present for action at the 1996 annual meeting of stockholders, and which such
stockholder may wish to have included in the Company's proxy materials for such
meeting, in accordance with the provisions of Rule 14a-8 promulgated under the
Securities Exchange Act of 1934, must be received in proper form by the Company
at its principal office not later than December 31, 1995. It is suggested any
such proposal be submitted by certified mail -- return receipt requested.
19
<PAGE> 21
OTHER BUSINESS OF THE MEETING
Management is not aware of any matters to come before the Annual Meeting
other than those stated in this Proxy Statement. However, inasmuch as matters of
which management is not now aware may come before the meeting or any adjournment
thereof, the proxies confer discretionary authority with respect to acting
thereon, and the persons named in such proxies intend to vote, act and consent
in accordance with their best judgment with respect thereto. Upon receipt of
such proxies (in the form enclosed and properly signed) in time for voting, the
shares represented thereby will be voted as indicated thereon and in this Proxy
Statement.
By Order of the Board of Directors,
WILLIAM H. ROPER,
Chairman of the Board
ROBERT E. ROPER,
President
Fullerton, California
March 27, 1995
20
<PAGE> 22
--------------------------------------------------------------------------------
PROXY ROPAK CORPORATION
ANNUAL MEETING OF STOCKHOLDERS
MAY 16, 1995
The undersigned stockholder of ROPAK CORPORATION hereby appoints WILLIAM H.
ROPER and ROBERT E. ROPER, and each of them, the true and lawful attorneys,
agents and proxies of the undersigned, with full power of substitution to each
of them to vote all the shares of Common Stock which the undersigned may be
entitled to vote at the Annual Meeting of Stockholders of the Corporation to be
held on May 16, 1995, and at any adjournment of such meeting, with all powers
which the undersigned would possess if personally present, for the following
purposes:
<TABLE>
<S> <C> <C> <C>
1. ELECTION OF / / FOR each nominee listed below / / WITHHOLD AUTHORITY to vote
CLASS II DIRECTORS (except as marked to the contrary below); for each nominee listed below:
</TABLE>
ROBERT E. ROPER NIGEL V. ROE DAVID A. WILLIAMS
(INSTRUCTION: To withhold authority to vote for any individual nominee, write
that nominee's name in the space provided above.)
2. / / WITHHOLD AUTHORITY in their discretion upon such other matters as may
properly come before the meeting.
(Continued and to be signed on the other side)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Continued from other side)
This Proxy will be voted as directed or, if no direction is indicated, will
be VOTED FOR the election of the nominees named on the reverse hereof.
The undersigned hereby acknowledges receipt of the Notice of Annual Meeting
and Proxy Statement dated March 27, 1995.
Dated:
-------------------------
(Signature)
-------------------------
(Signature)
-------------------------
(Print Name Here)
Please sign your name or
names exactly as
stenciled. When signing
as attorney, executor,
administrator, trustee,
guardian or corporate
officer, please give your
full title as such.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
--------------------------------------------------------------------------------
<PAGE> 1
ROPAK
Corporation
March 27, 1995
To the Stockholders of Ropak Corporation:
On March 21, 1995, LINPAC Mouldings Ltd. of Birmingham, England commenced a
tender offer to purchase any and all of the common stock in Ropak Corporation
for a cash price of $11.00 per share. Tender offer materials are being sent
directly to our stockholders.
Ropak's Form 10-K Annual Report for its fiscal year ended December 31, 1994
and Ropak's proxy materials for its 1995 Annual Meeting of Stockholders are
enclosed with this letter. We suggest all stockholders review that information
as well as LINPAC's tender offer materials in determining whether or not to
accept LINPAC's offer.
At a meeting held on March 21, 1995, Ropak's Board of Directors (the
"Board") met to consider LINPAC's tender offer. The Board is heavily weighted
with parties having relationships with LINPAC and, therefore, did not take a
position either favorable or unfavorable.
Messrs. William H. Roper, Robert E. Roper and C. Richard Roper (the "Roper
Brothers") have each sold all of their equity interests in Ropak to LINPAC on
February 27, 1995 at $10.50 per share of common stock and concurrently entered
into employment agreements with Ropak that are guaranteed by LINPAC. For further
information as to these transactions, we refer you to the proxy materials
enclosed.
The Board and the Roper Brothers believe that you, a Ropak stockholder,
must be given the opportunity to come to your own independent decision as to
whether acceptance of LINPAC's offer is in your best interests and to then act
accordingly. The Roper Brothers believe the LINPAC tender offer at $11.00 per
share is fair and recommend that stockholders favorably consider its acceptance.
It is significant that several stockholders of Ropak have accepted prices
in privately-negotiated transactions ranging from $10.50 per share to $11.00 per
share for sales of their equity interests in Ropak common stock including
institutional investors (such as Fidelity Management & Research Co., Harvest
Management Group, Bear Stearns Securities Corp. and Chesapeake Partners), the
Roper Brothers and a former director of Ropak who served as Chairman of the
Special Committee which found LINPAC's previous proposal to be inadequate.
Equally as significant is the indicated willingness by other officers, directors
and senior management to accept the LINPAC tender offer of $11.00 per share.
LINPAC currently owns 51.6% of the total outstanding common stock, plus
preferred shares of a Canadian subsidiary exchangeable for additional shares
that offer LINPAC the option of increasing its total beneficial ownership to
57.2% before any additional shares are purchased through its tender offer.
It is LINPAC's present intent to cause Ropak to make an application for
termination of the registration of Ropak's common stock on the Nasdaq National
Market and under the Securities Exchange Act of 1934 after the purchase of
tendered shares if the requirements for termination of such registrations are
satisfied.
EXHIBIT 10.2 Page 1
<PAGE> 2
LINPAC has stated it does not intend to sell its equity interest in Ropak
and would not currently approve any proposed business combination involving
Ropak and another third party. It is not likely that another suitor would enter
the bidding in light of LINPAC's controlling position.
I again re-emphasize the Board of Directors as a whole makes no
recommendation to any stockholder whether to tender or refrain from tendering
their shares. Stockholders must make their own decision and should consult their
individual financial advisers.
I do not hesitate, however, to personally recommend your acceptance of this
offer. The $10.50 per share price was the result of strenuous negotiations in
all of our best interests. LINPAC has now improved this by offering $11.00 per
share timed so every stockholder has direct access to the most current financial
information available.
We thank all stockholders for their past support and confidence and will
continue to exert our best efforts for the Company.
Very truly yours,
/s/ WILLIAM H. ROPER
William H. Roper,
Chairman and Chief Executive Officer
EXHIBIT 10.2 Page 2
<PAGE> 1
FOR IMMEDIATE RELEASE
Tuesday, March 21, 1995
ROPAK CORPORATION'S BOARD RESPONDS TO LINPAC TENDER OFFER
FULLERTON, California --- (NASDAQ/NMS Symbol: ROPK). ROPAK CORPORATION
announced its Board of Directors has met and considered a tender offer by
LINPAC Mouldings Limited of Birmingham, England to purchase any and all shares
of Ropak's common stock for $11.00 per share in cash.
The ROPAK Board is substantially composed of parties having an interest in this
transaction and is unable to take a position with respect to the tender offer.
It was also determined Ropak will not seek to engage the services of an
investment banker to evaluate LINPAC's tender offer. In reaching its
decisions, Ropak's Board noted that LINPAC's tender offer is not subject to
financing or minimum tender conditions.
Messrs. William H. Roper, Robert E. Roper and C. Richard Roper, founders,
officers and directors of Ropak, have advised the Board they believe the offer
is fair and individually recommend that stockholders give favorable
consideration to accepting the offer.
William Roper said "Other officers, directors and senior management of Ropak
have indicated they will accept the LINPAC tender offer".
LINPAC's most recent report to the Securities and Exchange Commission indicates
that LINPAC beneficially owns 2,841,303 shares of ROPAK's common stock
(assuming full exchange of preferred shares in ROPAK's Canadian subsidiary
owned by LINPAC), or approximately 57.2%.
ROPAK is the leader or a major factor in markets for plastic shipping
containers and returnable pallet-sized containers supplied by ten plants
strategically located throughout the United States and Canada. ROPAK's
products are widely used in agricultural, fishing, dairies and food processing
as well as in the chemical, automotive, paint, petroleum and other industries.
Privately-held LINPAC manufactures a wide variety of plastic, paper and metal
packaging products and operates approximately 50 manufacturing facilities (of
which eight are located in the United States) with over 7,000 employees
worldwide.
ROPAK Contact:
William H. Roper, Chairman
(714) 870-9757
EXHIBIT 10.3 Page 1
<PAGE> 1
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 25th day of
September, 1994, by and between;
LINPAC MOULDINGS LTD. (the "Parent"), with its principal office at
Deykin Avenue, Witton, Birmingham B6 7HY, England;
LINPAC MOULDINGS, INC., a Delaware corporation in formation ("LinPac")
and a wholly owned subsidiary of the Parent;
WILLIAM H. ROPER and his spouse RUTH ROPER, residents of 12 Rue
Biarittz, Newport Beach, California 92660;
ROBERT E. ROPER and his spouse NANCY ROPER, residents of 3802 Holden
Circle, Los Alamitos, California 90720;
C. RICHARD ROPER and his spouse MARGO ROPER, residents of 1383 N.
Mustang, Orange, California 92667;
C. RICHARD ROPER in his capacity as custodian for certain minor
children under the Uniform Transfers to Minors Act (the "Custodian");
WILLIAM H. ROPER as sole current Trustee for that certain Roper Family
Trust under trust agreement dated September 6, 1977, as amended to
date, established by Frank Roper and Elvere Roper as settlors (the
"Roper Family Trust");
WILLIAM H. ROPER as sole current trustee for the ROPER FAMILY TRUST
DATED 4/12/94 FBO WILLIAM H. ROPER UTA 9/6/77, AS AMENDED (the
"William Trust");
ROBERT E. ROPER as sole current trustee for the ROPER FAMILY TRUST
DATED 4/12/94 FBO ROBERT E. ROPER AND/OR CHILDREN UTA 9/6/77, AS
AMENDED (the "Robert Trust"); and
C. RICHARD ROPER as sole current trustee for the ROPER FAMILY TRUST
DATED 4/12/94 FBO C. RICHARD ROPER AND/OR CHILDREN UTA 9/6/77, AS
AMENDED (the "Richard Trust").
For convenience of reference, William H. Roper and Ruth Roper, Robert E. Roper
and Nancy Roper, C. Richard Roper and Margo Roper, the Custodian, the Roper
Family Trust, the William Trust, the Robert Trust and the Richard Trust are
sometimes herein collectively called the "Shareholders".
EXHIBIT 10.4 Page 1
<PAGE> 2
PREAMBLE
WHEREAS, ROPAK CORPORATION is a Delaware corporation (the
"Company") with its principal office located at 660 S. State College Blvd.,
Fullerton, California 92631-5138;
WHEREAS, the Shareholders are founders, executive officers and
directors of the Company, and own of record and beneficially the number of
issued and outstanding shares of common stock of the Company (the "Common
Stock") listed below:
<TABLE>
<S> <C> <C>
William H. Roper and Ruth Roper . . . . . . . . . . . . . . . . . . 225,138 shares
Robert E. Roper and Nancy Roper . . . . . . . . . . . . . . . . . . 252,554 shares
C. Richard Roper and Margo Roper . . . . . . . . . . . . . . . . . 268,279 shares
C. Richard Roper Custodian . . . . . . . . . . . . . . . . . . . . 7,319 shares
Roper Family Trust . . . . . . . . . . . . . . . . . . . . . . . . 238,183 shares (a)
</TABLE>
___________
(a) The Shareholders represent to LinPac and Parent that shares of Common
Stock listed in the table as owned of record by the Roper Family Trust
are currently in the process of being distributed and transferred, in
equal shares, to the William Trust, the Robert Trust and the Richard
Trust. Such distributions and transfers are in accordance with
applicable provisions of trust documents governing the Roper Family
Trust requiring certain distributions upon the death of Elvere Roper,
which death occurred on April 12, 1994.
WHEREAS, each of William H. Roper, Robert E. Roper and C.
Richard Roper also hold the right to purchase 44,000 shares of the Common Stock
under stock options granted by the Company;
WHEREAS, the shares of Common Stock owned by the Custodian are
referred to herein as the "Custodian Shares";
WHEREAS, upon execution and delivery of this Agreement by all
of the Shareholders, as promptly as possible thereafter LinPac and Parent will
propose to the Company's Board of Directors and stockholders of the Company,
for their consideration and approval as required by applicable law, and will
agree with the Shareholders upon terms and conditions set forth herein, an
offer for LinPac to merge with the Company for the consideration and on terms
and conditions described below (the "Merger");
WHEREAS, LinPac and Parent will agree to pay all costs and
expenses incurred by LinPac in proposing the Merger and in seeking to implement
and consummate the same, all without seeking reimbursement of such costs and
expenses from the Company or from the Shareholders if Merger is not
successfully consummated for any reason (other than intentional material
misrepresentations on the part of the Company or the Shareholders, as the case
may be) and will further agree to reimburse the Company and Shareholders for
all
EXHIBIT 10.4 Page 2
<PAGE> 3
reasonable costs and expenses incurred by Company and Shareholders in seeking
to implement and consummate the Merger if LinPac or Parent shall default in
performance of their obligations hereunder or as provided by the Merger
Agreement;
WHEREAS, the Shareholders desire to have their shares of
Common Stock converted into cash upon the terms and conditions provided by the
Merger and, for the consideration described below, to enter into other
agreements as to their sale of real property, employment and covenants not to
compete as contemplated by the Merger; and
WHEREAS, upon execution and delivery of this Agreement by
LinPac and Parent, the Shareholders have agreed to propose, favorably
recommend, support and vote for a merger of the Company with LinPac on the
terms described herein;
AGREEMENT
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants, agreements and promises herein contained, the parties
agree as follows:
SECTION 1. THE MERGER AND THE MERGER AGREEMENT.
For the purposes of this Agreement, the term "Merger" shall
mean and be defined as a corporate merger reorganization transaction between
the Company and LinPac and, subject to the consummation of such corporate
reorganization, agreements to which certain Shareholders are parties,
incorporating the following terms:
1.1. Corporate Merger.
(a) LinPac would be merged into the Company with the Company
being the surviving corporation pursuant to an Agreement and Plan of Merger
(the "Merger Agreement"). The time and date of closing under the Merger
Agreement when a Certificate of Merger is filed with the Secretary of State of
Delaware following ratification and approval of the Merger by Company
stockholders is herein called the "Effective Time".
(b) In the Merger all holders of the Company's Common Stock,
other than Parent and LinPac, and all holders of other securities exercisable
or convertible into Common Stock upon the exercise or conversion thereof in
accordance with the terms of governing instruments, will receive $10.50 per
share in cash for their Common Stock at the Effective Time; provided, however,
that Parent, LinPac and Company will arrange for holders of outstanding stock
options and warrants to receive, in consideration of the cancellation thereof
and in lieu of exercising the same prior to the Effective Time, cash equal to
the difference between $10.50 per
EXHIBIT 10.4 Page 3
<PAGE> 4
share issuable upon exercise less the applicable exercise price per share
without regard to whether such outstanding options and warrants would then be
exercisable in the absence of consummation of the Merger.
(c) The Merger Agreement, when executed, will reflect the
terms of this Agreement and such other terms and conditions as are typical to a
corporate merger transaction. The parties to the Merger Agreement will be the
Company, LinPac, Parent and the Shareholders. The Merger Agreement will
contain appropriate and customary representations and warranties by the parties
and customary and necessary conditions to closing at the Effective Time;
provided, however, that representations and warranties by the Company and the
Shareholders will not survive the closing, and shall expire at the Effective
Time of the merger of LinPac with the Company, except for: (i) representations
and warranties of the Company and Shareholders in agreements contemplated by
Section 1.4 hereof; (ii) representations and warranties of the Shareholders as
to the number of shares of the Company's capital stock issued and outstanding
and reserved for issuance pursuant to options, warrants, or other securities
exercisable or convertible into, or any calls or commitments or agreements of
any kind relating to, the Company's capital stock; and (iii) representations
and warranties of the Shareholders as to their ownership, free and clear of all
encumbrances, of shares of the Company's Common Stock.
1.2 LinPac Option. At the time of approval of the Merger
Agreement by a majority of the independent members of the Company's Board of
Directors (the "Board"), if so approved, the Company shall grant Parent or
LinPac, as Parent shall direct an option to purchase previously authorized and
unissued shares of Common Stock from the Company at an option price of $10.50
per share for a number of shares equal to ten percent (10%) of the total
outstanding Common Stock of the Company calculated on a fully-diluted basis
(the "LinPac Option"). The term of the LinPac Option shall expire at the
expiration of the second business date following the date on which there has
been a final tabulation of ballots entitled to be cast at a meeting of
stockholders of the Company called to consider and vote upon the Merger,
subject to earlier termination only in the event of a material breach by Parent
or LinPac in the performance of their obligations under the Merger Agreement.
Should the Board elect to engage the services of an independent third party to
render an opinion as to the fairness of transactions contemplated by the Merger
prior to the vote of stockholders, the LinPac Option shall remain valid and
binding for its term notwithstanding the opinions expressed in any one or more
of such third party fairness opinions.
1.3. Equitable Price Adjustment. If there shall be any stock
split, reverse stock split, stock dividend, merger or similar reorganization,
recapitalization, reclassification or other transaction affecting generally the
Common Stock of the Company, or any extraordinary or stock dividend paid on or
with respect to the capital stock of the Company, appropriate and equitable
adjustments
EXHIBIT 10.4 Page 4
<PAGE> 5
shall be made hereunder with respect to the price of $10.50 set forth in
Sections 1.1(b) and 1.2 hereof so that the aggregate relative rights and
obligations of the parties hereto shall not be adversely affected by any such
action.
1.4. Agreements with Shareholders and Affiliates. At the
Effective Time of the Merger, and subject to the condition that the Merger is
consummated, the Company (with its obligations to be guaranteed by Parent) and
the Shareholders shall enter into the following agreements:
(a) The Company shall purchase from a partnership owned by
the Shareholders certain real property known by the street address of
660 South State College Boulevard, Fullerton, California, currently
leased by the Company. The purchase price to be paid for such real
property shall be payable in cash and shall be equal to the then
current fair market value of such real property as mutually agreed
upon by Parent and the said partnership or, should they fail to agree,
as determined by an independent appraisal. The parties shall open an
escrow for the purchase and sale of such real property not more than
60 days after the Effective Time, providing for a closing of such real
property purchase and sale within 30 days thereafter.
(b) The Company, on the one hand, and each of William H.
Roper, Robert E. Roper and C. Richard Roper shall enter into an
Employment and Noncompetition Agreement providing for the following:
(i) William H. Roper shall be employed as an
executive officer of the Company for a term of one year with
duties relating primarily to strategic and market planning and
business expansion similar to those duties for which he is now
responsible;
(ii) Robert E. Roper shall be employed as an
executive officer of the Company for a term of three years to
perform duties associated with acting as general manager of
United States container operations similar to those duties for
which he is now responsible;
(iii) C. Richard Roper shall be employed as an
executive officer of the Company for a term of four years to
perform duties associated with acting as manager of design and
engineering and management of raw materials purchases similar
to those duties for which he is now responsible;
(iv) In each case, the base salary of
EXHIBIT 10.4 Page 5
<PAGE> 6
such person (the "employee") shall be $250,000 per annum
payable in accordance with the Company's normal payroll
periods;
(v) In each case the principal place of business at
which the employee's duties are to be performed shall be
located at or within a ten mile radius of the Company's
existing principal office in Fullerton, California;
(vi) In each case, the employment agreement shall
define that the employee will be deemed to have provided full
time service under the requirements of his employment
agreement if he shall devote 180 working days per year to the
business affairs of the Company;
(vii) In each case, the employee will be entitled to
receive fringe benefits comparable to those generally
available to all employees (including, without limitation,
health insurance for the employee and his spouse under the
Company's existing health plan or a comparable health
insurance plan and the right of participation in the Company
401 (k) retirement savings plan or a comparable retirement
plan), reimbursement for travel and related expenses incurred
for the Company's business, the right to first class domestic
airline and business class international airline and first
class hotel accommodations when traveling on Company business,
continuation by the Company during the term of employment of
premium payments on one million dollar life insurance policies
for each such employee as presently constituted, and payment
by the Company following retirement or in the event of
pre-retirement death or employment severance of all benefits
provided by the employee's Supplemental Benefits Plan as
presently constituted;
(viii) In the case of Robert E. Roper and C. Richard
Roper, the employment agreement shall provide that the Company
will continue to cover the employee and his spouse under the
Company's existing or comparable health plan at no cost to the
employee until he shall attain the age of 65, notwithstanding
termination of employment for any reason prior to attaining
that age;
EXHIBIT 10.4 Page 6
<PAGE> 7
(ix) During the term of his employment, each such
employee will be eligible to participate in an incentive bonus
program providing for a payment to the employee for each
fiscal year of the Company in which he was employed,
commencing with the fiscal year ending December 31, 1995, of
not more than $250,000 per year, with the actual amount of
such incentive bonus, if any, to be calculated in accordance
with the formula set forth in Exhibit A attached hereto. Such
incentive bonus shall be payable within 90 days after the end
of the fiscal year to which it relates. If the employment of
the employee is terminated for any reason other than (A) acts
of moral turpitude, or (B) failure on the part of the employee
to provide full time service to the Company within the meaning
of subparagraph (vi) above, he will be eligible to receive
that percentage of his incentive bonus attributable to the
full year in which his employment was terminated which is in
the same proportion that the number of months worked during
such year bears to twelve months, but he shall not be entitled
to an incentive bonus for any subsequent year.
(x) If the employment of the employee is terminated
by the Company for any reason or for no reason prior to the
expiration of the term of his employment agreement, the
employee will receive severance payments payable monthly for
the remaining original term of his employment agreement equal
to 150% of the amount of his aggregate base salary for such
unexpired term of his employment agreement; provided, however,
the Company shall have no obligation to make such severance
payments to the employee if his employment was terminated by
reason of (A) acts of moral turpitude, or (B) failure on the
part of the employee to provide full time service to the
Company within the meaning of subparagraph (vi) above.
(xi) Should the employee elect to resign or retire
voluntarily prior to the expiration of the original term of
his employment agreement, the employee shall provide at least
six months prior written notice to the Company of the date of
his voluntary retirement or resignation except in the event
his retirement or resignation is caused by death or
disability. Except in the event of death or
EXHIBIT 10.4 Page 7
<PAGE> 8
disability, failure to provide such prior six months notice
shall relieve the Company from liability to pay an incentive
bonus for any portion of the year in which he shall retire or
resign and shall also relieve the Company from liability to
pay any incentive bonus for the immediately preceding prior
year if the same has accrued but is not yet payable.
(xii) Each employment agreement shall contain
covenants on the part of the employee against competition with
the Company and its subsidiaries during the period of his
employment by the Company and for a term of seven years
thereafter, acceptable in form and substance to the Company
and Parent. In consideration of such covenants against
competition, the Company shall pay the employee the aggregate
sum of $1,320,000, payable in equal monthly installments over
a term of six years commencing with the first month after the
latter of (A) the last month in which he was employed, or (B)
the last month in which he is entitled to receive severance
payments required under subparagraph (x) above. Such payments
shall be made directly to the employee and in the event of his
death or disability while employed or during such six year
term, then to his spouse (and if his spouse shall not survive,
then to his heirs, legatees and devisees) for the remaining
term of such six year period and notwithstanding the death or
disability of the employee.
(c) The Company shall continue to be obligated to make
payments to members of the Roper family under the terms of 1985
agreements relating to the sale of patent rights and related know-how,
all as presently constituted, for the remaining term thereof through
the year ended December 31, 1995.
1.5. Presentation to the Board and Stockholders.
(a) The parties agree as soon as reasonably possible to
prepare a mutually acceptable definitive draft of the Merger Agreement with all
material exhibits thereto, including without limitation the form of all other
agreements contemplated herein, for presentation to all independent members of
the Board. Parent and LinPac agree that an authorized representative of Parent
and LinPac will be available in person upon reasonable notice at a meeting of
the Board to respond to any questions reasonably presented by members of the
Board as to the Merger, LinPac's source of financing the Merger, and any other
subject which is proper for inquiry by
EXHIBIT 10.4 Page 8
<PAGE> 9
members of the Board in the discharge of their fiduciary duties to
stockholders, employees and customers of the Company.
(b) At the time of approval of the Merger Agreement by a
majority of the independent members of the Company's Board of Directors (the
"Board"), if so approved, the Board shall authorize the preparation of proxy
materials for a meeting of Company stockholders to be called as promptly as
reasonably practicable for the purpose of enabling Company stockholders
entitled to vote thereon to consider and vote upon a proposal to approve the
Merger. Parent and Linpac acknowledge that the Board may elect that the Board
engage the services of an independent party to render an opinion as to the
fairness of the transactions contemplated by the Merger to the stockholders of
the Company. Those members of the Board voting in favor of the Merger
Agreement shall favorably recommend to stockholders of the Company that
stockholders vote in favor of approval of the Merger, except that any such
independent member of the Board may elect to reconsider such recommendation if:
(i) a third party opinion of a nationally recognized investment banking firm,
should the Board elect to obtain the same, as to the fairness of transactions
contemplated by the Merger to stockholders of the Company should be
unfavorable, or (ii) there shall arise material legal impediments to the
consummation of the Merger, or (iii) there shall be on the part of Parent or
LinPac any material misrepresentations in the Merger Agreement or material
failure to perform their obligations thereunder.
SECTION 2. GRANT AND EXERCISE OF OPTION
2.1. Option.
(a) Purchase and Sale Options.
(i) Each Shareholder hereby irrevocably grants
LinPac an option (the "Purchase Option") to purchase any or all of the capital
stock of the Company owned by the Shareholder (except the Custodian Shares)
together with all options or other rights to acquire capital stock of the
Company (whether now owned or hereafter acquired) at the Exercise Price set
forth below. Each of the Shareholders represent they will not transfer any
options or other rights to purchase Company capital stock, or shares of Company
capital stock acquired upon exercise thereof, to any third party other than
LinPac. At the request of LinPac upon any exercise in full of the Purchase
Option, each Shareholder shall exercise his stock option under the Company's
1991 stock option plan and shares issued upon exercise thereof shall be
purchased by LinPac in accordance with this Agreement.
(ii) LinPac hereby irrevocably grants all the
Shareholders an option (the "Sale Option") to sell the Common Stock (the "Roper
Stock") and options (the "Roper Options") listed in the Preamble (except the
Custodian Shares) to LinPac at the Exercise Price set forth below; provided;
however, that the Sale Option will
EXHIBIT 10.4 Page 9
<PAGE> 10
only be available if the Shareholders together sell all of the Roper Stock and
Roper Options to LinPac (net of any Roper Stock or Roper Options previously
purchased by LinPac in accordance with its partial exercise of the Purchase
Option, if previously exercised).
(b) Possible Adjustments to Exercise Price.
Notwithstanding anything herein to the contrary, if the Merger is consummated
within one year from the date hereof upon the terms specified herein, any
previous exercise of the Purchase Option by LinPac and/or the Sale Option by
the Shareholders shall be adjusted as follows: in such event the parties shall
take all action necessary for Shareholders to return to LinPac any amount per
share previously paid pursuant to exercises of the Purchase Option and Sale
Option in excess of $10.50 per share for the Roper Stock and in excess of
$5.0455 per share for the Roper Options. If the Merger is not consummated
within one year from the date hereof, previous exercises of the Purchase Option
by LinPac and/or the Sale Option by the Shareholders may be subject to further
adjustment in certain other Change of Control circumstances as provided by the
provisions of Section 2.3 below.
2.2. Exercise.
(a) Exercise(s) of Purchase Option. The Purchase Option
may be exercised by LinPac at any time hereafter through the close of business
on February 28, 1995 by written notice to each Shareholder of LinPac's election
to exercise given on or prior to February 28, 1995, specifying the number of
shares (and options) LinPac desires to purchase.
(b) Exercise of Sale Option. The Sale Option may be
exercised by the Shareholders at or prior to the close of business on February
28, 1995 by written notice from all the Shareholders of the Shareholders'
election to exercise given after the first to occur of the following: (a) the
vote of the Board not to approve the Merger or, so long as the Merger has been
presented for consideration and a vote of the Board at one or more meetings
prior to November 30, 1994, the failure by January 31, 1995 to obtain a
favorable vote of the Board to approve the Merger; (b) the vote of the
Company's Common Stockholders not to approve the Merger or, so long as the
Merger has been presented for consideration and a vote of the Board at one or
more meetings prior to November 30, 1994, the failure by February 23, 1995 to
obtain a favorable vote of the Company's Stockholders to approve the Merger;
(c) the failure to consummate the Merger by February 24, 1995 as a result of a
default by LinPac or Parent under the Merger Agreement or this Agreement; (d) a
Change of Control (as hereafter defined) of the Company; or (e) any other event
occurring prior to February 24, 1995, such as, for example, the effect of legal
proceedings instituted by third parties, which shall preclude any reasonable
possibility of consummating the Merger on or prior to February 24, 1995 except
for LinPac's refusal to consummate the Merger due to a material breach on the
part of the Company or the Shareholders under the Merger Agreement or this
Agreement. A notice of election pursuant to this Section is referred to as an
"Option Notice". For purposes hereof,
EXHIBIT 10.4 Page 10
<PAGE> 11
a "Change of Control" shall mean:
(i) a merger, consolidation or similar transaction involving
the Company other than the Merger;
(ii) a sale, lease, transfer or other disposition of at least
a majority of the property, assets or business of the Company in one
or a series of transactions;
(iii) the acquisition 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
the parties hereto, of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 50% or more of
either the then outstanding shares of Common Stock or the combined
voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors; and
(iv) a liquidation or dissolution of the Company.
2.3. Exercise Price.
(a) Base Exercise Prices. The Exercise Price for Common
Stock provided by each of the Purchase Option and the Sale Option shall be
$14.75 per share of Common Stock. The Exercise Price for the Roper Options
provided by each of the Purchase Option and the Sale Option shall be $9.2955
per share of Common Stock represented by the Roper Options. The Exercise Price
for any other options or rights to acquire Common Stock shall be $14.75 per
share of Common Stock which may be acquired thereby less any amounts payable
thereunder. Possible adjustments to the respective Exercise Prices may occur
as a result of a subsequent consummation of the Merger as provided by Section
2.1(b), certain other Change of Control circumstances as provided by the
provisions of Section 2.3(b) below, or a change affecting the capitalization of
the Company as provided by the provisions of Section 2.4 below.
(b) Adjustment for Other Change in Control. In the event
of a Change of Control at any time prior to June 30, 1996, the aggregate amount
payable by LinPac to each Shareholder upon exercise of the Sale Option and/or
Purchase Option shall be adjusted downward, pursuant to the determination of an
independent appraiser chosen by the parties, by the amount necessary to reflect
any salary, benefits or other compensation or consideration to be received by
such Shareholder in connection with the Change of Control transaction. For
this purposes, the independent appraisal (i) shall not ascribe any value to the
first $250,000 in compensation to be received by such Shareholder in connection
with the Change of Control transaction, and (ii) shall apply a discount to
present value factor for future salary, benefits or other compensation or
consideration to be received by such Shareholder in connection with the Change
of Control transaction calculated from the first date of exercise of the
Purchase Option and/or Sale Option
EXHIBIT 10.4 Page 11
<PAGE> 12
at a discount to present value factor of 7% per annum. Notwithstanding
anything to the contrary herein, the downward adjustment in the amount per
share payable by LinPac to each Shareholder shall not exceed an amount per
share calculated as follows: $4.25 per share, and if the Change in Control
transaction shall result in a payment to LinPac or Parent of more than $10.50
per share of the Company's Common Stock, said $4.25 per share shall be reduced
by any difference between $10.50 per share and the per share amount actually
realized by LinPac or Parent as a result of the Change in Control transaction.
2.4. Reorganizations and Changes in Capitalization. If there
shall be any stock split, reverse stock split, merger, or similar
reorganization, recapitalization or other transaction, affecting generally the
capital stock of the Company, or any extraordinary dividend or stock dividend
paid on or with respect to such stock (other than ordinary and customary cash
dividends), appropriate adjustments shall be made hereunder with respect to the
Exercise Price and the proxies granted herein so that the aggregate relative
rights and obligations of the parties hereto shall not be affected by any such
action.
SECTION 3. OPTION CLOSING
3.1. Closing. The transfer of stock upon exercise of the
Option (the "Closing") shall occur at the offices of McDermott, Will & Emery,
227 West Monroe Street, Chicago, Illinois on the later of (i) the third
business day following the date of the Option Notice or (ii) the expiration or
termination of the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvement Act of 1976, as amended (the "HSR Act"), if required.
3.2. Deliveries by LinPac. At the Closing, LinPac shall
deliver the following:
(a) a wire transfer to each applicable Shareholder's
designated account or a certified or bank cashier's check to the
applicable Shareholder in the amount of the aggregate Exercise Price
for such Shareholder's Stock (the "LinPac Payments"); and
(b) such other instruments or documents as may be necessary
or appropriate to carry out the transactions contemplated hereby.
3.3. Deliveries by Shareholders. At the Closing, each
Shareholder shall deliver or cause to be delivered the following:
(a) certificates, with fully executed stock powers and
signature guarantees, evidencing the Stock elected to be purchased by
LinPac and all other documentation necessary or appropriate to effect
the transfer of
EXHIBIT 10.4 Page 12
<PAGE> 13
ownership thereof to LinPac;
(b) an assignment of any option or rights to acquire capital
stock of the Company in form acceptable to LinPac, together with any
necessary consents for such assignment;
(c) an assignment of all claims the Shareholder may have
against the Company other than claims for normal compensation and
fringe benefits, rights under this Agreement, rights under the Merger
Agreement if executed and delivered by all parties thereto, and rights
under agreements described in Schedule 4.5 attached hereto; and
(d) such other endorsements, instruments or documents as may
be necessary or appropriate to carry out the transactions contemplated
hereby.
3.4. Escrow. Within 10 days after execution of this
Agreement (20 days as to items requiring the signature of William H. Roper or
Ruth Roper), the Shareholders shall deposit the items listed in Section 3.3(a),
(b) and (c) (the "Escrowed Items") into escrow, pursuant to an Escrow Agreement
in form of Exhibit B. The escrow agent shall be agreed upon by the parties and
shall be authorized to deliver the Escrowed Items to LinPac upon the delivery
of the LinPac Payments.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Except to the extent superseded by the Merger Agreement if
authorized, executed and delivered by all proposed parties thereto, the
Shareholders hereby jointly and severally represent and warrant to Parent and
LinPac as of the date hereof, as of the Closing and as of the Effective Time,
as follows:
4.1. Authority. Each Shareholder has all requisite power and
authority, without the consent of any other person, to execute and deliver this
Agreement and the agreements and instruments to be delivered at the
consummation of transactions contemplated after approval of the Merger by the
requisite vote of Company stockholders and immediately prior to the Effective
Time, and to carry out the transactions contemplated hereby and thereby. All
acts or proceedings required to be taken by each Shareholder to authorize the
execution and delivery of this Agreement by the Shareholders and to authorize
performance by the Shareholders in accordance with their obligations under this
Agreement have been duly and properly taken.
4.2 Validity. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and binding obligations of each
Shareholder, enforceable in accordance with its terms, except as enforcement
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally and by general equitable
principles. The execution and delivery of this Agreement and the consummation
of
EXHIBIT 10.4 Page 13
<PAGE> 14
the transactions contemplated hereby will not result in the creation of any
lien, charge or encumbrance of any kind or the acceleration of any indebtedness
or other obligation of any Shareholder or the Company and are not prohibited
by, do not violate or conflict with any provision of, and do not constitute a
default under or a breach of (a) the charter or by-laws of the Company, (b) any
note, bond, indenture, contract, agreement, permit, license or other instrument
to which any Shareholder or the Company is a party or by which any Shareholder
or the Company or any of their assets is bound (except that consummation of the
Merger and transactions contemplated therein require the consent or waiver of
Sanwa Bank California under a Creidt Facility Agreement as amended), (c) any
order, writ, injunction, decree or judgment of any court or governmental
agency, or (d) any law, rule or regulation applicable to the Company. No
approval, authorization, registration, consent, order or other action of or
filing with any person, including any court, administrative agency or other
government authority, is required for the execution and delivery by the
Shareholders of this Agreement or the performance by the Shareholders of their
obligations hereunder.
4.3. Due Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full power and authority and all requisite rights, licenses,
permits and franchises to own, lease and operate its assets and to carry out
the business in which it is engaged. The Company is duly licensed and
qualified to do business as a foreign corporation and is in good standing in
all jurisdictions in which the nature of its business and the ownership,
leasing or operation of its assets or the conduct of its business requires such
qualification except where the effect of the failure to so qualify would not be
material to the operations of the Company taken as a whole.
4.4. Capitalization.
(a) The authorized capital stock of the Company consists of
10,000,000 shares of Common Stock and 3,000,000 shares of Preferred Stock. As
of September 23, 1994, there are 4,299,184 shares of Common Stock issued and
outstanding and no shares of the Company's Preferred Stock have been issued.
All of the issued and outstanding shares of Common Stock are duly authorized,
validly issued, fully paid and nonassessable, were not issued in violation of
any preemptive, subscription or other right of any person to acquire securities
of the Company and constitute in the aggregate all of the issued and
outstanding capital stock of all classes of the Company. Except as set forth
on Schedule 4.4, there is no outstanding subscription, option, convertible or
exchangeable security, preemptive right, warrant, call, agreement, arrangement
or other right (other than this Agreement) relating to the Company's capital
stock or other obligation or commitment of any Shareholder or the Company to
issue or transfer any shares of capital stock. To the best knowledge of the
Shareholders, there are no voting trusts or other agreements, arrangements or
understandings applicable to
EXHIBIT 10.4 Page 14
<PAGE> 15
the exercise of voting or any other rights with respect to the Company's
capital stock.
(b) Except as to shares in the process of being transferred
from the Roper Family Trust to other Shareholders as described in the Preamble
to this Agreement, each Shareholder (and his or her spouse, if applicable) is
the sole record and beneficial owner of the number of shares of Common Stock
set opposite the Shareholder's name in the Preamble to this Agreement and,
except in the event of the death of any such Shareholder, will be the sole
record and beneficial owner of any capital stock of the Company acquired after
the date hereof (collectively the "Stock"), has good, marketable and
indefeasible title thereto and the absolute right to sell, assign, transfer and
deliver the same, free and clear of all claims, security interests, liens,
pledges, charges, escrows, options, proxies, rights of first refusal,
preemptive rights, mortgages, hypothecations, prior assignments, title
retention agreements, indentures, security agreements or any other limitation,
encumbrance or restriction of any kind (collectively, the "Adverse Claims")
except for the proxies in favor of LinPac granted under this Agreement.
4.5. Transactions with Affiliates. Since December 31, 1993, there
has not been any dividend declared or paid or other distribution of assets by
the Company to its stockholders or Affiliates (as hereinafter defined) except
for intercompany transactions among the Company and its wholly-owned
subsidiaries. Except as set forth in Schedule 4.5, neither the Shareholders
nor any Affiliate, directly or indirectly:
(a) owns any debt, equity or other interest or investment in
any corporation, association or other entity which is a competitor,
lessor, lessee, customer or supplier of the Company;
(b) has any cause of action or other claim whatsoever against
or owes any amount to, or is owed any amount by, the Company, except
for reimbursement of business expenses incurred in the ordinary course
of employment and payroll and other rights as an employee;
(c) has any interest in or owns any property or right used in
the conduct of the Company's business; or
(d) is a party to any contract, lease, agreement,
arrangement or commitment entered into with the Company or in
connection with the Company's business except as contemplated by this
Agreement.
For purposes of this Agreement the term "Affiliate" means any member of the
immediate family of any individual Shareholder, or any
EXHIBIT 10.4 Page 15
<PAGE> 16
corporation, partnership, trust or other entity in which any of the foregoing
individuals is a director, officer, partner or trustee or has an equity
interest in excess of 5%. The term Affiliate shall also include any entity
which controls, or is controlled by, or is under common control with, any of
the individuals or entities described in the preceding sentence.
4.6. Financial Statements; Public Reports.
(a) The audited financial statements of the Company for
the four years ended December 31, 1990, 1991, 1992 and 1993 set forth in Public
Reports (as defined below) consisting of the Company's Annual Reports on Form
10-K for those years (the "Audited Financial Statements) and the unaudited
financial statements of the Company for the six months ended June 30, 1994 set
forth in the Public Report consisting of the Company's Quarterly Report on Form
10-Q for the quarter then ended (the "Unaudited Financial Statements") are, and
will be: (a) accurate, correct and complete in all material respects; (b) in
accordance with the books of account and records of the Company; (c) fair
presentations of the financial condition and results of operations of the
Company as of the dates and for the periods indicated above; and (d) prepared
in accordance with U.S. generally accepted accounting principles ("GAAP)
applied on a consistent basis throughout the periods indicated except for
changes made in response to FASB bulletins as described in footnotes to the
Audited Financial Statements. Except to the extent reflected on the balance
sheet included in the Unaudited Financial Statements, indebtedness incurred in
the ordinary course of business thereafter, $1,400,000 in mortgage indebtedness
incurred in July 1994 as part of a refinancing of real property by Ropak
Southwest Inc., funds borrowed on the Company's bank credit line in September
1994 to repurchase certain outstanding shares of preferred stock in Ropak
Canada Inc., litigation pending or threatened in the ordinary course of
business which is not material to the operations of the Company taken as a
whole, and continuing obligations under agreements to which the Company and its
subsidiaries are parties, the Company does not have and will not have as of the
Closing Date, any indebtedness, duty, responsibility, liability or obligation
of any nature, whether absolute, accrued, contingent or otherwise.
(b) The Company has made all filings with the Securities
and Exchange Act Commission (the "SEC") that it has been required to make under
the Securities Act of 1993 and the Securities Exchange Act of 1934
(collectively the "Public Reports"). To the knowledge of the Shareholders,
each of the Public Reports at the time the same was filed with the SEC has
complied with the Securities Act of 1933 and the Securities Exchange Act of
1934 in all material respects. To the knowledge of the Shareholders, none of
the Public Reports, as of their respective dates, contained, and the final
proxy statement filed pursuant to the Merger will not contain, any untrue
statement of a material fact or omit to state a material fact necessary in
EXHIBIT 10.4 Page 16
<PAGE> 17
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading. The Company has delivered to LinPac or
its counsel a correct and complete copy of each Public Report (together with
all material exhibits and schedules thereto and as amended to date) for the
year ended December 31, 1993 and the interim period through the date hereof,
and of each Public Report (without exhibits) for the two years ended December
31, 1992.
4.7. Books and Records. The books of account, stock records
and other records (financial and otherwise) of the Company are in all material
respects complete and correct and as maintained in accordance with good
business practices.
4.8. Interim Change. Since December 31, 1993, there has not
been (a) any material adverse change in the financial condition, assets,
liabilities, personnel or business of the Company or in its relationships with
suppliers, customers, distributors, lenders, lessors or others; (b) any damage,
destruction or loss, whether or not covered by insurance, materially adversely
affecting the Company; (c) any event or condition or series of events or
conditions which could, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the Company; or (d) any
development which could or will have a material adverse effect on the Company
or its business. Since December 31, 1993, the Company has not incurred or
become subject, or agreed to incur or become subject to, any liability or
obligation, contingent or otherwise, except current liabilities and contractual
obligations in the ordinary course of business in amounts and on terms
consistent with past practices, liabilities and contractual obligations
described in Section 4.6(a) above, and liabilities and contractual obligations
under a Reimbursement Agreement with Bank One, Lexington and related documents
as to an Industrial Revenue Bond financing by the County of Scott, Kentucky in
the principal amount of up to $5,500,000. Since December 31, 1993, the Company
has operated in the ordinary course of business, consistent with past
practices.
4.9. Brokers. No Shareholder has retained any broker, finder
or agent or incurred any liability or obligation for any brokerage fees,
commissions or finders' fees with respect to this Agreement or the transactions
contemplated hereby.
4.10. Disclosure. The representations and warranties of the
Shareholders contained in this Agreement and the Schedules, certificates
delivered pursuant to this Agreement, or after the date hereof in connection
with the transactions contemplated herein, are each accurate, correct and
complete in all material respects, and do not contain any untrue statement of a
material fact. Each list and description contained on any Schedule delivered
pursuant to this Agreement is accurate and complete.
EXHIBIT 10.4 Page 17
<PAGE> 18
SECTION 5. REPRESENTATIONS AND WARRANTIES OF LINPAC AND THE PARENT
Except to the extent superseded by the Merger Agreement if
authorized, executed and delivered by all proposed parties thereto, LinPac and
the Parent hereby jointly and severally represent and warrant to the
Shareholders as of the date hereof, as of the Closing, and as of the Effective
Time as follows:
5.1. Authorization. LinPac and Parent each have all
requisite power and authority, without the consent of any other person, to
execute and deliver this Agreement and the agreements to be delivered at the
consummation of transactions contemplated after approval of the Merger by the
requisite vote of Company stockholders and immediately prior to the Effective
Time, and to carry out the transactions contemplated hereby and thereby. All
corporate and other acts or proceedings required to be taken by LinPac and
Parent to authorize the execution, delivery and performance of this Agreement
and all transactions contemplated hereby have been duly and properly taken.
Parent and LinPac have either cash resources or financing commitments necessary
to fund the cash payments contemplated by the Merger at the Effective Time, and
upon request of the Company's Board or the Shareholders, will provide written
evidence of such cash resources and/or financing commitments.
5.2. Validity. This Agreement has been, and the documents to
be delivered at Closing by LinPac will be, duly executed and delivered and
constitute lawful, valid and legally binding obligations of LinPac and Parent,
enforceable in accordance with their respective terms except as enforcement may
be limited by applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting, creditors' rights generally and by general equitable
principles. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not result in the creation of any
lien, charge or encumbrance of any kind or the acceleration of any indebtedness
or other obligation of LinPac or Parent and are not prohibited by, do not
violate or conflict with any provision of, and do not constitute a default
under or a breach of (a) the charter or By-laws of LinPac or Parent, (b) any
note, bond, indenture, contract, agreement, permit license or other instrument
to which LinPac or Parent is a party or by which LinPac or Parent or any of its
assets is bound, (c) any order, writ, injunction, decree or judgment of any
court or governmental agency, or (d) any law, rule or regulation applicable to
LinPac or Parent.
5.3. Due Organization. LinPac is a corporation organized and
validly existing under the laws of the State of Delaware, and has full power
and authority to carry on the business in which it is engaged. Parent is a
private company limited by shares organized and validly existing under the laws
of the United Kingdom, and has full power and authority to carry on the
business in which it is
EXHIBIT 10.4 Page 18
<PAGE> 19
engaged.
SECTION 6. COVENANTS OF THE SHAREHOLDERS
Each Shareholder hereby agrees to keep, perform and fully
discharge the following covenants and agreements except to the except
superseded by the Merger Agreement if authorized, executed and delivered by all
proposed parties thereto:
6.1. Interim Conduct of Business. From the date hereof
through the term of this Agreement, each Shareholder shall use his best efforts
to cause the Company to preserve, protect and maintain its business, and to
operate its business consistent with prior practice and in the ordinary course.
Without limiting the generality of the foregoing, from the date hereof through
the term of this Agreement, except for transactions expressly approved in
writing by LinPac, the Shareholders shall use their best efforts to cause the
Company to:
(a) maintain its properties and assets in good repair, order and
condition, reasonable wear and tear exempted;
(b) maintain and keep in full force and effect all insurance on
assets and property or for the benefit of employees, all
liability and other casualty insurance and all bonds on
personnel, presently carried;
(c) preserve intact the organization and reputation of the Company
and keep available the services of the present executives,
employees and agents of the Company and preserve the good will
of suppliers, customers and others having business
relationships with the Company;
(d) maintain the Company's books, accounts and records in the
usual, regular and ordinary manner on a basis consistent with
prior years;
(e) not enter into, amend or terminate any employment, bonus,
severance or retirement contract or arrangement except
consistent with past practice, nor increase any salary or
other form of compensation payable or to become payable to any
Shareholder;
(f) not extend credit in the performance of services, sales of
products, collection of receivables or otherwise, other than
in the ordinary and regular course of business;
(g) not declare, set aside or pay any dividend or make any other
distribution with respect to the capital stock of the Company
except for the repurchase or redemption of
EXHIBIT 10.4 Page 19
<PAGE> 20
preferred stock previously issued by Ropak Canada Inc.;
(h) not merge or consolidate with or agree to merge or consolidate
with, nor purchase or agree to purchase all or substantially
all of the assets of, nor otherwise acquire, any corporation,
partnership, or other business organization or division
thereof;
(i) not sell, lease or otherwise dispose of or agree to sell,
lease or otherwise dispose of, any of the Company's assets,
properties, rights or claims, except in the ordinary course of
business;
(j) not authorize for issuance, issue, sell or deliver any,
additional shares of the Company's capital stock of any class
(except for the issuance and delivery of Common Stock upon the
exercise of outstanding options or warrants or the exercise of
rights of conversion or exchange in accordance with agreements
in existence prior to the date hereof) or any securities or
obligations convertible into shares of the Company's capital
stock of any class or issue or grant any option, warrant or
other right to purchase any shares of the Company's capital
stock of any class; or
(k) not incur or become subject to, nor agree to incur or become
subject to, any debt, obligation or liability, contingent or
otherwise, except current liabilities, borrowings under the
Company's bank credit, obligations incurred in connection with
construction of the Company's new plant facility in
Georgetown, Kentucky and equipment and tooling required for
the plant, capital asset acquisitions consistent with amounts
in prior periods and contractual obligations incurred in the
ordinary course of business.
Furthermore, the Shareholders shall not take any action to
seek, encourage, solicit or support any inquiry, proposal, expression of
interest or offer from any other person or entity with respect to an
acquisition, combination or similar transaction involving the Company or
substantially all of the assets or securities related thereto, and the
Shareholders will promptly inform LinPac of the existence of any such inquiry,
proposal, expression of interest or offer. Nothing herein shall be deemed to
prohibit the Shareholders, to the extent required to fulfill their fiduciary
duties as executive officers and directors of the Company, from furnishing
information to third parties as to the Company and its operations to the same
degree that any such information has been, or concurrently is being furnished
to LinPac.
The provisions of this Section 6.1 shall expire in any
EXHIBIT 10.4 Page 20
<PAGE> 21
event on the first anniversary of the date of this Agreement if the Merger
shall not have been consummated by such anniversary date or upon the
consummation of a Change in Control event.
6.2. Grant of Proxy. Each Shareholder hereby revokes any and
all proxies heretofore granted with respect to the Shareholder's Stock and,
until February 28, 1995 (or such later date as is necessary to effect the
closing on any proper exercise of the Sale Option or the Purchase Option),
hereby appoints, in accordance with Section 212 of the Delaware General
Corporation Law, the Chairman and Chief Executive Officer, the President or any
Vice President (from time to time) of LinPac, and each of them, as
attorney-in-fact and proxy of such Shareholder to attend any and all meetings
of the stockholders of the Company and to vote the Shareholder's Stock, and to
represent and otherwise to act for such Shareholder in the same manner and with
the same effect as if such Shareholder were personally present and to act by
consent in the same manner and with the same effect as if such Shareholder were
executing such consent, with respect to any matter, subject to the following
provisions of this Section 6.2. Except to vote or consent in favor of the
Merger, against any transaction that would interfere with or impair the
benefits of the Merger, or on matters relating or incidental thereto, LinPac
will not use proxies herein granted, (i) to vote for the election of any person
as a director of the Company not nominated by the Company's current directors,
or to seek the removal of any of the Company's current directors, (ii) to call
a special meeting of the Company's shareholders (other than a shareholders'
meeting called for the purpose of seeking approval of the Merger), or (iii) to
seek to take any action by means of a written consent of the Company's
shareholders, in each case without the prior written approval of the
Shareholders. Each Shareholder agrees that, so long as this Agreement remains
in effect, such Shareholder will not execute or deliver to others proxy forms
relating to meetings of shareholders of the Company and will promptly provide
LinPac with copies of any shareholders' communications received by any
Shareholder and will not take any other action inconsistent with the proxy.
The foregoing appointment shall (a) be irrevocable for the term of this
Agreement and (b) be deemed coupled with an interest in that LinPac has agreed
to pay all costs and expenses incurred by LinPac in proposing the Merger and in
seeking to implement and consummate the same, all without seeking reimbursement
of such costs and expenses from the Company or from the Shareholders if the
Merger is not successfully consummated for any reason (other than intentional
material misrepresentations on the part of the Company or the Shareholders, as
the case may be) and will further agree to reimburse the Company and
Shareholders for all reasonable costs and expenses incurred by them in seeking
to implement and consummate the Merger if LinPac or Parent shall default in
performance of their obligations hereunder or as provided by the Merger
Agreement.
6.3. Stock. During the term of this Agreement, each
EXHIBIT 10.4 Page 21
<PAGE> 22
Shareholder hereby covenants and agrees that such Shareholder will not sell,
transfer, assign, pledge, hypothecate or otherwise dispose of any of the Stock
or grant any rights with respect to the Stock, or enter into any agreement with
respect thereto, except pursuant to the terms hereof.
6.4. General. The Shareholders agree to propose,
advocate, support and vote for the Merger. Each Shareholder hereby covenants
and agrees to take any and all actions and execute any and all documents in its
capacity as a stockholder of the Company as may be required to effect the
Purchase Option upon exercise by LinPac and to effect the Merger.
6.5. HSR Act. Upon execution hereof, the Shareholders
will timely and promptly make or cause to be made all filings required of them
and the Company under the Hart Scott Rodino Act ("HSR Act") and use their best
efforts to cause the satisfaction or termination of the waiting period under
the HSR Act. The Shareholders will furnish to LinPac such necessary
information and reasonable assistance as may be requested in connection with
the preparation of necessary filings or submissions to any governmental agency,
including, without limitation, any filings necessary under the provisions of
the HSR Act.
SECTION 7. INVESTIGATION; SURVIVAL OF REPRESENTATIONS; TERM
7.1. Investigation. Upon the execution of this Agreement by
all parties hereto, Shareholders shall use their best efforts to permit LinPac
and its duly authorized representatives to be provided by the Company with full
access to the properties, books, records and business operations of the
Company, which shall include without limitation copies of all contracts and
agreements to which the Company and its subsidiaries are a party and other
records and information which LinPac reasonably deems of significance in an
investigation of the business, assets, rights, liabilities, obligations and
prospects of the Company. This right of access shall include physical
inspection of properties and assets as well as the review of all pertinent
books and records. The Shareholders will use their best efforts to cause the
Company's officers and employees to cooperate fully in said examination and to
cause the Company's public accountants and outside legal counsel to cooperate
fully and to make a full and complete disclosure to LinPac and its
representatives of all material facts regarding the financial records, assets,
obligations, contracts and business operations of the Company.
7.2. Reliance. All representations, warranties,
covenants and agreements contained in this Agreement or in any document,
agreement or instrument delivered pursuant hereto or thereto shall be deemed to
be material and to have been relied upon
EXHIBIT 10.4 Page 22
<PAGE> 23
by the parties hereto, and the accuracy thereof shall be a condition precedent
to the obligation of the other parties hereto to consummate the Merger
contemplated by this Agreement.
7.3. Survival. LinPac and Parent acknowledge that all
representations and warranties by the Shareholders in this Agreement and by the
Company and the Shareholders in the Merger Agreement will not survive the
closing of the Merger Agreement and shall expire at the Effective Time of the
Merger of LinPac with the Company, except for: (i) representations and
warranties of the Company and Shareholders in agreements contemplated by
Section 1.4 hereof; (ii) representations and warranties of the Shareholders as
to the number of shares of the Company's capital stock issued and outstanding
and reserved for issuance pursuant to options, warrants, or other securities
exercisable or convertible into, or any calls or commitments or agreements of
any kind relating to, the Company's capital stock; and (iii) representations
and warranties of the Shareholders as to their ownership, free and clear of all
encumbrances, of shares of the Company's Common Stock.
SECTION 8. GENERAL PROVISIONS
8.1. Amendments and Waiver. No amendment, waiver or consent
with respect to any provision of this Agreement shall in any event be
effective, unless the same shall be in writing and signed by the parties
hereto, and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
8.2. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five (5) days after
deposit in the mail if sent by registered or certified mail; (c) one (1) day
after having been sent by commercial overnight courier as evidenced by the
written verification of receipt; or (d) on the date of confirmation if
telecopied, as set forth below:
(a) If to LinPac or Parent: c/o LinPac Mouldings Limited
Deykin Avenue
Witton
Birmingham B6 7HY
ENGLAND
Attention: David Williams
Telecopy : 011-44-021-327-6757
EXHIBIT 10.4 Page 23
<PAGE> 24
With copies to: McDermott, Will & Emery
227 West Monroe Street
Chicago, IL 60606-5096
Attention: Stanley H. Meadows, P.C.
Telecopy: (312) 984-3669
(b) If to the Shareholders: William H. Roper
12 Rue Biarittz
Newport Beach, CA 92660
Telecopy: (714) 644-8621
Robert E. Roper
3802 Holden Circle
Los Alamitos, CA 90720
C. Richard Roper
1383 N. Mustang
Orange, California 92667
With a copy to: Law Office of William M. Curtis
25241 Buckskin Drive
Laguna Hills, CA, 92653
Telecopy: (714) 831-4141
Any party may change its address for receiving notice given by written notice
given to the others named above.
8.3. Expenses. Except as otherwise expressly provided
herein, each party to this Agreement shall pay its own costs and expenses in
connection with the transactions contemplated hereby. LinPac and Parent
jointly and severally agree to reimburse the Company and Shareholders for all
reasonable out of pocket costs and expenses incurred by them in seeking to
implement and consummate the Merger if LinPac or Parent shall default in
performance of their obligations hereunder or as provided by the Merger
Agreement or any other written agreement or instrument given pursuant hereto or
thereto.
8.4. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts each of which shall be deemed an
original, but all of which together constitute one and the same instrument.
8.5. Successors and Assigns. This Agreement shall bind and
inure to the benefit of the parties named herein and their respective
successors and assigns. No party to this Agreement shall be entitled to assign
its rights and duties under this Agreement without the consent of the other
parties, provided that Parent shall be entitled to assign its rights and duties
under this Agreement to any corporate affiliate of Parent without the consent
of the Shareholders.
8.6. Entire Transaction. This Agreement and the documents
referred to herein contain the entire understanding among
EXHIBIT 10.4 Page 24
<PAGE> 25
the parties with respect to the actions contemplated hereby and supersedes all
other agreements, understandings and undertakings among the parties on the
subject matter hereof.
8.7. Other Rules of Construction. References in this
Agreement to sections, schedules and exhibits are to sections of, and schedules
and exhibits to, this Agreement unless otherwise indicated. Words in the
singular include the plural and in the plural include the similar. The word
"or" is not exclusive. The word "including" shall mean including, without
limitation. The section and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.8. Announcements. No announcement of this Agreement or any
transaction contemplated hereby shall be made by any party prior to the Closing
without the written approval of the other party hereto (which approval shall
not be unreasonably withheld and may be provided by counsel to such party on
its behalf).
* * *
EXHIBIT 10.4 Page 25
<PAGE> 26
IN WITNESS WHEREOF, each of the parties hereto has executed or
caused this Agreement to be executed all as of the date first written above.
LINPAC MOULDINGS, INC.
By: /S/ DAVID A. WILLIAMS
Its: Managing Director
/S/ WILLIAM H. ROPER
William H. Roper
/S/ RUTH ROPER
Ruth Roper
/S/ C. RICHARD ROPER
C. Richard Roper
/S/ MARGO ROPER
Margo Roper
/S/ ROBERT E. ROPE
Robert E. Roper
/S/ NANCY ROPER
Nancy Roper
LINPAC MOULDINGS, LTD.
By: /S/ DAVID A. WILLIAMS
Its: President
EXHIBIT 10.4 26-A
<PAGE> 27
/S/ C. RICHARD ROPER
C. Richard Roper, as custodian
under the Uniform Transfers to
Minors Act
ROPER FAMILY TRUST
By: /S/ WILLIAM H. ROPER
William H. Roper, trustee
ROPER FAMILY TRUST F/B/O WILLIAM H.
ROPER DATED 4/12/94
By: /S/ WILLIAM H. ROPER
William H. Roper, trustee
ROPER FAMILY TRUST F/B/O ROBERT E.
ROPER AND/OR CHILDREN UTA 9/6/77
By: /S/ ROBERT E. ROPER
Robert E. Roper, trustee
ROPER FAMILY TRUST F/B/O C. RICHARD
ROPER AND/OR CHILDREN UTA 9/6/77
By: /S/ C. RICHARD ROPER
C. Richard Roper, trustee
EXHIBIT 10.4 27-A
<PAGE> 1
EXHIBIT 10.5
<PAGE> 2
[WERTHEIM SCHRODER & CO. INCORPORATED LETTERHEAD]
November 8, 1994
Special Committee
of the Board of Directors
Ropak Corporation
660 South State College Blvd.
Fullerton, CA 92631
Attention: Mr. Terry L. Nagelvoort
Gentlemen:
We understand that Linpac Mouldings Ltd. ("Linpac") has proposed to
acquire Ropak Corporation (the "Company") via a transaction in which the
Company's common equity will cease to be publicly traded (the "Transaction").
This letter agreement (the "Agreement") confirms our understanding that
Wertheim Schroder & Co. Incorporated ("Wertheim Schroder") has been retained by
the Special Committee of the Board of Directors of the Company (the "Special
Committee") as its exclusive financial advisor and to render its oral advice
followed by a written opinion (the "Opinion"), as investment bankers, to the
Special Committee as to the fairness to the Company's shareholders (other than
Linpac and members of the Roper family), from a financial point of view of the
consideration to be received in the Transaction.
In rendering its services hereunder, Wertheim Schroder agrees to
conduct such investigations and reviews of the Company's business and
operations as Wertheim Schroder shall deem appropriate and feasible. The
Company shall cause its directors, officers, employees and agents, if any, to
cooperate with us and supply us with written and other information, to the
extent reasonably needed and requested by us, to enable us to perform our
services hereunder, and shall use its best efforts to provide reasonable access
to its independent accountants, counsel and other professionals, if any. The
Company represents and warrants to us that any information heretofore or
hereafter furnished to us is and will be, to the best of the Company's
knowledge, true and correct in all material respects and does not and will
not omit any material fact required to make the information given to us not
misleading. The Company agrees to notify Wertheim Schroder promptly of any
material change in the business or financial condition of the Company during
the course of Wertheim Schroder's engagement that may require an amendment or
supplement to any of the information provided to Wertheim Schroder so that such
information will not be misleading in any material respect or omit to state
any material fact that is required to be stated or that is necessary in order
to make any such information not misleading given the occurrence of any such
change.
Wertheim Schroder will not assume any responsibility to independently
verify the accuracy or completeness of information furnished by or on behalf
of the Company, but will rely on its accuracy and completeness in all material
respects and will not assume any responsibility to perform (or be required to
retain any persons to perform) any independent valuations or appraisals of the
Company's assets.
<PAGE> 3
[WERTHEIM SCHRODER & CO. INCORPORATED LOGO]
Special Committee
of the Board of Directors
Ropak Corporation
November 8, 1994
Page 2
Based upon such reviews, Wertheim Schroder shall render the Opinion in
a form customary to similar transactions and may state, in substance, among
other things, that the Opinion is given in reliance on the accuracy and
completeness of all information furnished to Wertheim Schroder by the Company.
It is understood that (i) the Opinion will be addressed to the Special
Committee and, if requested, to the Company's Board of Directors; (ii) the
Opinion will not constitute a recommendation as to any action the Company, its
Board of Directors and shareholders should take in connection with the
Transaction and (iii) the Company will not furnish the Opinion or any other
material prepared by Wertheim Schroder (including this Agreement) to any other
person or persons or use or refer to the Opinion or this Agreement for any
other purposes other than (A) introduction into evidence and other references
in connection with any litigation relating to the Transaction upon written
notice to Wertheim Schroder and (B) reproduction in full in any document
disseminated with the consent of the Company to its stockholders or filed with
the Securities and Exchange Commission ("SEC") pursuant to rules of the SEC (a
"Disclosure Document") in connection with the Transaction. In the event of
such reproduction of the Opinion in a Disclosure Document or introduction into
evidence in connection with any litigation relating to the Transaction, all
references to the Opinion, to Wertheim Schroder and to its relationship with
the Company and Linpac shall be subject to the approval of Wertheim Schroder
which shall not be unreasonably withheld. Other than as contemplated by this
paragraph, neither the Opinion nor any other opinion or advice (written or
oral) of Wertheim Schroder shall be used, reproduced, disseminated, quoted or
referred to at any time, in any manner or for any purpose, nor shall any public
references be made to Wertheim Schroder, except with its prior written consent,
which shall not be unreasonably withheld.
For Wertheim Schroder's services in connection with the rendering of
its Opinion to the Special Committee, the Special Committee agrees that the
Company shall pay, or cause to be paid, to Wertheim Schroder a fee of $200,000,
payable in cash as follows: (i) $100,000 upon execution of this Agreement and
(ii) $100,000 when Wertheim Schroder is prepared to deliver the Opinion to the
Special Committee, whether or not favorable. In addition, the Special
Committee agrees that the Company shall pay, or cause to be paid, to Wertheim
Schroder a fee of $50,000 for financial advisory services payable in cash at
the closing of or termination of the Transaction. The Company will also
reimburse Wertheim Schroder for its reasonable out-of-pocket expenses,
including reasonable fees and expenses of its legal counsel, if any, incurred
in connection with Wertheim Schroder's engagement hereunder and testimony or
depositions in connection with any proceeding or investigation relating hereto.
Such out-of-pocket expenses, including reasonable fees and expenses of legal
counsel referred to in the previous sentence, will not exceed $50,000 without
the authorization of the Special Committee. Wertheim Schroder agrees to
prepare a summary of the analyses presented to the Special Committee. Such
analyses will not be included in the disclosure document without Wertheim
Schroder's prior written authorization which shall not be
<PAGE> 4
[WERTHEIM SCHRODER & CO. INCORPORATED LOGO]
Special Committee
of the Board of Directors
Ropak Corporation
November 8, 1994
Page 3
unreasonably withheld. Wertheim Schroder will also attend as many meetings of
the Special Committee as the Special Committee shall request before it renders
the Opinion, provided the Special Committee agrees that the Company will
reimburse Wertheim Schroder for any out-of-pocket expenses in excess of an
aggregate of $50,000 which Wertheim Schroder may have to incur to attend such
meetings. The Special Committee agrees that if the Transaction contemplated
hereunder is not completed within six months from the date of the signing of
this Agreement, the continuation of Wertheim Schroder's engagement shall be
subject to such additional compensation as may be agreed upon between the
Special Committee and Wertheim Schroder. In any event, Wertheim Schroder will
be entitled to receive the balance outstanding of its fees under this Agreement
if its engagement is terminated within or upon the expiration of six months of
the date of signing of this Agreement.
If the Company chooses to pursue a business combination prior to June
30, 1995 (by way of merger or sale of all or a portion of its assets or stock)
with an entity other than Linpac, the Company will retain Wertheim Schroder as
its exclusive financial advisor in respect of such transaction, and the Company
will agree to pay or cause to be paid to Wertheim Schroder a fee equal to 1.25%
of the Aggregate Consideration (as described below) upon the successful
completion of such business combination. The fee will be due in cash at the
closing of the business combination and the fees paid to Wertheim Schroder
described in the prior paragraph shall be credited against it.
The Aggregate Consideration shall be deemed to be the total amount
received by the Company and/or its stockholders (including any escrowed funds
ultimately paid and deferred payments) upon consummation of the business
combination. The Aggregate Consideration shall comprise those amounts paid in
cash, stock, notes or other evidence of indebtedness, irrespective of how such
indebtedness is secured. If such Aggregate Consideration may be increased by
contingent payments related to future earnings or operations, such as an
"earnout", then the portion of our fee relating thereto shall be calculated and
paid when and as such contingent payments are made. In the event that the
Aggregate Consideration is paid in whole or in part in securities, then the
value of such securities for purposes of calculating our fee shall be the fair
market value thereof.
As we will be acting on your behalf, it is our practice to receive
indemnification in accordance with the indemnification letter attached hereto,
which is incorporated herein by reference.
This Agreement may not be modified or amended except in writing duly
executed by the parties hereto and shall be governed by and construed in
accordance with the laws of the State of New York (without regard to any rules
or principles of conflicts of law that might look to any jurisdiction outside
the State of New York).
<PAGE> 5
[WERTHEIM SCHRODER & CO. INCORPORATED LOGO]
Special Committee
of the Board of Directors
Ropak Corporation
November 8, 1994
Page 4
This Agreement does not create, and shall not be construed as creating,
rights enforceable by any person or entity not a party hereto, except those
entitled thereto by virtue of the indemnification provisions hereof. The
Company acknowledges and agrees that Wertheim Schroder is not and shall not be
construed as a fiduciary of the Company and shall have no duties or liabilities
to the equity holders or creditors of the Company or any other person by virtue
of this Agreement or the retention of Wertheim Schroder hereunder, all of which
are hereby expressly waived. The Company also agrees that Wertheim Schroder
shall not have any liability to the Company or to any person (including,
without limitation, equity holders and creditors of the Company) claiming
through the Company for or in connection with the engagement of Wertheim
Schroder, this Agreement and the transactions contemplated hereby (including,
without limitation, the Transaction).
The Special Committee represents and warrants that it has the required
authority to enter into this Agreement and that the Company will be bound
hereby and to the enclosed indemnification letter. Please confirm that the
foregoing is in accordance with your understanding by signing and returning to
us the duplicate of this Agreement and the indemnification letter enclosed.
Very truly yours,
WERTHEIM SCHRODER & CO. INCORPORATED
By: /s/ PETER J. HICKS
----------------------
Peter J. Hicks
Agreed to and Accepted:
SPECIAL COMMITTEE OF THE BOARD OF
DIRECTORS OF ROPAK CORPORATION
By: /s/ TERRY L. NAGELVOORT
---------------------------------
Chairman of the Special Committee
of the Board of Directors
Date: 8 November, 1994
-------------------------------
<PAGE> 6
Wertheim Schroder & Co. Incorporated
Equitable Center
787 Seventh Avenue
New York, New York 10019-6016
November 8, 1994
Gentlemen:
In addition to the fees and expenses which the Company has agreed to
pay for the services to be performed pursuant to the letter agreement of even
date herewith (the "Agreement"), the Company agrees: (i) to indemnify and hold
Wertheim Schroder (which term for purposes of this letter includes its
directors, controlling persons (as such term is defined under the Securities
Act of 1933), officers, employees and agents) harmless against and from all
losses, claims, damages or liabilities, joint or several (and all actions,
claims, proceedings and investigations in respect thereof), to which Wertheim
Schroder may become subject in connection with its performance of the services
described in the Agreement under any of the Federal securities laws, under any
other statute, at common law or otherwise; (ii) that Wertheim Schroder will not
be culpable for and will have no liability to the Company for or with respect
to any and all losses, claims, damages or liabilities, joint or several, of the
Company incurred in connection with Wertheim Schroder's performance of the
services described in the Agreement; and (iii) in each case to reimburse
Wertheim Schroder for all reasonable legal and other out-of-pocket expenses
(including the cost of investigation and preparation) as and when incurred by
Wertheim Schroder arising out of or in connection with any action, claim,
proceeding or investigation (whether initiated or conducted by the Company or
any other party) in connection therewith, whether or not resulting in any
liability (and whether or not Wertheim Schroder is a defendant in, or target
of, any such action, claim, proceeding or investigation); provided, however,
that the Company shall not be liable to Wertheim Schroder pursuant to clauses
(i) and (iii) above and the Company's exculpation of Wertheim Schroder pursuant
to clause (ii) above shall not apply in any such case to the extent that any
such loss, claim, damage or liability is found in a final judgment by a court
of competent jurisdiction to have resulted primarily and directly from Wertheim
Schroder's gross negligence or willful misconduct in performing the services
which are the subject of the Agreement. If for any reason the foregoing
indemnification (including reimbursement pursuant to clause (iii) above) or
exculpation is unavailable to Wertheim Schroder or insufficient to hold it
harmless, then the Company shall contribute to the amount paid or payable by
Wertheim Schroder as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Company on the one hand and Wertheim Schroder on the other hand but also
the relative fault of the Company and Wertheim Schroder as well as any relevant
equitable considerations, provided that, in no event, will Wertheim Schroder's
aggregate contribution hereunder exceed the amount of fees actually received by
Wertheim Schroder pursuant to the Agreement. The indemnity, exculpation,
reimbursement and contribution obligations of the Company under this paragraph
shall be in addition to any liability which the Company may otherwise have,
shall survive any termination of the Agreement and shall be binding upon and
extend to the benefit of any successors, assigns, heirs and personal
representatives of the Company and Wertheim Schroder.
If any action, claim, proceeding or investigation is instituted or
threatened against Wertheim Schroder in respect of which indemnity may be
sought against the Company hereunder, Wertheim Schroder shall promptly notify
the Company thereof in writing, but the omission so to notify the Company shall
not relieve the Company from any other obligation or liability that the Company
may have to Wertheim Schroder under this letter or otherwise except to the
extent that the failure to so notify the Company adversely affects the
Company's rights in any such claim, proceeding or investigation. Wertheim
Schroder will have the right to retain counsel of its choice to represent
Wertheim Schroder in connection with any such action, claim, proceeding or
investigation, provided that such counsel shall be reasonably satisfactory to
the Company. The Company will not be liable hereunder for any settlement
thereof by Wertheim Schroder without the Company's written consent, which will
not be unreasonably withheld.
Terms used herein which are defined in the Agreement shall have the
meanings set forth in the Agreement.
Very truly yours,
SPECIAL COMMITTEE OF THE BOARD OF
DIRECTORS OF ROPAK CORPORATION
By: /s/ TERRY L. NAGELVOORT
---------------------------------
Chairman of the Special Committee
of the Board of Directors
Confirmed and Agreed to:
WERTHEIM SCHGRODER & CO. INCORPORATED
By: /s/ PETER J. HICKS
---------------------------------
Date: November 8/1994
-------------------------------
<PAGE> 1
EXHIBIT 10.6
<PAGE> 2
[WERTHEIM SCHRODER & CO. INCORPORATED LETTERHEAD]
December 13, 1994
Special Committee
of the Board of Directors
Ropak Corporation
660 South State College Blvd.
Fullerton, CA 92631
Attention: Mr. Terry L. Nagelvoort
Gentlemen:
This letter agreement (the "Agreement") confirms our understanding that
Wertheim Schroder & Co. Incorporated ("Wertheim Schroder") has been retained by
the Special Committee of the Board of Directors (the "Special Committee") of
Ropak Corporation (the "Company") to represent the Special Committee as its
exclusive financial advisor and in such other capacities as may be agreed with
respect to the sale of the Company by way of merger or sale of all or
substantially all of its assets or all of its stock (the "Transaction"), whether
such Transaction is consummated with Linpac Mouldings Ltd. or any of its
subsidiaries ("Linpac"), or any other party. This Agreement is an amendment to
and modifies the agreement dated November 8, 1994 entered into by Wertheim
Schroder and the Special Committee.
For Wertheim Schroder's services, the Special Committee agrees that the
Company shall reimburse Wertheim Schroder for its reasonable out of pocket
expenses up to a maximum of $50,000 (as indicated in the November 8, 1994
agreement) and shall pay or cause to be paid to Wertheim Schroder (in addition
to the fees payable pursuant to paragraph six of the November 8, 1994
agreement) a fee equal to 5% ("five percent") of the Incremental Consideration
(as described below) upon successful completion of the Transaction. Wertheim
Schroder's fee will be payable in cash at the closing of the Transaction. No
fees previously paid by the Company to Wertheim Schroder prior to the
completion of the Transaction shall be credited against the fee payable to
Wertheim Schroder upon completion of the Transaction except that Wertheim
Schroder will credit $10,000 ("ten thousand dollars") for each $.50 ("fifty
cents") increment over a $10.50 per share price received by the Company's
shareholders against the $50,000 ("fifty thousand dollars") financial advisory
fee payable to Wertheim Schroder pursuant to the November 8, 1994 agreement at
the closing or termination of the Transaction and will credit, for any portion
of any such increment, the same pro rata portion of such $10,000. Such credit
will not exceed a maximum of $50,000 ("fifty thousand dollars").
The Incremental Consideration shall be equal to the difference between
the Final Consideration (as described below) and the Aggregate Consideration
(as described below).
Regardless of whether the Transaction is consummated with Linpac or any
other party, the Final Consideration shall be deemed to be in the case of the
direct or indirect sale, including a merger, or all of the stock of the
Company, an amount equal to the consideration, including cash, stock, notes or
other evidence of indebtedness, irrespective of how such indebtedness is
secured, paid per share multiplied by the
<PAGE> 3
[WERTHEIM SCHRODER & CO. INCORPORATED LETTERHEAD]
Special Committee
of the Board of Directors
Ropak Corporation
December 13, 1994
Page 2
number of total shares outstanding less the total exercise price or all options
and warrants. In determining the Final Consideration in the case of the sale of
all of the stock of the Company, all options and warrants will be assumed to
have been exercised, and the underlying shares will be included in the
calculation of total shares outstanding. The preferred stock issued by Ropak
Canada and purchased by Linpac will be assumed to have been converted into
577,778 shares of common stock of the Company, and these shares will also be
included in the number of total shares outstanding for the purpose of
calculating the Final Consideration. Shares issued pursuant to the enactment of
anti-takeover provisions or as an inducement to a third party, such as, but not
limited to, a rights plan, will not be included in the calculation of total
shares outstanding.
In the case of the sale of all or substantially all of the assets of
the Company, the Final Consideration shall comprise those amounts received by
the Company in exchange for such assets and paid in cash, stock, notes or other
evidence of indebtedness, irrespective of how such indebtedness is secured. If
such Final Consideration may be increased by contingent payments related to
future earnings or operations, such as an "earnout," then the portion of our
fee relating thereto shall be calculated and paid when and as such contingent
payments are made. In the event that the Final Consideration is paid in whole
or in part in securities, then the value of such securities for purposes of
calculating our fee shall be the fair market value thereof.
The Aggregate Consideration shall be deemed to be equal to the amount
obtained by multiplying a price per share of $10.50 by the number of total
shares outstanding and subtracting the total exercise price of all options and
warrants. In determining the Aggregate Consideration, all options and warrants
will be assumed to have been exercised, and the underlying shares will be
included in the calculation of total shares outstanding. The preferred stock
issued by Ropak Canada and purchased by Linpac will be assumed to have been
converted into 577,778 shares of common stock of the Company, and these shares
will also be included in the number of total shares outstanding for the purpose
of calculating the Aggregate Consideration. Shares issued pursuant to the
enactment of anti-takeover provisions or as an inducement to a third party, such
as, but not limited to, a rights plan, will not be included in the calculation
of total shares outstanding.
If the Company decides to consider a transaction other than the sale of
all or substantially all of its assets or all of its stock, such as, but not
limited to, a sale of less than substantially all of its assets or a porition
of its stock, then Wertheim Schroder will be entitled to a fee equal to a
percentage of the total proceeds to be received by the Company and/or its
stockholders in such transaction, which shall be agreed upon between Wertheim
Schroder and the Special Committee when such a decision will have been made.
The seventh and eighth full paragraphs of the November 8, 1994
agreement are hereby deleted and of no further force or effect.
As we will be acting on your behalf, it is our practice to receive
indemnification in accordance with the indemnification letter attached hereto,
which is incorporated herein by reference.
<PAGE> 4
[WERTHEIM SCHRODER & CO. INCORPORATED LETTERHEAD]
Special Committee
of the Board of Directors
Ropak Corporation
December 13, 1994
Page 3
This Agreement may not be modified or amended except in writing duly
executed by the parties hereto and shall be governed by and construed in
accordance with the laws of the State of New York (without regard to any rules
or principles of conflicts of law that might look to any jurisdiction outside
the State of New York).
This Agreement does not create, and shall not be construed as creating,
rights enforceable by any person or entity not a party hereto, except those
entitled thereto by virtue of the indemnification provisions hereof. The
Special Committee acknowledges and agrees that Wertheim Schroder is not and
shall not be construed as a fiduciary of the Company and shall have no duties
or liabilities to the equity holders or creditors of the Company or any other
person by virtue of this Agreement or the retention of Wertheim Schroder
hereunder, all of which are hereby expressly waived. The Special Committee also
agrees that Wertheim Schroder shall not have any liability to the Company or to
any person (including, without limitation, equity holders and creditors of the
Company) claiming the Company for or in connection with the engagement of
Wertheim Schroder, the Agreement and the transaction contemplated hereby
(including, without limitation, the Transaction).
The Special Committee represents and warrants that it has the required
authority to enter into this Agreement and that the Company will be bound
hereby and to the enclosed indemnification letter. Please confirm that the
foregoing is in accordance with your understanding by signing and returning to
us the duplicate of this Agreement and the indemnification letter enclosed.
Very truly yours,
WERTHEIM SCHRODER & CO. INCORPORATED
By: /s/ PETER J. HICKS
--------------------------------
Peter J. Hicks
Agreed to and Accepted:
SPECIAL COMMITTEE OF THE BOARD OF
DIRECTORS OF ROPAK CORPORATION
By: /s/ TERRY L. NAGELVOORT
---------------------------------
Chairman of the Special Committee
of the Board of Directors
Date: 16 December 1994
-------------------------------
<PAGE> 5
Wertheim Schroder & Co. Incorporated
Equitable Center
787 Seventh Avenue
New York, New York 10019-6016
December 13, 1994
Gentlemen:
In addition to the fees and expenses which the Company has agreed to
pay for the services to be performed pursuant to the letter agreement of even
date herewith (the "Agreement"), the Company agrees: (i) to indemnify and hold
Wertheim Schroder (which term for the purposes of this letter includes its
directors, controlling persons (as such term is defined under the Securities
Act of 1993), officers, employees and agents) harmless against and from all
losses, claims, damages or liabilities, joint or several (and all actions,
claims, proceedings and investigations in respect thereof), to which Wertheim
Schroder may become subject in connection with its performance of the services
described in the Agreement under any of the Agreement under any of the Federal
securities laws, under any other statute, at common law or otherwise; (ii) that
Wertheim Schroder will not be culpable for and will have no liability to the
Company for or with respect to any and all losses, claims, damages or
liabilities, joint or several, of the Company incurred in connection
with Wertheim Schroder's performance of the services described in the
Agreement; and (iii) in each case to reimburse Wertheim Schroder for all
reasonable legal and other out-of-pocket expenses (including the cost of
investigation and preparation) as and when incurred by Wertheim Schroder
arising out of or in connection with any action, claim, proceeding or
investigation (whether initiated or conducted by the Company or any other
party) in connection therewith, whether or not resulting in any liability (and
whether or not Wertheim Schroder is a defendant in, or target of, any such
action, claim, proceeding or investigation); provided, however, that the
Company shall not be liable to Wertheim Schroder pursuant to clauses (i) and
(iii) above and the Company's exculpation of Wertheim Schroder pursuant to
clause (ii) above shall not apply in any such case to the extent that any such
loss, claim, damage or liability is found in a final judgment by a court of
competent jurisdiction to have resulted primarily and directly from Wertheim
Schroder's gross negligence or willful misconduct in performing the services
which are the subject of the Agreement. If for any reason the foregoing
indemnification (including reimbursement pursuant to clause (iii) above) or
exculpation is unavailable to Wertheim Schroder or insufficient to hold it
harmless, then the Company shall contribute to the amount paid or payable by
Wertheim Schroder as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Company on the one hand and Wertheim Schroder on the other hand but
also the relative fault of the Company and Wertheim Schroder as well as any
relevant equitable considerations, provided that, in no event, will Wertheim
Schroder's aggregate contribution hereunder exceed the amount of fees actually
received by Wertheim Schroder pursuant to the Agreement. The indemnity,
exculpation, reimbursement and contribution obligations of the Company under
this paragraph shall be in addition to any liability which the Company may
otherwise have, shall survive any termination of the Agreement and shall be
binding upon and extend to the benefit of any successors, assigns, heirs and
personal representatives of the Company and Wertheim Schroder.
If any action, claim, proceeding or investigation is instituted or
threatened against Wertheim Schroder in respect of which indemnity may be
sought against the Company hereunder, Wertheim Schroder shall promptly notify
the Company thereof in writing, but the omission so to notify the Company shall
not relieve the Company from any other obligation or liability that the Company
may have to Wertheim Schroder under this letter or otherwise except to the
extent that the failure to so notify the Company adversly affects the Company's
rights in any such claim, proceeding or investigation. Wertheim Schroder will
have the right to retain counsel of its choice to represent Wertheim Schroder
in connectin with any such action, claim, proceeding or investigation,
provided that such counsel shall be reasonably satisfactory to the Company. The
Company will not be liable hereunder for any settlement thereof by Wertheim
Schroder without the Company's written consent, which will not be unreasonably
withheld.
Terms used herein which are defined in the Agreement shall have the
meanings set forth in the Agreement.
Very truly yours,
SPECIAL COMMITTEE OF THE BOARD OF
DIRECTORS OF ROPAK CORPORATION
By: /s/ TERRY L. NAGELVOORT
---------------------------------
Chairman of the Special Committee
of the Board of Directors
Confirmed an Agreed to:
WERTHEIM SCHRODER & CO. INCORPORATED
By: /s/ PETER J. HICKS
----------------------------------
<PAGE> 1
CONFIDENTIAL PRESENTATION TO
THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF
ROPAK CORPORATION
[LOGO OF WERTHEIM SCHRODER & CO.]
WERTHEIM SCHRODER & CO.
INCORPORATED
November 29, 1994
EXHIBIT 10.7
<PAGE> 2
CONFIDENTIAL PRESENTATION TO
THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF
ROPAK CORPORATION
[LOGO OF WERTHEIM SCHRODER & CO.]
WERTHEIM SCHRODER & CO.
INCORPORATED
November 29, 1994
<PAGE> 3
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Scope of the Assignment . . . . . . . . . . . . . . . . . . . . . . 1
Due Diligence Procedures . . . . . . . . . . . . . . . . . . . . . 2
Historical Overview . . . . . . . . . . . . . . . . . . . . . . . . 4
Recent Highlights . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ownership Information . . . . . . . . . . . . . . . . . . . . . . . 9
Contacts Since Announcement of Wertheim Schroder Engagement . . . . 11
Transaction Overview . . . . . . . . . . . . . . . . . . . . . . . 13
o Terms of the Linpac Offer
Industry Overview . . . . . . . . . . . . . . . . . . . . . . . . . 15
Business Description . . . . . . . . . . . . . . . . . . . . . . . 18
o Product Lines
o Joint Ventures and Investment
Strategic Highlights . . . . . . . . . . . . . . . . . . . . . . . 25
New Product Opportunities . . . . . . . . . . . . . . . . . . . . . 28
Major Contributors to Future Growth . . . . . . . . . . . . . . . . 29
</TABLE>
------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 1
<PAGE> 4
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
TABLE OF CONTENTS (CONTINUED)
<TABLE>
<S> <C>
Financial Review . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Three-Year Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Stock Price Performance . . . . . . . . . . . . . . . . . . . . . . 40
Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Valuation Methodology . . . . . . . . . . . . . . . . . . . . . . . 46
Investment Banking Conclusion . . . . . . . . . . . . . . . . . . . 63
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT
<S> <C>
Historical and Projected Financial Information . . . . . . . . . . . 1
Analysis of Comparable Publicly Traded Companies . . . . . . . . . . 2
Premiums in Merger and Acquisition Transactions . . . . . . . . . . 3
Discounted Cash Flow Analysis . . . . . . . . . . . . . . . . . . . 4
Leveraged Buyout Analysis . . . . . . . . . . . . . . . . . . . . . 5
Analysis of Comparable Merger & Acquisition Transactions . . . . . . 6
Comparable Companies S&P Tear Sheets . . . . . . . . . . . . . . . . 7
</TABLE>
------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 2
<PAGE> 5
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
SCOPE OF THE ASSIGNMENT
[_] To evaluate, from a financial point of view, the fairness to Ropak
Corporation's ("Ropak" or the "Company") shareholders, other than Linpac
or the members of the Roper family, of the proposal by Linpac Mouldings
Ltd. ("Linpac") to acquire all the common equity of Ropak Corporation
at a price of $10.50 per share.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 1
<PAGE> 6
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
DUE DILIGENCE PROCEDURES
[_] Reviewed the Company's historical financial information including annual
reports and 10K's for the 1989-1993 fiscal years ended December 31,
quarterly reports for 1993 and the first three quarters of 1994, the
Company's proxy dated May 17, 1994, the October 1994 financial statements
and the budget for the fiscal year 1994.
[_] Discussed with management the Company's operations, customers, markets,
competition, products, and historical and projected financial information.
[_] Reviewed with management the Company's three-year financial projections
dated August 31, 1993 and the Company's revised three-year financial
projections dated November 9, 1994.
[_] Visited the Ropak West, Ropak Central, and Capilano divisions and
discussed their operations with management.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 2
<PAGE> 7
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
DUE DILIGENCE PROCEDURES (CONTINUED)
[_] Interviewed several U.S. and Canadian customers.
[_] Discussed the state of the polyethylene market with several of Ropak's
U.S.-based suppliers.
[_] Reviewed Ropak's accounting practices and copies of the management letters
for the years 1988 through 1993 with the Company's auditors, Deloitte &
Touche.
[_] Wertheim Schroder did not perform a market check.
[_] Wertheim Schroder had no contact with Linpac.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 3
<PAGE> 8
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
HISTORICAL OVERVIEW
[_] Ropak West Inc. was founded in La Mirada, California in 1978 and became a
publicly owned company in December 1981 when it was merged with an
inactive publicly held corporation.
[_] The company's name was changed to Ropak Corporation in 1985.
[_] In December 1985, Ropak issued one million shares of common stock at
$11.00 per share in an equity offering.
[_] In 1989, Ropak acquired a 20% equity interest in the predecessor company
of InVitro International. It further increased its interest through
subsequent transactions to approximately 1,340,337 shares between 1990 and
1991.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 4
<PAGE> 9
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
HISTORICAL OVERVIEW (CONTINUED)
[_] Linpac Group, a large U.K.-based privately-held packaging company,
acquired an 8.5% interest in Ropak in 1992 when it purchased from
Massachusetts Mutual Life Insurance Company convertible debt issued by
Ropak in 1985. The principal amount of this debt was $1,250,000.
[_] In April and June 1993, respectively, Ropak acquired the assets of two
Canadian companies, CRS Plastics ("CRS"), a division of Vulcan Packaging,
Inc. ("Vulcan"), and the injection molding division of Vulcan.
[_] The $5.2 million acquisition of Vulcan's injection molding division was
funded through the issuance of preferred stock of Ropak Canada, which is
exchangeable into 577,778 shares of Ropak common stock at $9.00 per share.
[_] The $3.5 million acquisition of CRS was funded through the issuance of an
exchangeable subordinated promissory note, exchangeable for one million
shares of InVitro International common stock.
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[LOGO OF WERTHEIM SCHRODER & CO.] Page 5
<PAGE> 10
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
HISTORICAL OVERVIEW (CONTINUED)
[_] In November 1993, Vulcan exchanged the promissory note issued by Ropak for
one million shares of InVitro International held at the time by Ropak. As
a result of this transaction, along with the sale of 31,233 shares for
cash which also took place in 1993, Ropak's interest in InVitro
International common stock decreased from 1,340,337 shares to 309,104
shares.
[_] On October 14, 1994, Linpac acquired all of the preferred stock issued in
the Vulcan acquisition from the National Bank of Canada which held the
stock as collateral for loans made to Vulcan.
[_] Currently, the Company owns and operates ten plants in the United States
and Canada, including a new materials handling facility in Kentucky which
became fully operational in November 1994. Ropak is projecting $124.4
million in 1994 sales.
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<PAGE> 11
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
RECENT HIGHLIGHTS
[_] 1992 Acquisition by Linpac of an 8.5% interest in Ropak
[_] April and June, 1993 Acquisition of CRS Plastics and the injection
molding division of Vulcan Packaging, Inc.
[_] April 4, 1994 Publication of research report on Ropak, by
Bridgecorp Securities with buy recommendation.
Stock closes at $5.50 with volume of 2,000 shares.
[_] September 1, 1994 "The Kon-Lin Letter" gives buy recommendation on
Ropak. Stock closes at $7.75 with volume of 3,400
shares.
[_] September 19, 1994 Article in Los Angeles Times recommending Ropak
stock. Stock closes at $8.31 with volume of
154,700 shares.
[_] September 23, 1994 Volume of 635,900 shares (14.8% of total shares
outstanding). Stock closes at $9.50 with volume
of 635,900 shares.
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<PAGE> 12
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
RECENT HIGHLIGHTS (CONTINUED)
[_] September 28, 1994 Announcement of Linpac offer of $10.50 for all
common equity of Ropak, other than the share held
by Linpac. Stock closes at $10.00 with volume of
406,500 shares
[_] September 29, 1994 684,000 shares of Ropak traded (15.8% of total
shares outstanding). Stock closes at $10.13
[_] October l4, 1994 Acquisition by Linpac of Vulcan Preferred Stock
from the National Bank of Canada for $5.922
million, equivalent to $10.25 per share. Stock
closes at $10.00
[_] November 1, 1994 Start-up of Kentucky material handling facility
[_] November 8, 1994 Retention of Wertheim Schroder by the Special
Committee of the Board of Ropak Corporation to
evaluate the Linpac proposal
[_] November 17, 1994 Release of Third Quarter results
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<PAGE> 13
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
OWNERSHIP INFORMATION
<TABLE>
<S> <C>
Shares Outstanding on October 31, 1994 4,299,184
Shares Outstanding on October 31, 1994
(including conversion of Convertible Preferred Stock) 4,876,961
Fully Diluted Shares
(including conversion of Convertible Preferred Stock) 5,351,492
Shares controlled by Linpac 2,159,964(1)
(40.4% of fully diluted shares outstanding)
</TABLE>
(1) Includes 100,000 shares purchased in the market by Linpac between 9/30/94
and 10/24/94 as disclosed in the 13-D dated 11/10/94.
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<PAGE> 14
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
OWNERSHIP INFORMATION (CONTINUED)
Institutional Investors
<TABLE>
<CAPTION>
No. of % of Shares
Institutional Investor Shares Outstanding Reporting Date
--------------------------------------- --------- ----------- --------------
<S> <C> <C> <C>
Chesapeake Partners Management Co. Inc. 273,500 6.4% 10/94
Fidelity Management & Resource Corp. 267,500 6.2% 6/94
Killen Group 261,300 6.1% 6/94
Dimensional Fund Advisors 180,760 4.2% 6/94
Wells Fargo Institutional Trust 104,213 2.4% 6/94
Mellon Bank Corporation 29,465 0.7% 6/94
--------- -----
Total 1,116,738 26.0%
========= =====
</TABLE>
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<PAGE> 15
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
CONTACTS SINCE ANNOUNCEMENT
OF WERTHEIM SCHRODER ENGAGEMENT
[_] The Harbour Group: The Harbour Group, a private investment firm based in
St. Louis, Missouri, called Wertheim Schroder after the public announcement
related to the retention of Wertheim Schroder as financial adviser to the
Special Committee. They indicated they had met with the Roper family and
asked if a package of confidential information on the Company was
available. The Harbour Group was particularly interested in Ropak's 1995
projections. Wertheim Schroder indicated that it was not authorized to
provide confidential information at this time and that it would contact
The Harbour Group at a later date.
[_] Mabon Nugent Securities: Terry L. Nagelvoort was contacted around November
17, 1994 by Julie Heckman of Mabon Nugent Securities who indicated she had
an interested client who was familiar with the Company and who had visited
its facilities. Gianmaria Delzanno of Wertheim Schroder spoke with Ms.
Heckman who indicated she would talk to her client to discuss its interest
in Ropak and would get back to Wertheim Schroder. She also asked to have
a copy of a research report, which was sent to her.
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<PAGE> 16
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
CONTACTS SINCE ANNOUNCEMENT
OF WERTHEIM SCHRODER ENGAGEMENT
(CONTINUED)
[_] Scholey Company: Scholey is a Newport Beach based company that produces
materials handling and other products. William Scholey contacted Ropak
shortly after the announcement of the proposed Ropak/Linpac merger. No
discussions have been held with the company since the initial contact.
Gianmaria Delzanno attempted to contact William Scholey on November 22,
1994, but was unsuccessful. A message was left for William Scholey to
return Gianmaria Delzanno's call.
[_] Neither Quanex nor Sun Coast has contacted Wertheim Schroder.
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<PAGE> 17
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
TRANSACTION OVERVIEW
Terms of the Linpac Offer
<TABLE>
<S> <C>
Price per Share: $10.50
Total Number of Fully Diluted Shares(1): 5,351,492
Net Exercise Price of Options: $2.515 million
Total Implied Value of Linpac Offer: $53.676 million
Net Debt Outstanding(1) $32.358 million(1)
---------------
Total Implied Enterprise Value: $86.034 million
---------------
</TABLE>
(1) Assumes conversion at $9.00 per share of Preferred Stock purchased by
Linpac into 577,778 shares.
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<PAGE> 18
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
TRANSACTION OVERVIEW
Valuation of Ropak under terms of Linpac offer
<TABLE>
<CAPTION>
Multiple implied
Ropak by Linpac offer
---------------- ----------------
<S> <C> <C>
LTM Primary EPS $0.68 15.5x
LTM Fully Diluted EPS $0.58 18.0x
Projected Primary 1994 EPS $0.79 13.3x
Projected Primary 1995 EPS $0.95 11.0x
Shareholders' Equity $29.347 million 1.8x
LTM Net Sales $120.520 million 0.7x
LTM EBIT $7.039 million 12.2x
LTM EBITDA $14.551 million 5.9x
</TABLE>
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<PAGE> 19
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
INDUSTRY OVERVIEW
[_] The plastic container, packaging and materials handling industries
are cyclical, with sales and profitability dependent on the state of
the economy.
[_] Certain segments of the plastic container and packaging industries
are less cyclical than others. In particular, the food, agriculture,
fishing, dairy, and food processing markets are less likely to be impacted
by economic cycles.
[_] Plastics are replacing other materials such as metal, wood and fiber
in several applications, but at a slower pace than in the past few
years.
[_] There is significant growth potential in the materials handling market.
However, at present, a large portion of the sales of these products
are to the cyclical automotive industry.
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<PAGE> 20
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
INDUSTRY OVERVIEW (CONTINUED)
[_] Demand for plastic containers, packaging and materials handling products
is expected to be at least as strong in 1995 as in 1994.
[_] The tight polyethylene supply condition that exists in the market today
is expected to continue through the end of the first quarter of 1995,
at which time supplies should begin to increase. Polyethylene prices are
expected to stabilize after the first quarter of 1995.
[_] Injection molded product manufacturers are generally able to pass resin
price increases to customers and, at the same time, expand gross margins.
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<PAGE> 21
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
EFFECT OF RESIN PRICE ON ROPAK GROSS MARGIN
[GRAPH GOES HERE]
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<PAGE> 22
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
BUSINESS DESCRIPTION
Product Lines
[_] Industrial Containers
[_] Collapsible Pallet-Sized Bins
[_] Other Products
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<PAGE> 23
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
BUSINESS DESCRIPTION
Product Lines (continued)
[_] Ropak designs, manufactures and markets a broad range of rigid plastic
shipping containers for use in the food, specialty chemical, fishing,
paints, and a wide variety of other industries.
[_] Ropak also designs, manufactures and markets a broad range of packaging
and materials handling products.
[_] Industrial Containers
- Ropak's line of industrial shipping containers include 1, 2, 3 1/2,
4 1/4, 5, and 6 gallon containers and matching lids in a variety
of colors.
- The Company's standard industrial covers are designed to package
hazardous chemicals and other materials. Other covers are available
for non-hazardous products.
- The Company also manufactures square containers, primarily for seasonal
businesses, to package fruit, fish roe, and other food products.
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<PAGE> 24
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
BUSINESS DESCRIPTION
Product Lines (continued)
[_] Collapsible Pallet-Sized Bins
- Beginning in 1989, Ropak entered the collapsible bin business through
the Company's Materials Handling Division. Most of the Company's
product line has typically been manufactured by an independent firm
using Ropak owned tooling.
- To date, most of the Company's collapsible bins have been sold to
the automotive industry (e.g., Chrysler).
- In November 1994, Ropak began operations at a new materials handling
manufacturing facility located in Kentucky.
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<PAGE> 25
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
BUSINESS DESCRIPTION
Product Lines (continued)
[_] Other Products
- Plastic containers with lids and associated holding trays for
installation in freezer cabinets of retail ice cream stores.
- Four liter containers designed to hold ice cream, sour cream, yogurt,
cottage cheese and other semi-soft retail products.
- Plastic trays for growing and handling seedlings, storage trays,
plastic drums, and plastic jugs.
- New round and square products for use in the retail industry for
holding pet food, bird seed, laundry detergent, kitty litter, and
other retail items.
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<PAGE> 26
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
BUSINESS DESCRIPTION
Joint Ventures and Investments
Flamegrace Limited
[_] As of July 1, 1988, the Company entered into a joint venture agreement
in which Ropak acquired a 50% interest in Flamegrace Limited of the
U.K. for $900,000 total, paid in cash and 83,994 shares of Ropak stock.
[_] Flamegrace Limited has developed a one-piece cold-formed plastic container
intended for use in the paint industry.
[_] As part of the joint venture, Ropak has exclusive U.S. and Canadian
rights to Flamegrace's cold-forming technology and certain product
designs. Royalties are to be paid to Flamegrace as a percentage of
total plastic paint container sales. To date, Ropak has not developed
any products using Flamegrace's technology.
[_] As part of its equity stake in the joint venture, Ropak also receives
a 50% interest in the royalties generated by the same Flamegrace
technologies and patents worldwide, except for Columbia and the U.K.
[_] The current book value of Ropak's joint venture in Flamegrace is $0.
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<PAGE> 27
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
BUSINESS DESCRIPTION
Joint Ventures and Investments (continued)
Daitainer Co. Ltd.
[_] In October 1989, the Company entered into a shareholders agreement
with four Japanese companies, led by C. Itoh & Co., to organize Daitainer
Co. Ltd. The agreement provided for the marketing of Ropak's
North-American made products in Japan as well as for the joint
manufacturing of several products in a Japanese facility.
[_] Ropak currently owns 30% of the capital stock of Daitainer and has
agreed to provide Daitainer with technical, operating and marketing
support. Ropak also has licensed to Daitainer the rights to manufacture
Ropak's plastic containers in Japan in exchange for royalty payments.
[_] The Japanese participants in the joint venture have agreed to provide
raw materials, technical know-how, marketing support, employment
assistance, and leased facilities to Daitainer.
[_] To date, the operations of Daitainer have not been profitable.
[_] The book value of Ropak's investment in Daitainer has been written
down to $0.
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<PAGE> 28
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
BUSINESS DESCRIPTION
Joint Ventures and Investments (continued)
Clamar Plastics
[_] In September 1992, Ropak sold the assets of its Bishop Falls, Newfoundland
manufacturing facility to Clamar Plastics for approximately $414,000
in cash and $66,000 in assets.
[_] In connection with the transaction, the Company acquired a 20% interest
in Clamar Plastics.
[_] The book value of this investment is approximately $20,000.
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<PAGE> 29
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
STRATEGIC HIGHLIGHTS
[_] 1992-1994 Refocus on core business
[_] 1993-1994 Acquisitions of CRS Plastics and the pail division of
Vulcan Plastics
[_] 1994 Start up of new Materials Handling plant in Kentucky
[_] 1994-1997 Focus on New Products and Materials Handling
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<PAGE> 30
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
STRATEGIC HIGHLIGHTS
[_] Between 1988 and 1992, the Company pursued a diversification strategy
with the formation of Daitainer Co. Ltd. and investments in Flamegrace
Limited and InVitro International (formerly Ropak Laboratories).
[_] Between 1992 and 1994, the Company began to refocus its manufacturing
efforts on its core pail and materials handling businesses.
[_] During 1993 and 1994, the Company invested significantly in its core
businesses with the acquisition of CRS Plastics and of the pail division
of Vulcan Plastics (both of Canada) and with the development of a new
materials handling facility in Kentucky. In addition, in these two
years, the Company invested approximately $17.4 million in capital
expenditures, 18.4% more than the previous three year period.
[_] Currently, the Company is one of the leaders in the North American
pails and materials handling markets and is recognized for innovative
design, quality and customer service.
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<PAGE> 31
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
STRATEGIC HIGHLIGHTS (CONTINUED)
[_] In the next three years, a larger portion of the Company's revenues
will be derived from materials handling products and new containers
designed for the retail packaging industry, including food, detergent,
pet foods, and other products.
[_] In 1994, new product sales are projected to be $2.9 million. Under
the August 1993, three-year plan, new product sales were expected to
increase to $17.7 million in 1997. In the November 1994 plan, the Company
expects to achieve $14.7 million in 1997 new product sales, accounting
for almost 30% of net sales growth over the 1995-1997 three-year period.
[_] In 1994, materials handling product sales are projected at $17.5 million.
In the November 1994 plan, the Company expects to achieve $35.0 million
in 1997 material handling product sales accounting for over 40% of
net sales growth over the 1995-1997 three-year period.
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<PAGE> 32
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
NEW PRODUCT OPPORTUNITIES
[_] New product growth opportunities exist in five major markets:
- Bird Feed
- Dry Pet Food
- Ice Melt
- Kitty Litter
- Laundry Detergent
[_] The E-Z cover, by allowing Ropak to convert an industrial container
to a more user friendly retail container, has attracted strong interest.
The Company has no competition in this market.
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<PAGE> 33
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
MAJOR CONTRIBUTORS TO FUTURE GROWTH
[_] New Products Net sales projected to increase from $2.9 million
(or 2.4% of net sales) in 1994 to $14.7 million
(or 8% of net sales) in 1997. New products account
for approximately 30% of net sales growth between
1995 and 1997.
[_] Material Handling Net sales projected to increase from $17.5 million
(or 14.1% net sales) in 1994 to $35 million (or
20.9% of net sales) in 1997. Materials handling
accounts for over 40% of net sales growth between
1995 and 1997.
[_] New products and materials handling together account for approximately
68% of the 1995-1997 projected growth in net sales.
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<PAGE> 34
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
FINANCIAL REVIEW
<TABLE>
<CAPTION>
Nine Months Ended September 30,
---------------------------------------------------------------
Growth Growth
Actual 1994 Rate(2) Budget 1994 Rate(2) Actual 1993
----------- ------- ----------- ------- -----------
% %
<S> <C> <C> <C> <C> <C>
Net Sales $96,922 19 $96,566 18 $81,594
EBITDA 13,014 35 13,095 36 9,626
EBIT 7,543(1) 53 7,626 60 4,763
Net Income 3,216(1) 92 3,487 108 1,675
EPS Primary 0.73 92 0.79 108 0.38
Fully Diluted 0.63 66 0.68 79 0.38
</TABLE>
(1) Excluding reserves of $500,000 taken in the third quarter 1994.
(2) Growth rates are over actual 1993 results.
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<PAGE> 35
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
THREE YEAR PLAN
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<PAGE> 36
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
AUGUST 1993 THREE-YEAR PLAN
[_] The August 1993 three-year plan shows a significant contribution from
new products and materials handling products, which together account
for approximately 68% of the total increase in net sales between 1994
and 1996. In addition, the core business is projected to increase over
the three year period at an average annual rate of 3.8% in terms of
net sales.
[_] The August 1993 three-year plan further assumes that net sales for
the U.S. Division would grow by 31.7%; net sales for the Canadian Division
would grow by 20.5% and net sales for the Materials Handling Division
would grow by 53% over the 1994-1996 period. These increases correspond
to annual average growth rates of 9.6%, 6.4% and 15.2% respectively
for each of the three Divisions.
[_] The August 1993 plan assumes a significant improvement in both Gross
and EBIT margins which results from both lower manufacturing costs
derived from increased volume and capacity utilization, as well as
a change in product mix with new products and materials handling products
having higher margins than the core business.
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<PAGE> 37
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
AUGUST 1993 THREE-YEAR PLAN
<TABLE>
<CAPTION>
Years Ending December 31,
--------------------------------------------
1994-1996
Average
1993A(1) 1994 1995 1996 Growth Rate
-------- -------- -------- -------- -----------
<S> <C> <C> <C> <C> <C>
Net Sales $105,192 $119,599 $141,390 $156,097 9.3%
EBITDA 13,886 20,100 24,933 27,447 17.0%
EBIT 4,388 6,197 14,056 18,676 44.4%
Net Income 1,511 2,088 6,411 8,952 62.5%
Capital
Expenditures 6,005 13,903 10,877 8,771 NM
</TABLE>
(1) Excludes one-time and non-recurring items.
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<PAGE> 38
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
AUGUST 1993 THREE-YEAR PLAN
<TABLE>
<CAPTION>
Fiscal Years Ending December 31,
-----------------------------------------------
1993A(1) 1994 1995 1996
-------- -------- -------- --------
% % % %
<S> <C> <C> <C> <C>
Net Sales 100.0 100.0 100.0 100.0
EBITDA 13.2 16.8 17.6 17.6
EBIT 4.2 5.2 9.9 12.0
Net Income 1.4 1.7 4.5 5.7
</TABLE>
(1) Excludes one-time and non-recurring items.
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<PAGE> 39
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
NOVEMBER 1994 THREE-YEAR PLAN
[_] The November 1994 three-year plan reflects two key adjustments made
to the original plan. The first results from a devaluation of the Canadian
dollar as compared to the U.S. dollar. The August 93 plan was based
on an exchange rate of CDN$1.00 = U.S.$0.80. The November 94 plan is
based on an exchange rate of CDN$1.00 = U.S.$0.74.
[_] The second adjustment is the reduction by approximately 1.5% Gross
Margins and approximately 2.0% of EBIT Margins based on a review of
general market conditions.
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<PAGE> 40
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
NOVEMBER 1994 THREE-YEAR PLAN (CONTINUED)
[_] Other factors considered in the revision of the August '93 plan were:
(1) an expected loss of net sales at Ropak Canada - Capilano Division
resulting from the relocation of a major customer's manufacturing
operation;
(2) a loss of net sales at Ropak Canada - Burlington Division in
connection with the integration of the Vulcan operating division
acquired in 1993;
(3) a gain in net sales due to an improvement in CRS results.
[_] The November 1994 three-year plan further assumes a delay in the
introduction of new products in 1995 which will result in the loss
of approximately $1.4 million in net sales.
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<PAGE> 41
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
NOVEMBER 1994 THREE YEAR PLAN
<TABLE>
<CAPTION>
Years Ending December 31,
-----------------------------------------------------------------
1994-1997
Average
Growth
1993A(1) 1994 L/E 1995 1996 1997 Rate
-------- -------- -------- -------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
Net Sales $105,192 $124,439 $133,467 $150,739 $167,338 10%
EBITDA 13,886 15,182 18,890 23,561 27,153 21%
EBIT 4,388 8,239 10,155 14,766 18,055 30%
Net Income 1,511 3,464 4,184 6,917 8,918 37%
Capital
Expenditures 6,005 11,357 16,602 8,260 9,460 NM
</TABLE>
(1) Excludes one-time and non-recurring items.
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<PAGE> 42
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
NOVEMBER 1994 THREE YEAR PLAN
<TABLE>
<CAPTION>
Fiscal Years Ending December 31,
--------------------------------------------------------------
1993A(1) 1994 1995 1996 1997
-------- ----- ----- ----- -----
% % % % %
<S> <C> <C> <C> <C> <C>
Net Sales 100.0 100.0 100.0 100.0 100.0
EBITDA 13.2 12.2 14.2 15.6 16.2
EBIT 4.2 6.6 7.6 9.8 10.8
Net Income 1.4 2.8 3.1 4.6 5.3
</TABLE>
(1) Excludes one-time and non-recurring items.
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<PAGE> 43
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
NOVEMBER 1994 THREE-YEAR PLAN
Annual Growth Assumptions
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Net Sales 7% 13% 11%
EBITDA 24% 25% 15%
EBIT 23% 45% 22%
Net Income 21% 65% 29%
</TABLE>
Historical and Projected Average Annual Growth Rates
<TABLE>
<CAPTION>
1989-1994 1994-1997
--------- ---------
<S> <C> <C>
Net Sales 7% 14%
EBITDA 8% 21%
EBIT 12% 48%
Net Income 36% 81%
</TABLE>
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<PAGE> 44
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
STOCK PRICE PERFORMANCE
[_] IPO in 1985 at $11.00 per share. Since the public offering there have
been four 10% stock dividends.
[_] Between January 1, 1990 and September 1, 1994 the stock traded between
$4.50 and $8.50.
[_] Ropak's small capitalization, and the large percentage of total shares
outstanding held by the Roper family and Linpac, cause the market for
the stock to be illiquid.
[_] Average daily volume in the 12 months through September 1, 1994 was
8,217 shares, or only 0.2% of the average number of shares outstanding.
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<PAGE> 45
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
STOCK PRICE PERFORMANCE (CONTINUED)
[_] No major Wall Street firm publishes research on the Company; the most
recent research report available was published by Bridgeport Securities
in April 1994 with a buy recommendation.
[_] Investors had no information about the future prospects of the company
until the publication of the Bridgeport Securities report and a buy
recommendation in "The Kon-Lin Letter" on September 1.
[_] Since September 1, average trading volume has been 78,596 shares, nearly
10 times the average before that date.
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<PAGE> 46
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
Price/Volume Graph for Ropak Stock
1/1/90-11/28/94
[GRAPH GOES HERE]
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 42
<PAGE> 47
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
Price/Volume Graph for Ropak Stock
7/1/1994-11/28/1994
[GRAPH GOES HERE]
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 43
<PAGE> 48
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
ROPAK TRADING DATA SINCE 8/1/1994
<TABLE>
<CAPTION>
Closing | Closing | Closing
Date Volume Price | Date Volume Price | Date Volume Price
---- ------ ------- | ---- ------ ------- | ---- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
8/15/94 1,400 $6.25 | 9/19/94 154,700 $ 8.31 | 10/24/94 9,600 $10.19
8/16/94 100 6.25 | 9/20/94 300,600 9.00 | 10/25/94 9,600 10.19
8/17/94 10,600 6.50 | 9/21/94 290,500 9.00 | 10/26/94 15,000 10.19
8/18/94 51,200 7.00 | 9/22/94 435,100 9.00 | 10/27/94 24,700 10.13
8/19/94 76,300 7.50 | 9/23/94 635,900 9.50 | 10/28/94 7,200 10.13
8/22/94 42,700 7.63 | 9/26/94 81,900 9.00 | 10/31/94 6,500 10.13
8/23/94 13,900 7.50 | 9/27/94 73,200 9.00 | 11/1/94 46,600 10.13
8/24/94 19,100 7.38 | 9/28/94 406,500 10.00 | 11/2/94 34,700 10.13
8/25/94 20,700 7.50 | 9/29/94 678,500 10.13 | 11/3/94 8,600 10.13
8/26/94 78,400 8.00 | 9/30/94 132,900 10.13 | 11/4/94 35,100 10.00
8/29/94 19,700 8.13 | 10/3/94 141,500 10.38 | 11/7/94 59,400 10.13
8/30/94 29,700 7.63 | 10/4/94 115,100 10.38 | 11/8/94 60,900 10.25
8/31/94 18,500 7.94 | 10/5/94 17,100 10.31 | 11/9/94 7,400 10.13
9/1/94 3,400 7.75 | 10/6/94 79,600 10.13 | 11/10/94 12,500 10.13
9/2/94 4,700 8.00 | 10/7/94 41,100 10.25 | 11/11/94 28,000 10.19
9/5/94 0 8.00 | 10/10/94 13,300 10.25 | 11/14/94 51,300 10.25
9/6/94 40,300 7.75 | 10/11/94 6,700 10.13 | 11/16/94 10,300 10.13
9/7/94 3,100 7.50 | 10/12/94 10,000 10.13 | 11/17/94 70,900 10.25
9/8/94 29,400 7.50 | 10/13/94 11,000 10.13 | 11/18/94 400 10.00
9/9/94 15,100 7.50 | 10/14/94 1,600 10.00 | 11/21/94 12,500 10.25
9/12/94 6,500 7.50 | 10/17/94 95,800 10.25 | 11/22/94 6,100 10.25
9/13/94 10,100 7.50 | 10/18/94 16,100 10.25 | 11/23/94 3,400 10.25
9/14/94 2,600 7.50 | 10/19/94 6,800 10.25 | 11/24/94 500 10.25
9/15/94 1,500 7.63 | 10/20/94 60,700 10.13 | 11/25/94 7,000 10.13
9/16/94 12,900 7.38 | 10/21/94 8,400 10.25 | 11/28/94 2,000 10.25
</TABLE>
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[LOGO OF WERTHEIM SCHRODER & CO.] Page 44
<PAGE> 49
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
VALUATION
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 45
<PAGE> 50
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
VALUATION METHODOLOGY
[_] Publicly traded comparable companies analysis
[_] Study of control premiums in comparable transactions
[_] Comparable Merger & Acquisition transactions ("M&A")
[_] Discounted Cash Flow Analysis ("DCF")
[_] Leveraged Buyout Analysis ("LBO")
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 46
<PAGE> 51
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
COMPARABLE PUBLICLY TRADED COMPANY ANALYSIS
[_] AEP Industries, Inc.
[_] Furon Company
[_] Intertape Polymer Group, Inc.
[_] Liqui-Box Corporation
[_] Park-Ohio Industries
[_] Sealright Company, Inc.
[_] Tuscarora, Inc.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 47
<PAGE> 52
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
COMPARABLE PUBLICLY TRADED COMPANY ANALYSIS
Considered but excluded:
[_] CFI Industries, Inc.
[_] International Container Systems Inc.
[_] IPL Systems, Inc.
[_] Portage Industries Corporation
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 48
<PAGE> 53
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
COMMENTS ON COMPARABLE PUBLICLY TRADED COMPANIES
Other Comparable Companies Considered
<TABLE>
<CAPTION>
Company Reason for Excluding
------------------------------------ -----------------------------------------
<S> <C>
CFI Industries, Inc. The company is too small with a market
capitalization of approximately $7
million.
International Container Systems Inc. The company is too small, with a market
capitalization of less than $5 million.
IPL Systems Inc. The company experienced significant
losses in 1993 and the latest twelve
months period, making most market
multiples meaningless. In addition,
the company is too small with
approximately $19 million in market
capitalization.
Portage Industries Corporation The company is too small, with a market
capitalization of less than $6 million.
</TABLE>
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[LOGO OF WERTHEIM SCHRODER & CO.] Page 49
<PAGE> 54
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
COMPARABLE PUBLICLY TRADED COMPANY ANALYSIS
<TABLE>
<CAPTION>
Comparable Companies
Ropak(1) Average(1)
-------- --------------------
<S> <C> <C>
Gross Margin 21.4% 25.8%
EBIT Margin 5.8% 10.6%
EBITDA Margin 12.1% 16.1%
Net Income Margin 2.5% 6.2%
Projected 1995 EPS growth
(Over LTM EPS) 39.7% 26.3%
</TABLE>
(1) Based on LTM financial results.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 50
<PAGE> 55
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
COMPARABLE PUBLICLY TRADED COMPANY ANALYSIS
<TABLE>
<CAPTION>
Average
Ropak Comparable Implied
LTM company Equity
30-Sep-94 multiple Value
--------- ---------- -------
<S> <C> <C> <C>
Price/Primary LTM EPS $0.68 15.5x $53,972
Price/Projected 1994 EPS 0.79 11.9x 47,907
Price/Projected 1995 EPS 0.95 9.8x 47,716
Price/Fully Diluted LTM EPS 0.58 15.9x 47,173
Enterprise Value/EBIT 7,039 10.9x 44,477
Enterprise Value/EBITDA 14,551 6.8x 67,175
-------
Average: $51,403(1)
-------
Price Per Share: $10.08
------
</TABLE>
(1) Assumes exercise of options outstanding.
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[LOGO OF WERTHEIM SCHRODER & CO.] Page 51
<PAGE> 56
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
PREMIUM M&A ANALYSIS IN TRANSACTIONS SINCE 1/1/92
<TABLE>
<CAPTION>
Period Prior to Announcement
----------------------------------------------------
<S> <C> <C> <C>
Target Sector 1 Day 1 Week 4 Weeks
------------------------- ----- ------ -------
Manufacturing 28% 32% 34%
General Industry 37% 40% 46%
</TABLE>
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[LOGO OF WERTHEIM SCHRODER & CO.] Page 52
<PAGE> 57
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
VALUATION ON BASIS OF COMPARABLES PLUS PREMIUMS
<TABLE>
<S> <C>
Comparable Companies Valuation per Share $10.08
Acquisition Premium (28%-34%) $2.82-$3.43
-------------
Implied Acquisition Value per Share $12.90-$13.51
-------------
</TABLE>
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 53
<PAGE> 58
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
DCF MODELS
Sensitivity Analysis: Base Case
<TABLE>
<CAPTION>
1995-1997 1998-1999
------------------- ------------------
<S> <C> <C>
Net Sales Company projections Held at 1997 level
Gross and EBITDA Margins Company projections Held at 1997 level
Tax Rate Company projections Held at 1997 level
Interest Rates 50 basis points Held at 1997 level
above Company
projections
Accounts Receivable/Payable Company projections Held at 1997 level
& Inventory Turns
Capital Expenditures Company projections $9 million
(Amounts in $ millions) ($16.6; $8.3; $9.5)
</TABLE>
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 54
<PAGE> 59
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
DCF MODELS
Sensitivity Analysis: Downside Case
<TABLE>
<CAPTION>
1995-1997 1998-1999
--------------------- ------------------
<S> <C> <C>
Net Sales 5% lower than Held at 1997 level
Company projections
Gross and EBITDA Margins 1.5% lower than Held at 1997 level
Company projections
Tax Rate Company projections Held at 1997 level
Interest Rates 50 basis points above Held at 1997 level
Company projections
Accounts Receivable/Payable Company projections Held at 1997 level
& Inventory Turns
Capital Expenditures Company projections $9 million
(Amounts in $ millions) ($16.6; $8.3; $9.5)
</TABLE>
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 55
<PAGE> 60
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
DCF MODELS
Sensitivity Analysis: Upside Case
<TABLE>
<CAPTION>
1995-1997 1998-1999
--------------------- ------------------
<S> <C> <C>
Net Sales Company projections 5% increase from
previous year
Gross and EBITDA Margins Company projections Held at 1997 level
Tax Rate Company projections Held at 1997 level
Interest Rates 50 basis points above Held at 1997 level
Company projections
Accounts Receivable/Payable Company projections Held at 1997 level
& Inventory Turns
Capital Expenditures Company projections $9 million
(Amounts in $ millions) ($16.6; $8.3; $9.5)
</TABLE>
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 56
<PAGE> 61
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
DCF RESULTS
<TABLE>
<CAPTION>
Per Share Equity Valuation(1)
------------------------------------------------------
Discount Rates 14% 15% 16%
------ ------ ------
<S> <C> <C> <C>
Base Case $13.86 $13.08 $12.33
Downside Case $9.52 $8.91 $8.32
Upside Case $15.41 $14.56 $13.75
</TABLE>
(1) Assumes a 1999 EBITDA exit multiple of 6.0x.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 57
<PAGE> 62
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
LBO MODEL
The LBO analysis assumes the Downside Case:
<TABLE>
<CAPTION>
1995-1997 1998-1999
<S> <C> <C>
Net Sales 5% lower than Held at 1997 level
Company projections
Gross and Operating Margins 1.5% lower than Held at 1997 level
Company projections
Tax Rate Company projections Held at 1997 level
Interest Rate on Term Loan and 50 b.p. above Held at 1997 level
Revolver Company projections
Accounts Receivable/Payable Company projections Held at 1997 level
& Inventory Turns
Capital Expenditures $10 million in 1995 $7 million
$7 million thereafter
</TABLE>
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 58
<PAGE> 63
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
LBO MODEL
<TABLE>
<S> <C>
Price per share $11.00
1999 EBITDA Exit Multiple 6.0x
Interest Rate on Subordinated Debt 13.5%
5-Year IRR for Equity Investors 27.2%
Pro forma 1994 results:
EBITDA/Total Interest 2.0x
Total Debt/EBITDA 5.0x
Total Debt/Total Capital 76.3%
</TABLE>
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 59
<PAGE> 64
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
M&A ANALYSIS
[_] Merger & Acquisition transactions in the plastics, packaging, and general
industrial manufacturing industries were reviewed for the last three
years.
[_] Particular attention was focused on 1994 transactions.
[_] There were no direct comparable transactions in the plastic containers
and packaging sector.
[_] The transactions examined produce a wide valuation range as a result
of the large difference between EBIT and EBITDA of Ropak.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 60
<PAGE> 65
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
M&A ANALYSIS
Valuation Summary(1)
<TABLE>
<CAPTION>
Effective Date/ EV/ EV/ PP/
Announcement Date Target/Acquiror EBIT EBITDA Net Income
----------------- --------------- ----- ------ ----------
<S> <C> <C> <C> <C>
Jan. 27, 94/ Rexnord/
Dec. 2, 93 BTR Holdings 7.5x 5.6x 8.4x
Feb. 25, 94/ Aladdin Mills/
Dec. 6, 93 Mohawk Industries 12.5x 9.5x 19.9x
Aug. 5, 94/ Motor Coach Industries/
May 18, 94 Grupo Dina S.A. de C.V. 10.0x 9.1x 12.0x
Aug. 16, 94/ Mr. Coffee/
Jan. 21, 94 Health O Meter 10.8x 8.0x 19.3x
March 12, 93/ Carriage Industries/
Sept. 4, 93 Dixie Yarns 17.2x 8.3x 17.9x
----- ------ -----
Average: 11.6x 8.1x 15.5x
Price per Share $9.68 $16.49 $9.09
----- ------ -----
</TABLE>
(1) Based on last date available prior to announcement date.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 61
<PAGE> 66
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
VALUATION CONCLUSIONS
<TABLE>
<CAPTION>
Valuation Method Per Share Value
------------------------------------------------------ ---------------
<S> <C>
Publicly traded Comparable companies
and premium analysis $12.90-$13.51
DCF Analysis $12.33-$13.86
LBO Analysis $11.00
M&A Analysis $9.09-$16.49
</TABLE>
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 62
<PAGE> 67
Presentation to the Special Committee of the Board of Directors of Ropak
Corporation
INVESTMENT BANKING CONCLUSION
Wertheim Schroder deems a range of $12.50 to $13.50 per Ropak share to be
fair, from a financial point of view, to the shareholders of Ropak Corporation
other than Linpac or the members of the Roper family.
--------------------------------------------------------------------------------
[LOGO OF WERTHEIM SCHRODER & CO.] Page 63
<PAGE> 68
ROPAK CORPORATION
INCOME STATEMENT
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
--------------------------------------------------------------------------------------------
Actual Projected
------------------------------------------------ -----------------------------------------
1989(1) 1990(1) 1991(1) 1992(1) 1993(1) 1994(2) 1995(2) 1996(2) 1997(2)
------- ------- ------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NET SALES $89,801 $91,187 $94,013 $94,803 $105,192 $124,439 $133,467 $150,739 $167,338
Cost of Sales (71,463) (69,798) (73,259) (73,025) (83,509) (97,620) (103,531) (114,381) (125,816)
------------------------------------ ------- ------- ------- ------- -------- -------- -------- -------- --------
GROSS PROFIT 18,338 21,389 20,754 21,778 21,683 26,819 29,936 36,358 41,522
Operating Expenses (excl. D&A) (8,082) (10,975) (11,581) (8,493) (10,391) (11,612) (11,046) (12,797) (14,369)
------------------------------------ ------- ------- ------- ------- -------- -------- -------- -------- --------
EBITDA 10,256 10,414 9,173 13,285 11,292 15,207 18,890 23,561 27,153
Depreciation & Amortization (5,639) (5,902) (6,243) (6,323) (6,455) (6,519) (8,735) (8,795) (9,098)
------------------------------------ ------- ------- ------- ------- -------- -------- -------- -------- --------
EBIT 4,617 4,512 2,930 6,962 4,388 8,239 10,155 14,766 18,055
Other Income/(Expense) (353) (396) (510) (421) 15 0 0 0 0
Net Interest Income/(Expense) (2,969) (3,000) (2,485) (1,608) (1,902) (2,166) (2,811) (2,629) (2,407)
------------------------------------ ------- ------- ------- ------- -------- -------- -------- -------- --------
PRE-TAX INCOME 1,295 1,116 (65) 4,933 2,501 6,073 7,344 12,137 15,648
Income Tax Expense (550) (705) 7 (2,680) (990) (2,609) (3,160) (5,220) (6,730)
------------------------------------ ------- ------- ------- ------- -------- -------- -------- -------- --------
NET INCOME $ 745 $ 411 $ (58) $ 2,253 $ 1,511 $ 3,464 $ 4,184 $ 6,917 $ 8,918
======= ======= ======= ======= ======== ======== ======== ======== ========
</TABLE>
(1) Results have been adjusted to eliminate one-time and unusual charges.
(2) As projected by management.
<PAGE> 69
ROPAK CORPORATION
MARGIN ANALYSIS
(dollars in millions)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
---------------------------------------------------------------------------------------
Actual Projected
----------------------------------------------- -------------------------------------
1989(1) 1990(1) 1991(1) 1992(1) 1993(1) 1994(2) 1995(2) 1996(2) 1997(2)
------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NET SALES 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of Sales (79.6)% (76.5)% (77.9)% (77.0)% (79.4)% (78.4)% (77.6)% (75.9)% (75.2)%
------------------------------------- ------- ------- ------- ------- ------- ------- ------- ------- -------
GROSS PROFIT 20.4% 23.5% 22.1% 23.0% 20.6% 21.6% 22.4% 24.1% 24.8%
Operating Expenses (excl. D&A) (9.0)% (12.0)% (12.3)% (9.0)% (9.9)% (9.3)% (8.3)% (8.5)% (8.6)%
------------------------------------- ------- ------- ------- ------- ------- ------- ------- ------- -------
EBITDA 11.4% 11.4% 9.8% 14.0% 10.7% 12.2% 14.2% 15.6% 16.2%
Depreciation & Amortization (6.3)% (6.5)% (6.6)% (6.7)% (6.1)% (5.2)% (6.5)% (5.8)% (5.4)%
------------------------------------- ------- ------- ------- ------- ------- ------- ------- ------- -------
EBIT 5.1% 4.9% 3.1% 7.3% 4.2% 6.6% 7.6% 9.8% 10.8%
Other Income/(Expense) (0.3)% (0.4)% (0.5)% (0.4)% 0.0% 0.0% 0.0% 0.0% 0.0%
Net Interest Income/(Expense) (3.3)% (3.3)% (2.6)% (1.7)% (1.8)% (1.7)% (2.1)% (1.7)% (1.4)%
------------------------------------- ------- ------- ------- ------- ------- ------- ------- ------- -------
PRE-TAX INCOME 1.4% 1.2% (0.1)% 5.2% 2.4% 4.9% 5.5% 8.1% 9.4%
Income Tax Expense (0.6)% (0.8)% 0.0% (2.8)% (0.9)% (2.1)% (2.4)% (3.5)% (4.0)%
------------------------------------- ------- ------- ------- ------- ------- ------- ------- ------- -------
NET INCOME 0.8% 0.5% (0.1)% 2.4% 1.4% 2.8% 3.1% 4.6% 5.3%
======= ======= ======= ======= ======= ======= ======= ======= =======
</TABLE>
(1) Results have been adjusted to eliminate one-time and unusual charges.
(2) As projected by management.
<PAGE> 70
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
ROPAK CORPORATION
VALUATION BASED ON COMPARABLE PUBLICLY TRADED COMPANIES
(amounts in thousands)
<TABLE>
<CAPTION>
Comparable Company Implied Enterprise Implied Equity
Ropak Multiples Value Value
LTM ----------------------- ------------------------------ -----------------------------
Valuation Multiple 30-SEP-94 Low Average(1) High Low Average High Low Average High
--------------------------- --------- ----- ---------- ----- ------- ------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Price/Primary LTM EPS $0.68 10.0x 15.5x 19.5x $66,273 $86,330 $100,717 $33,915 $53,972 $68,359
Price/Projected 1994 EPS 0.79 10.4x 11.9x 18.5x 73,839 80,265 108,310 41,481 47,907 75,952
Price/Projected 1995 EPS 0.95 8.4x 9.8x 14.6x 72,699 80,074 104,540 40,341 47,716 72,182
Price/Fully Diluted LTM EPS 0.58 10.7x 15.9x 20.2x 63,229 79,531 92,842 30,871 47,173 60,484
Market Value/Book Value 29,257 1.7x 2.3x 2.8x 81,710 100,071 115,084 49,352 67,713 82,726
Enterprise Value/Revenues 120,520 0.7x 1.0x 1.8x 81,523 125,251 215,089 49,165 92,893 182,731
Enterprise Value/EBIT 7,039 7.4x 10.9x 12.5x 51,986 76,835 87,881 19,628 44,477 55,523
Enterprise Value/EBITDA 14,551 5.3x 6.8x 8.4x 77,604 99,533 121,680 45,246 67,175 89,322
</TABLE>
<TABLE>
<CAPTION>
AVERAGE(2): AVERAGE(2):
----------- -----------
<S> <C> <C> <C> <C> <C>
$67,605 $83,761 $102,662 $35,247 $51,403 $70,304
======= ======= ======== ======= ======= =======
PRICE PER SHARE:
----------------
$7.06 $10.08 $13.61
===== ====== ======
</TABLE>
(1) Excludes high and low multiples.
(2) Excludes Market Value/Book Value and Enterprise Value/Revenues multiples.
<PAGE> 71
-----------------------------
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
COMPARISON OF PUBLICLY TRADED COMPARABLE COMPANIES
Market Value from Stock Closing Price as of 11/25/94
<TABLE>
<CAPTION>
Valuation Ratios
--------------------------------------------------------------------------------
Price/Primary LTM EPS Price/Projected 1994 EPS
-------------------------------------- --------------------------------------
<S> <C> <C> <C>
Furon Company 19.5x Tuscarora Inc. 18.5x
Tuscarora Inc. 18.5x Furon Company 18.4x
Intertape Polymer Group Inc. 18.3x Intertape Polymer Group Inc. 15.3x
Ropak Corp. 15.5x Sealright Co Inc. 14.5x
Liqui-Box Corp. 15.5x Ropak Corp. 13.3x
Sealright Co Inc. 14.7x A.E.P. Industries 11.5x
A.E.P. Industries 10.7x Park Ohio 10.4x
Park Ohio 10.0x Liqui-Box Corp. n/a
Price/Projected 1995 EPS Market Value/Book Value
-------------------------------------- --------------------------------------
Tuscarora Inc. 14.6x Liqui-Box Corp. 2.8x
Furon Company 14.1x Park Ohio 2.7x
Sealright Co Inc. 13.1x Intertape Polymer Group Inc. 2.3x
Intertape Polymer Group Inc. 12.1x Tuscarora Inc. 2.2x
Ropak Corp. 11.0x Furon Company 2.2x
A.E.P. Industries 9.8x A.E.P. Industries 2.1x
Park Ohio 8.4x Ropak Corp. 1.8x
Liqui-Box Corp. n/a Sealright Co Inc. 1.7x
Enterprise Value/Revenues Enterprise Value/EBIT
-------------------------------------- --------------------------------------
Intertape Polymer Group Inc. 1.8x Tuscarora Inc. 12.5x
Liqui-Box Corp. 1.4x Furon Company 12.4x
Tuscarora Inc. 1.3x Ropak Corp. 12.2x
Sealright Co Inc. 0.9x Park Ohio 11.9x
A.E.P. Industries 0.8x Intertape Polymer Group Inc. 11.8x
Park Ohio 0.8x Sealright Co Inc. 9.8x
Ropak Corp. 0.7x Liqui-Box Corp. 8.7x
Furon Company 0.7x A.E.P. Industries 7.4x
Enterprise Value/EBIT Enterprise Value/EBITDA
-------------------------------------- --------------------------------------
Tuscarora Inc. 12.5x Park Ohio 8.4x
Furon Company 12.4x Intertape Polymer Group Inc. 8.2x
Ropak Corp. 12.2x Furon Company 6.9x
Park Ohio 11.9x Liqui-Box Corp. 6.6x
Intertape Polymer Group Inc. 11.8x Tuscarora Inc. 6.5x
Sealright Co Inc. 9.8x Sealright Co Inc. 6.1x
Liqui-Box Corp. 8.7x Ropak Corp. 5.9x
A.E.P. Industries 7.4x A.E.P. Industries 5.3x
</TABLE>
<TABLE>
<CAPTION>
Operating Ratios
--------------------------------------------------------------------------------
Gross Margin EBIT Margin
-------------------------------------- --------------------------------------
<S> <C> <C> <C>
Liqui-Box Corp. 31.9% Liqui-Box Corp. 16.1%
A.E.P. industries 30.5% Intertape Polymer Group Inc. 15.2%
Furon Company 29.3% A.E.P. Industries 11.0%
Tuscarora Inc. 27.3% Tuscarora Inc. 10.4%
Intertape Polymer Group Inc. 22.7% Sealright Co Inc. 9.4%
Sealright Co Inc. 22.2% Park Ohio 6.4%
Ropak Corp. 21.4% Ropak Corp. 5.8%
Park Ohio 16.9% Furon Company 5.5%
Pretax Margin Net Margin
-------------------------------------- --------------------------------------
Liqui-Box Corp. 16.0% Liqui-Box Corp. 9.5%
Intertape Polymer Group Inc. 13.1% Intertape Polymer Group Inc. 8.1%
A.E.P. Industries 10.2% A.E.P. Industries 6.6%
Tuscarora Inc. 8.9% Tuscarora Inc. 5.6%
Sealright Co Inc. 7.6% Park Ohio 5.3%
Park Ohio 5.4% Sealright Co Inc. 4.5%
Furon Company 5.3% Furon Company 3.4%
Ropak Corp. 4.1% Ropak Corp. 2.5%
EBITDA Margin Total Debt/Capitalization
-------------------------------------- --------------------------------------
Intertape Polymer Group Inc. 21.9% Ropak Corp. 53.9%
Liqui-Box Corp. 21.3% Sealright Co Inc. 40.2%
Tuscarora Inc. 20.0% Park Ohio 38.9%
Sealright Co Inc. 15.3% Tuscarora Inc. 38.0%
A.E.P. Industries 15.3% Intertape Polymer Group Inc. 29.1%
Ropak Corp. 12.1% A.E.P. Industries 26.4%
Furon Company 9.8% Furon Company 21.6%
Park Ohio 9.1% Liqui-Box Corp. 2.8%
EBIT/Ending Assets Net Return on Ending Equity
-------------------------------------- --------------------------------------
Liqui-Box Corp. 25.6% Park Ohio 23.6%
A.E.P. Industries 17.3% A.E.P. Industries 19.3%
Intertape Polymer Group Inc. 12.0% Liqui-Box Corp. 18.8%
Sealright Co Inc. 11.2% Intertape Polymer Group Inc. 12.7%
Park Ohio 9.8% Tuscarora Inc. 12.1%
Furon Company 8.9% Sealright Co Inc. 11.5%
Ropak Corp. 8.1% Furon Company 11.5%
Tuscarora Inc. n/a Ropak Corp. 10.2%
</TABLE>
<PAGE> 72
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
COMPARISON OF SELECTED PUBLICLY TRADED PLASTIC & PACKAGING COMPANIES
(in thousands, except per share data)
<TABLE>
<CAPTION>
A.E.P. Furon
Industries Company
Ropak Corp. ------------ ---------
Business Description: ------------- Manufactures and sells Designs and
Designs, manufactures a variety of polyethylene manufactures advanced
and markets a film products for plastic components
broad range of rigid commercial, industrial, for the automotive,
plastic containers agricultural and construction aerospace and
Valuation Ratios for industry. applications. chemical industries.
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Price/Primary LTM EPS 15.5x 10.7x 19.5x
Price/Projected 1994 EPS 13.3x 11.5x 18.4x
Price/Projected 1995 EPS 11.0x 9.8x 14.1x
Price/Fully Diluted LTM EPS 18.0x 10.7x 20.2x
Market Value/Book Value 1.8x 2.1x 2.2x
Enterprise Value/Revenues 0.7x 0.8x 0.7x
Enterprise Value/EBIT 12.2x 7.4x 12.4x
Enterprise Value/EBITDA 5.9x 5.3x 6.9x
------------------------------------------------------------------------------------------------------------------------------------
Market Data
Symbol/Exchange ROPK/NMS AEPI/NASDAQ FCBN/NYSE
Closing Price as of 11/25/94 $10.50 $16.50 $21.50
52 Week Price Range $5.00-$10.50 $11.33-$21.00 $13.38-$21.25
Annual Current Dividend $0.00 $0.08 $0.12
Indicated Yield 0.0% 0.5% 0.6%
Shares Outstanding (000's) 4,299(a) Oct-94 7,368 Sep-94 8,709 Jul-94
Market Value (MV) $53,676 $121,571 $187,242
Enterprise Value $86,034 $138,883 $194,742
LTM Income Data
Last Twelve Months (LTM) 30-Sep-94 31-Jul-94 30-Jul-94
Fiscal Year Ended 31-Dec-93 31-Oct-93 29-Jan-94
Revenues $120,520 $170,645 $287,897
Gross Profit 25,738 51,985 84,251
EBIT 7,039 18,805 15,713
Pretax Income 4,968 17,485 15,392
Net Income(2) 2,978 11,275 9,912
Depreciation & Amortisation 7,512 7,236 12,419
Depreciation as % of EBITDA 52% 28% 44%
EBITDA 14,551 26,041 28,132
Earnings Per Share(1) $0.68 $1.54 $1.10
1994 Projected EPS(1)(# analysts) $0.79(b) $1.44(l) $1.17(l)
1995 Projected EPS(1)(# analysts) 0.95(l) 1.68(l) 1.52(l)
1996 Projected EPS(1)(# analysts) n/a(o) n/a(o) n/a(o)
Fully-Diluted LTM Earnings Per Share $0.58 $1.54 $1.07
LTM Balance Sheet Data
Total Assets $86,969 $108,704 $175,874
Cash & Equivalents 1,970 3,723 16,261
Long-term Debt 30,153 20,900 16,753
Total Debt 34,328 21,035 23,761
Preferred Stock + Minority Interests 0 0 0
Common Shareholders' Equity 29,347 58,502 86,398
Operating Ratios
Total Debt/Capitalization 53.9% 26.4% 21.6%
EBIT/Ending Assets 8.1% 17.3% 8.9%
Net Return on Ending Equity 10.2% 19.3% 11.5%
Gross Margin 21.4% 30.5% 29.3%
EBIT Margin 5.8% 11.0% 5.5%
Pretax Margin 4.1% 10.2% 5.3%
Net Margin 2.5% 6.6% 3.4%
</TABLE>
<TABLE>
<CAPTION>
Intertape
Polymer Liqui-Box
Group Inc. Corp. Park Ohio
------------ ----------- -----------
Business Description: Develops, manufactures Producer of Manufactures plastic
and sells a variety of bag-in-box flexible and steel containers
specialized polyolefin and injection moulded for the food and
plastic packaging products, packaging and of building industries,
primarily film carton sealing equipment for filling machined and rubber
Valuation Ratios tape and soft drink cases. the packages. products for transport.
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Price/Primary LTM EPS 18.3x 15.5x 10.0x
Price/Projected 1994 EPS 15.3x n/a 10.4x
Price/Projected 1995 EPS 12.1x n/a 8.4x
Price/Fully Diluted LTM EPS 18.3x 15.5x 11.5x
Market Value/Book Value 2.3x 2.8x 2.7x
Enterprise Value/Revenues 1.8x 1.4x 0.8x
Enterprise Value/EBIT 11.8x 8.7x 11.9x
Enterprise Value/EBITDA 8.2x 6.6x 8.4x
------------------------------------------------------------------------------------------------------------------------------------
Market Data
Symbol/Exchange ITP/NYSE LIQB/NMS PKOH/NASDAQ
Closing Price as of 11/25/94 $15.88 $33.00 $13.00
52 Week Price Range $12.00-$17.25 $33.00-$40.50 $11.63-$18.13
Annual Current Dividend $0.18 $0.39 $0.00
Indicated Yield 1.1% 1.2% 0.0%
Shares Outstanding (000's) 10,462(a) Jul-94 6,300 Nov-94 8,944 Oct-94
Market Value (MV) $166,084 $207,886 $116,268
Enterprise Value $199,262 $202,793 $142,177
LTM Income Data
Last Twelve Months (LTM) 30-Jun-94 1-Oct-94 30-Sep-94
Fiscal Year Ended 31-Dec-93 1-Jan-94 31-Dec-93
Revenues $111,652 $144,887 $187,372
Gross Profit 25,291 46,177 31,718
EBIT 16,948 23,288 11,957
Pretax Income 14,600 23,113 10,123
Net Income(2) 9,018 13,810 9,959
Depreciation & Amortisation 7,461 7,565 5,045
Depreciation as % of EBITDA 31% 25% 30%
EBITDA 24,409 30,853 17,002
Earnings Per Share(1) $0.87 $2.13 $1.30
1994 Projected EPS(1)(# analysts) $1.04(3) n/a(o) $1.25(l)
1995 Projected EPS(1)(# analysts) 1.31(3) n/a(o) 1.55(l)
1996 Projected EPS(1)(# analysis) n/a(o) n/a(o) n/a(o)
Fully-Diluted LTM Earnings Per Share $0.87 $2.13 $1.13
LTM Balance Sheet Data
Total Assets $141,619 $90,857 $122,133
Cash & Equivalents 147 7,174 975
Long-term Debt 24,041 28 24,903
Total Debt 32,107 2,081 26,884
Preferred Stock + Minority Interests 1,217 0 0
Common Shareholders' Equity 76,835 73,521 42,281
Operating Ratios
Total Debt/Capitalization 29.1% 2.8% 38.9%
EBIT/Ending Assets 12.0% 25.6% 9.8%
Net Return on Ending Equity 12.7% 18.8% 23.6%
Gross Margin 22.7% 31.9% 16.9%
EBIT Margin 15.2% 16.1% 6.4%
Pretax Margin 13.1% 16.0% 5.4%
Net Margin 8.1% 9.5% 5.3%
</TABLE>
<TABLE>
<CAPTION>
Sealright Co Tuscarora
Inc. Inc.
-------------- -----------
Business Description: Designs and Manufacturer of
manufactures packaging custom molded foam
including round food plastic products made
containers and plastic from expanded
packaging for snacks polystyrene Avg. ex
Valuation Ratios Average Hi/Lo
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Price/Primary LTM EPS 14.7x 18.5x 15.3x 15.5
Price/Projected 1994 EPS 14.5x 18.5x 14.8x 11.9
Price/Projected 1995 EPS 13.1x 14.6x 12.0x 9.8
Price/Fully Diluted LTM EPS 14.9x 19.3x 15.8x 15.9
Market Value/Book Value 1.7x 2.2x 2.3x 2.3
Enterprise Value/Revenues 0.9x 1.3x 1.1x 1.0
Enterprise Value/EBIT 9.8x 12.5x 10.6x 10.9
Enterprise Value/EBITDA 6.1x 6.5x 6.8x 6.8
----------------------------------------------------------------------------------------------------------------------------------
Market Data
Symbol/Exchange SRCO/NMS TUSC/NMS
Closing Price as of 11/25/94 $17.25 $17.25
52 Week Price Range $12.00-$17.50 $13.00-$20.00
Annual Current Dividend $0.46 $0.40
Indicated Yield 2.7% 2.3%
Shares Outstanding (000's) 11,063 Sep-94 6,138 Aug-94
Market Value (MV) $190,839 $105,882
Enterprise Value $265,610 $131,163
LTM Income Data
Last Twelve Months (LTM) 30-Sep-94 31-Aug-94
Fiscal Year Ended 31-Dec-93 31-Aug-94
Revenues $286,750 $120,085
Gross Profit 63,681 27,609
EBIT 27,025 10,506
Pretax Income 21,900 9,017
Net Income(2) 13,001 5,703
Depreciation & Amortisation 16,819 9,721
Depreciation as % of EBITDA 38% 48%
EBITDA 43,844 20,226
Earnings Per Share(1) $1.17 $0.93
1994 Projected EPS(1)(# analysts) $1.19(4) $0.93(2)
1995 Projected EPS(1)(# analysts) 1.32(4) 1.18(2)
1996 Projected EPS(1)(# analysis) 1.46(2) 1.35(o)
Fully-Diluted LTM Earnings Per Share $1.16 $0.89
LTM Balance Sheet Data
Total Assets $241,142 $94,225
Cash & Equivalents 1,362 3,671
Long-term Debt 69,257 25,284
Total Debt 76,133 28,952
Preferred Stock + Minority Interests 0 0
Common Shareholders' Equity 113,134 47,180 Avg. ex
Average Hi/Lo
Operating Ratios ----------------------------
Total Debt/Capitalization 40.2% 38.0% 28.1% 30.8%
EBIT/Ending Assets 11.2% n/a 14.1% 10.1%
Net Return on Ending Equity 11.5% 12.1% 15.6% 14.9%
Gross Margin 22.2% 27.3% 25.8% 26.4%
EBIT Margin 9.4% 10.4% 10.6% 10.5%
Pretax Margin 7.6% 8.9% 9.5% 9.1%
Net Margin 4.5% 5.6% 6.2% 6.0%
</TABLE>
<PAGE> 73
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Comparison of Selected Publicly Traded Plastic & Packaging Companies
(in thousands, except per share data)
<TABLE>
<CAPTION>
Intertape
A.E.P. Furon Polymer
Ropak Corp. Industries Company Group Inc.
----------- ---------- -------- ----------
<S> <C> <C> <C> <C>
Historical Income Data
Net Revenues
----------------------------
LTM $120,520 $170,645 $287,897 $111,652
1993 105,192 153,307 285,194 104,280
1992 94,803 142,621 300,107 94,229
1991 94,013 133,448 306,170 100,171
1990 91,187 137,409(a) 326,920 87,326
1989 89,801(c) 120,959 332,248 52,352(b)
Growth Rate 3.6% 5.2% (3.8%) 15.7%
Gross Profit
----------------------------
LTM $25,738 $51,985 $84,251 $25,291
1993 21,683 43,839 80,467 28,697
1992 21,778 36,137 86,175 24,938
1991 20,754(i) 33,575 81,389 23,440
1990 21,389 32,139(a) 95,152 20,594
1989 18,338(c) 26,714 96,385 9,301(b)
Growth Rate 3.6% 11.7% (4.5%) 27.7%
EBIT (excludes Other Income)
----------------------------
LTM $7,039(e) $18,805 $15,713 $16,948
1993 4,388(d) 14,277 14,009 15,616
1992 6,962(f) 6,660 14,393 12,950
1991 2,930(g)(i) 8,085 7,898(a) 12,077
1990 4,512(h) 8,166(a) 22,182 9,169
1989 4,617(c) 9,596 27,821 2,445(b)
Growth Rate 3.4% 6.1% (16.5%) 50.0%
Pretax Income
----------------------------
LTM $4,968(e) $17,485 $15,392 $14,600
1993 2,501(d)(j)(k) 11,906 12,968 13,260
1992 4,933(f)(l) 5,236 12,513 9,865
1991 (65)(g)(i)(m) 6,038 4,178(b) 7,070(c)
1990 1,116(h) 6,939(a) 15,402 3,596
1989 1,295(c) 8,868 17,385 (184)(b)
Growth Rate 32.3% 3.1% (7.6%) NM
Net Income
----------------------------
LTM $2,978(e) $11,275 $9,912 $9,018
1993 1,511(d)(j)(k) 7,334 8,170 7,919
1992 2,253(f)(l) 3,577 7,257 5,599(d)
1991 (58)(g)(i)(m) 3,505 (1,528)(b) 3,560(c)
1990 411(h) 3,737(a) 9,093 3,218
1989 745(c) 5,325 10,257 (773)(b)
Growth Rate 36.6% 6.1% (6.6%) NM
Primary EPS
----------------------------
LTM $0.68 $1.54 $1.10 $0.87
1993 0.34(d)(j)(k) 1.01 0.92 0.77
1992 0.54(f)(l) 0.49 0.84 0.58
1991 (0.02)(g)(i)(m) 0.73 (0.18)(b) 0.51
1990 0.11(h) 0.78(a) 1.17 0.51
1989 0.19(c) 1.15 1.52 (0.25)(b)
Growth Rate 31.7% (7.0%) (12.5%) NM
Liqui-Box Sealright Co Tuscarora
Corp. Park Ohio Inc. Inc.
----------- ---------- ------------ ----------
Historical Income Data
Net Revenues
----------------------------
LTM $144,887 $187,372 $286,750 $120,085
1993 130,081 147,168 275,665 $101,075
1992 116,117 119,839 263,778 95,809
1991 107,790 115,497 258,349 84,420
1990 113,130 125,152 205,861 85,458
1989 102,760 141,845 190,302 77,642
Growth Rate 5.1% 0.3% 10.4% 6.6%
Gross Profit
----------------------------
LTM $46,177 $31,718 $63,681 $27,609
1993 44,115 25,369 59,371 21,508
1992 38,050 17,027 65,302 22,442
1991 34,876 19,396 62,496 19,549
1990 34,504 19,735 53,315 20,344
1989 28,387 20,731 51,457 18,409
Growth Rate 10.3% 2.6% 5.0% 4.2%
EBIT (excludes Other Income)
----------------------------
LTM $23,288 $11,957 $27,025 $10,506
1993 21,948 7,515 24,621 6,823
1992 19,100 (5,310) 32,958(a) 9,419
1991 16,814 392 32,578 8,758
1990 17,645 1,267 28,258 9,853
1989 14,445 3,398 27,028 9,174
Growth Rate 9.6% NM (0.3%) (6.2%)
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Pretax Income
----------------------------
LTM $23,113 $10,123 $21,900 $9,017
1993 21,594 6,273 19,143 6,285
1992 18,848 (6,067)(a) 28,464(a) 8,289
1991 16,421 79(b) 27,545 6,856
1990 16,386 915 26,062 7,912
1989 14,111 2,743 24,357 7,479
Growth Rate 10.4% NM (3.9%) (3.0%)
Net Income
----------------------------
LTM $13,810 $9,959 $13,001 $5,703
1993 12,937 6,031 11,085 3,949
1992 11,250 (6,199)(a) 17,096(a) 4,819
1991 9,631 (49)(b) 15,921 4,230
1990 9,876 832 15,697 4,874
1989 8,651 2,524 14,339 4,478
Growth Rate 9.8% NM (4.2%) (2.6%)
Primary EPS
----------------------------
LTM $2.13 $1.30 $1.17 $0.93
1993 2.00 0.90 1.00 0.65
1992 1.73 (1.03)(a) 1.55(a) 0.82(a)
1991 1.48 (0.01)(b) 1.44 0.70(a)
1990 1.46(a) 0.14 1.42 0.81(a)
1989 1.23(a) 0.45 1.30 0.75(a)
Growth Rate 12.1% NM (4.3%) (2.7%)
</TABLE>
<PAGE> 74
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
COMPARISON OF SELECTED PUBLICLY TRADED PLASTIC & PACKAGING COMPANIES
(in thousands, except per share data)
<TABLE>
<CAPTION>
Intertape Sealright
Ropak A.E.P. Furon Polymer Liqui-Box Park Co Tuscarora
Corp. Industries Company Group Inc. Corp. Ohio Inc. Inc.
------ ---------- ------- ---------- --------- ------ --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EBITDA
------------------------------
LTM 14,551 (e) 26,041 28,132 24,409 30,853 17,002 43,844 20,226
1993 11,292 (d) 21,152 26,216 23,093 28,670 12,451 40,274 16,029
1992 13,285 (f) 12,878 26,547 19,896 26,083 (887)(a) 46,334 17,298
1991 9,173 (g)(i) 13,175 22,955 18,232 23,901 4,806 (b) 43,902 15,994
1990 10,414 (h) 12,268(a) 36,661 14,114 24,650 5,626 36,259 16,454
1989 10,256 (c) 12,912 43,961 5,247 (b) 19,689 7,359 34,488 14,638
Growth Rate 4.5% 10.9% (12.7%) 39.2% 8.4% NM 5.7% 2.3%
MARGIN ANALYSIS
Gross Profit Margin
------------------------------
LTM 21.4% 30.5% 29.3% 22.7% 31.9% 16.9% 22.2% 27.3%
1993 20.6% 28.6% 28.2% 27.5% 33.9% 17.2% 21.5% 21.3%
1992 23.0% 25.3% 28.7% 26.5% 32.8% 14.2% 24.8% 23.4%
1991 22.1% (i) 25.2% 26.6% 23.4% 32.4% 16.8% 24.2% 23.2%
1990 23.5% 23.4%(a) 29.1% 23.6% 30.5% 15.8% 25.9% 23.8%
1989 20.4% (c) 22.1% 29.0% 17.8% (b) 27.6% 14.6% 27.0% 23.7%
EBIT Margin
------------------------------
LTM 5.8% (e) 11.0% 5.5% 15.2% 16.1% 6.4% 9.4% 10.4%
1993 4.2% (d) 9.3% 4.9% 15.0% 16.9% 5.1% 8.9% 6.8%
1992 7.3% (f) 4.7% 4.8% 13.7% 16.4% (4.4%) 12.5%(a) 9.8%
1991 3.1% (g)(i) 6.1% 2.6% (a) 12.1% 15.6% 0.3% 12.6% 10.4%
1990 4.9% (h) 5.9%(a) 6.8% 10.5% 15.6% 1.0% 13.7% 11.5%
1989 5.1% (c) 7.9% 8.4% 4.7% (b) 14.1% 2.4% 14.2% 11.8%
Pretax Margin
------------------------------
LTM 4.1% (e) 10.2% 5.3% 13.1% 16.0% 5.4% 7.6% 8.9%
1993 2.4% (d)(j)(k) 7.8% 4.5% 12.7% 16.6% 4.3% 6.9% 6.2%
1992 5.2% (f)(l) 3.7% 4.2% 10.5% 16.2% (5.1%)(a) 10.8%(a) 8.7%
1991 (0.1%)(g)(i)(m) 4.5% 1.4%(b) 7.1% (c) 15.2% 0.1% (b) 10.7% 8.1%
1990 1.2% (h) 5.1%(a) 4.7% 4.1% 14.5% 0.7% 12.7% 9.3%
1989 1.4% (c) 7.3% 5.2% (0.4%)(b) 13.7% 1.9% 12.8% 9.6%
Net Margin
------------------------------
LTM 2.5% 6.6% 3.4% 8.1% 9.5% 5.3% 4.5% 5.6%
1993 1.4% (d)(j)(k) 4.8% 2.9% 7.6% 9.9% 4.1% 4.0% 3.9%
1992 2.4% (f)(l) 2.5% 2.4% 5.9% (d) 9.7% (5.2%)(a) 6.5%(a) 5.0%
1991 (0.1%)(g)(i)(m) 2.6% (0.5%)(b) 3.6% (c) 8.9% (0.0%)(b) 6.2% 5.0%
1990 0.5% (h) 2.7%(a) 2.8% 3.7% 8.7% 0.7% 7.6% 5.7%
1989 0.8% (c) 4.4% 3.1% (1.5%)(b) 8.4% 1.8% 7.5% 5.8%
EBITDA Margin
------------------------------
LTM 12.1% (e) 15.3% 9.8% 21.9% 21.3% 9.1% 15.3% 20.0%
1993 10.7% (d) 13.8% 9.2% 22.1% 22.0% 8.5% 14.6% 15.9%
1992 14.0% (f) 9.0% 8.8% 21.1% 22.5% (0.7%)(a) 17.6% 18.1%
1991 9.8% (g)(i) 9.9% 7.5% 18.2% 22.2% 4.2% (b) 17.0% 18.9%
1990 11.4% (h) 8.9%(a) 11.2% 16.2% 21.8% 4.5% 17.6% 19.3%
1989 11.4% (c) 10.7% 13.2% 10.0% (b) 19.2% 5.2% 18.1% 18.9%
</TABLE>
<PAGE> 75
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
COMPARISON OF SELECTED PUBLICLY TRADED PLASTIC & PACKAGING COMPANIES
(in thousands, except per share data)
<TABLE>
<CAPTION>
Intertape Sealright
Ropak A.E.P. Furon Polymer Liqui-Box Park Co Tuscarora
Corp. Industries Company Group Inc. Corp. Ohio Inc. Inc.
------- ---------- -------- ---------- --------- ------ --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
HISTORICAL BALANCE SHEET DATA
Total Assets
------------------------------
LTM $86,969 $108,704 $175,874 $141,619 $90,857 $122,133 $241,142 94,225
1993 77,180 88,992 175,224 124,474 86,072 97,644 214,266 79,969
1992 64,040 84,393 174,229 119,753 68,657 71,729 191,218 75,510
1991 65,889 74,983 171,543 113,939 63,512 62,610 159,555 63,775
1990 74,531 73,810 207,197 115,826 64,223 71,028 151,689 53,138
1989 71,815 65,573 236,660 117,793 64,161 74,463 102,816 46,777
Growth Rate (0.1%) 7.7% (7.5%) 1.4% 6.8% 5.7% 18.5% 15.3%
Common Shareholders' Equity
------------------------------
LTM $29,347 $58,502 $86,398 $76,835 $73,521 $42,281 $113,134 $47,180
1993 26,401 50,616 80,815 71,197 65,210 17,933 104,647 42,546
1992 23,962 43,734 75,247 67,498 55,972 8,795 98,429 39,280
1991 22,567 37,983 70,243 48,313 47,740 39,742 89,217 35,152
1990 23,611 35,619 97,412 36,480 42,130 49,888 77,213 31,451
1989 23,703 32,232 65,581 37,317 42,305 51,698 64,829 27,360
Growth Rate 2.3% 11.7% 1.6% 21.0% 12.2% (32.0%) 12.8% 11.7%
CAPITALIZATION
As of: 30-Sep-94 31-Jul-94 30-Jul-94 31-Dec-93
Short-term Debt $ 4,175 $ 135 $ 7,008 $ 8,066
======= ======= ======== =======
Long-term Debt $30,153 50.8% 20,900 26.3% 16,753 16.2% 24,041 24.9%
Preferred Stock & Minority Interests 0 0.0% 0 0.0% 0 0.0% 1,217 1.3%
Common Shareholders' Equity 29,257 49.2% 58,502 73.7% 86,398 83.8% 71,197 73.8%
------- ------ ------- ------ -------- ------ ------- ------
Total Capitalization $59,410 100.0% $79,402 100.0% $103,151 100.0% $96,455 100.0%
======= ====== ======= ====== ======== ====== ======= ======
Cash & Cash Equivalents $ 1,970 $ 3,723 $ 16,261 $ 147
======= ======= ======== =======
As of: 1-Oct-94 30-Sep-94 30-Sep-94 31-Aug-94
Short-term Debt $ 2,053 $ 1,981 $ 6,876 $ 3,668
======= ======= ======== =======
Long-term Debt $ 28 0.0% $24,903 37.1% $ 69,257 38.0% $25,284 34.9%
Preferred Stock & Minority Interests 0 0.0% 0 0.0% 0 0.0% 0 0.0%
Common Shareholders' Equity 73,521 100.0% 42,281 62.9% 113,134 62.0% 47,180 65.1%
------- ------ ------- ------ -------- ------ ------- ------
TOTAL CAPITALIZATION $73,549 100.0% $67,184 100.0% $182,391 100.0% $72,464 100.0%
======= ====== ======= ====== ======== ====== ======= ======
Cash & Cash Equivalents $ 7,174 $ 975 $ 1,362 $ 3,671
======= ======= ======== =======
</TABLE>
<PAGE> 76
General
(1) 1994 and 1995 projected Earnings Per Share information from First Call on-
line database as of 10-24-94, except Ropak Corp. from Research Note
published by Bridgecorp Securities on 4/4/1994
(2) Net Income is from continuing operations and before extraordinary items and
changes in accounting principles and after preferred dividends, minority
interest and equity income of associated companies.
Ropak Corp.
(a) Shares Outstanding calculated to exclude options
(b) Since an updated First Call result is not available, a company estimate has
been used
(c) 1989 Revenue Information as restated in 1991 10K to exclude businesses
subsequently sold
(d) 1993 EBIT includes $92,000 add back for license fee settlement ($62,744
after Effective Tax Rate of 31.8%, or $0.01 per share)
(e) LTM EBIT excludes $329,000 for premium refund on workers compensation
(f) 1992 EBIT includes $361,000 add back for license fee settlement and
$242,000 add back for litigation costs (total of $272,556 after Effective
Tax Rate of 54.8%, or $0.07 per share)
(g) 1991 EBIT includes $1,167,000 add back for litigation costs $758,550 after
tax, or $0.195 per share)
(h) 1990 EBIT includes $239,000 add back in litigation costs ($88,024 after
Effective Tax Rate of 63.2%, $0.02 per share)
(i) 1991 Gross Profit includes $2.1 million add back for loss due to write down
of inventory ($1.365 million after assumed Tax Rate of 35%, $0.35 per
share)
(j) 1993 Pre-tax Income excludes $2.5 million Gain on exchange of subordinated
note ($1.9 million after Effective Tax Rate, $0.43 per share)
(k) 1993 Pre-tax Income excludes $155,000 Gain on sale of stake in InVitro
International ($105,710 after Effective tax Rate of 31.8%, or $0.02 per
share)
(l) 1992 Pre-tax Income excludes $1.444 million Loss on sale of stake in
InVitro International ($659,910 after Effective Tax rate of 54.8%, or
$0.16 per share)
(m) 1991 Pre-tax Income excludes $1,903,000 Gain on sale of stake in InVitro
International ($0.49 per share)
A.E.P. Industries
(a) 1990 Pro-forma to include the acquired Princeton Packaging Corporation's
stretch film business for the whole year; pro-forma numbers for 1989 do not
exist.
Furon Company
(a) 1991 EBIT was dramatically lower owing to severe increases in operating
costs and pressure on margins.
(b) 1991 Pretax includes $23.65 million add back of restructuring charge and
$8.371 million add back of Unusual charge (total of $20.814 million after
Assumed Tax Rate of 35%, $2.47 per share)
Intertape Polymer Group Inc.
(a) In the absence of Shares Outstanding information in the 6K, the latest
weighted average number of shares has been used
(b) No proforma is available for an acquisition at the end of 1989 which is the
cause of the dramatic increase in 1990 figures
(c) Excludes loss on abandonment of project of $C533,000
(d) Excludes C$350,000 for settlement of a lawsuit
(e) Excludes loss on extinguishment of interest rate swap contract of C$566,000
Liqui-Box Corp.
(a) Pro-forma for 1991 3-for-1 stock split
Park Ohio
(a) Excludes business restructuring costs of $1.451 million (Not taxed due to
NOL, $0.25 per share)
(b) Excludes business restructuring costs of $3.952 million (Not taxed due to
NOL, $0.71 per share)
Sealright Co Inc.
(a) Excludes $1,586,000 provision for write down of plant facilities to net
realisable value ($952,556 after Effective Tax @ 39.9%, $0.10 per share)
Tuscarora Inc.
(a) Restated for stock split in 1993
<PAGE> 77
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
ANALYSIS OF ACQUISITIONS OF PUBLIC COMPANIES
PREMIUMS AND FORM OF CONSIDERATION PAID (a)
(dollars in millions)
<TABLE>
<CAPTION>
Premium (Period
Prior to Announcement) Consideration Trans-
Number ---------------------------- ---------------------------- Action
of Deals 1 Day 1 Week 4 Weeks Cash Common Other(B) Value
-------- ----- ------ ------- ----- ------ -------- -------
SUMMARY OF TRRANSACTIONS BY YEAR
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Total Transactions: 1994 YTD 100 36.3% 40.8% 46.3% 36.1% 58.0% 5.8% $ 331.6
Total Transactions: 1993 162 35.9% 38.5% 42.7% 36.2% 57.3% 6.5% 387.3
Total Transactions: 1992 128 40.2% 44.1% 52.0% 26.8% 66.1% 7.1% 194.6
--- ----- ----- ----- ----- ----- ----- -------
Total 390 37.4% 40.9% 46.7% 33.1% 60.4% 6.5% $ 309.8
=== ===== ===== ===== ===== ===== ===== =======
------------------------------------------------------------------------------------------------------------------------------------
SUMMARY OF TRANSACTIONS BY VALUE
Less than $5.0 million 27 1.7% 5.5% 18.2% 37.5% 57.5% 5.0% $ 2.7
Between $5.0 million and $20.0 million 72 36.6% 40.5% 40.4% 39.7% 54.0% 6.3% 11.5
Between $20.0 million and $100.0 million 131 42.8% 45.6% 52.2% 35.6% 60.1% 4.3% 53.6
Between $100.0 million and $200.0 million 64 35.8% 38.1% 46.1% 29.6% 63.9% 6.5% 143.4
Greater than $200.0 million 96 34.1% 38.8% 43.9% 25.8% 64.0% 10.2% 1,080.3
--- ----- ----- ----- ----- ----- ----- -------
Total 390 35.5% 39.0% 44.6% 33.1% 60.4% 6.5% $ 309.8
=== ===== ===== ===== ===== ===== ===== =======
------------------------------------------------------------------------------------------------------------------------------------
SUMMARY OF TRANSACTIONS BY GENERAL INDUSTRY
Financial 169 43.5% 47.7% 55.4% 27.2% 70.2% 2.6% $ 168.0
Manufacturing 97 28.5% 31.7% 34.2% 42.0% 51.2% 6.8% 273.9
Natural Resources 14 23.6% 29.5% 32.9% 28.4% 45.6% 26.0% 196.3
Services 86 38.3% 39.8% 45.9% 30.3% 60.0% 9.7% 604.7
Trade 24 26.8% 32.1% 34.8% 51.4% 38.2% 10.4% 462.1
--- ----- ----- ----- ----- ----- ----- -------
Total 390 36.9% 40.3% 45.9% 33.1% 60.4% 6.5% $ 309.8
=== ===== ===== ===== ===== ===== ===== =======
</TABLE>
----------------------
(a) Screening criteria: completed friendly mergers or acquisitions of public
companies where 100% of the target company was acquired in the transaction.
Averages are weighted by the number of transactions in each sort category.
(b) Includes options, warrants and preferred stock.
<PAGE> 78
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- --------------------------------------- --------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
10/21/94 10/21/94 Wert & Garvey Inc DiMark Inc Investment & Commodity Firms, Dealers,
Exchange
10/04/94 10/04/94 Malibu Grand Prix Corp Mountasia Entertainment Amusement and Recreation Services
10/03/94 10/03/94 Chomerics Inc (WR Grace & Co) Parker Hannifin Corp Electronic and Electrical Equipment
08/29/94 11/01/94 Brock Candy Co Brach Acquisition Co Food and Kindred Products
08/19/94 08/19/94 Sunland Computer Services Inc Dataflex Corp Business Services
08/18/94 09/29/94 Micro Palm Computers Inc WPI Group Inc Computer and Office Equipment
08/15/94 10/27/94 Sundowner Offshore Services Nabors Industries Inc Oil and Gas; Petroleum Refining
08/05/94 08/26/94 Hyload Inc Ruberoid PLC Rubber and Miscellaneous
Plastic Products
08/02/94 08/31/94 WestGas Gathering Inc WG Acquisition Inc Electric, Gas, and Water Distribution
07/27/94 09/21/94 IRT Corp Thermo Instrument Electronic and Electrical Equipment
Systems Inc
07/25/94 09/21/94 Nature Food Centers Inc General Nutrition Companies Retail Trade-Food Stores
07/15/94 07/15/94 Homart Development Co Sizeler Property Real Estate; Mortgage Bankers
Investors Inc and Brokers
07/14/94 09/19/94 Active Noise & Vibration Tech Noise Cancellation Tech Inc Measuring, Medical, Photo
Equipment; Clocks
07/14/94 10/19/94 Kendall International Inc Tyco International Ltd Measuring, Medical, Photo
Equipment; Clocks
07/14/94 09/26/94 Southern Hospitality Corp DavCo Restaurants Inc Retail Trade-Eating and Drinking Places
07/12/94 10/19/94 Diasonics Ultrasound Inc Elbit Ltd (Elron Measuring, Medical, Photo
Electronics) Equipment; Clocks
07/12/94 08/16/94 Katz Media Investor Group Advertising Services
07/05/94 10/21/94 SynOptics Communications Inc Wellfleet Communications Business Services
07/01/94 08/17/94 Lincoln Foodservice Products Welbilt Corp (new) Machinery
06/27/94 10/03/94 Golden West Homes Oakwood Homes Corp Wood Products, Furniture, and Fixtures
06/27/94 11/04.94 Kirschner Medical Corp Biomet Inc Measuring, Medical, Photo
Equipment; Clocks
06/23/94 08/29/94 Gates/FA Distributing Inc Arrow Electronics Inc Wholesale Trade-Durable Goods
06/22/94 11/10/94 RHNB Corp, Rock Hill, SC NationsBank Corp Commercial Banks, Bank Holding Companies
06/20/94 06/29/94 Kover Group Inc Med/Waste Inc Business Services
06/17/94 09/30/94 Health Equity Properties Inc Omega Healthcare Investment & Commodity Firms, Dealers
Investors Inc Exchange
06/13/94 09/16/94 Chiles Offshore Noble Drilling Corp Oil and Gas; Petroleum Refining
06/13/94 10/06/94 Hallmark Healthcare Corp Community Health Health Services
Systems Inc
06/13/94 09/08/94 Trans Sierra Communications Mikohn Gaming Corp Business Services
06/09/94 08/23/94 Sunward Technologies Inc Read-Rite Corp Electronic and Electrical Equipment
06/06/94 06/06/94 Imo Industries Inc T-Hydronics Inc Measuring, Medical, Photo
Equipment; Clocks
06/02/94 11/01/94 Charter FSB Bancorp Inc Sovereign Bancorp Savings and Loans, Mutual Savings Banks
06/01/94 09/01/94 Nichols Institute Corning Lab Services Inc Business Services
05/31/94 11/01/94 Home Federal Svgs Bk, Wash, DC First Union Corp, Savings and Loans, Mutual Savings Banks
Charlotte, NC
05/23/94 09/01/94 H & H Oil Tool Co Weatherford International Business Services
Inc
05/23/94 09/16/94 Medical Care America Inc Columbia Healthcare Corp Health Services
05/23/94 09/01/94 SuperMac Technology Inc Radius Inc Computer and Office Equipment
05/23/94 08/05/94 Wheatley TXT Corp Dresser Industries Inc Electric, Gas, and Water Distribution
05/19/94 09/20/94 ASK Group Inc Computer Associates Business Services
Intl Inc
05/13/94 09/01/94 MSA Realty Corp Simon Property Group Investment & Commodity Firms, Dealers,
Exchange
05/13/94 09/13/94 Serving Software Inc HBO & Co Prepackaged Software
05/11/94 10/13/94 Optical Radiation Corp Benson Eyecare Corp Measuring, Medical, Photo
Equipment; Clocks
05/10/94 08/19/94 PDA Engineering MacNeal-Schwendler Corp Business Services
05/06/94 09/20/94 Glendale Bancorporation Mellon Bank, Pittsburgh, PA Commercial Banks, Bank Holding Companies
05/06/94 05/06/94 RF Inc Butler National Corp Wholesale Trade-Durable Goods
05/04/94 06/23/94 Allied Clinical Laboratories National Health Health Services
Laboratories
05/03/94 05/03/94 Universal Land Title Inc. Engle Homes Inc Insurance
05/02/94 09/29/94 Statesman Group Inc Conseco Capital Insurance
Partners II LP
05/02/94 11/03/94 Syntex Corp Roche Holding AG Drugs
04/26/94 08/10/94 Montana Naturals Intl Inc Vitamin Specialties Corp Food and Kindred Products
04/26/94 05/27/94 RHI Entertainment Inc Hallmark Cards Inc Motion Picture Production
and Distribution
04/18/94 08/15/94 Total Energy Services Co Enterra Corp Machinery
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
10/21/94 11.7 0.0% 100.0% 0.0%
10/04/94 22.8 87.9% 12.1% 0.0%
10/03/94 40.0 100.0% 0.0% 0.0%
08/29/94 155.0 90.3% 0.0% 9.7% 105.1 116.2 150.0
08/19/94 4.8 0.0% 100.0% 0.0%
08/18/94 1.8 0.0% 100.0% 0.0%
08/15/94 83.9 0.0% 100.0% 0.0% 27.5 26.4 33.5
08/05/94 3.0 100.0% 0.0% 0.0%
08/02/94 87.0 100.0% 0.0% 0.0%
07/27/94 6.8 100.0% 0.0% 0.0%
07/25/94 61.2 100.0% 0.0% 0.0% 21.5 37.1 50.0
07/15/94 11.0 100.0% 0.0% 0.0%
07/14/94 2.7 7.4% 92.6% 0.0%
07/14/94 1,435.4 0.0% 100.0% (0.0%) 20.3 19.4 22.1
07/14/94 18.4 76.1% 0.0% 23.9%
07/12/94 69.9 100.0% 0.0% 0.0% 47.0 37.8 52.1
07/12/94 287.1 34.7% 0.0% 65.3%
07/05/94 1,170.7 0.0% 100.0% 0.0% 16.2 28.5 16.2
07/01/94 52.4 100.0% 0.0% 0.0% 17.7 17.7 17.7
06/27/94 15.5 0.0% 99.9% 0.1%
06/27/94 40.9 100.0% 0.0% 0.0% 79.2 79.2 87.0
06/23/94 141.8 0.0% 100.0% 0.0% 13.9 12.5 13.2
06/22/94 43.7 0.0% 99.9% 0.1% 29.3 45.9 50.4
06/20/94 0.4 0.0% 90.0% 10.0%
06/17/94 144.0 0.0% 100.0% 0.0% 1.2 (0.1) 1.2
06/13/94 200.2 0.0% 100.0% 0.0% 5.0 2.4 23.5
06/13/94 161.7 0.0% 43.2% 56.8% 75.7 60.6 111.6
06/13/94 3.0 0.0% 100.0% 0.0%
06/09/94 109.5 0.0% 100.0% 0.0% 36.3 32.9 58.4
06/06/94 3.0 100.0% 0.0% 0.0%
06/02/94 75.9 0.0% 100.0% 0.0% 48.4 54.4 64.5
06/01/94 322.2 0.0% 69.0% 31.0% 301.0 290.9 301.0
05/31/94 22.9 0.0% 99.9% 0.1% 86.9 113.3 141.7
05/23/94 27.6 0.0% 100.0% 0.0% 67.6 59.6 76.4
05/23/94 875.6 0.0% 100.0% 0.0% 55.7 49.8 66.6
05/23/94 80.5 0.0% 100.0% 0.0% 39.1 47.6 29.1
05/23/94 173.8 0.0% 100.0% 0.0% 25.1 25.1 32.1
05/19/94 328.4 100.0% 0.0% 0.0% 47.2 39.5 57.0
05/13/94 49.5 0.0% 100.0% 0.0% 45.2 36.5 31.2
05/13/94 46.5 0.0% 100.0% 0.0% 5.9 17.3 29.2
05/11/94 135.4 72.1% 27.9% 0.0% 35.6 33.7 35.6
05/10/94 61.0 0.0% 0.0% 100.0% 138.3 138.3 56.6
05/06/94 28.0 100.0% 0.0% 0.0% 31.3 50.0 50.0
05/06/94 3.5 0.0% 99.7% 0.3%
05/04/94 180.6 100.0% 0.0% 0.0% 24.6 68.6 72.0
05/03/94 2.3 100.0% 0.0% 0.0%
05/02/94 349.2 100.0% 0.0% 0.0% 5.2 24.5 41.9
05/02/94 5,307.2 100.0% 0.0% 0.0% 57.4 71.4 79.4
04/26/94 4.9 0.0% 99.4% 0.6%
04/26/94 365.8 100.0% 0.0% 0.0% 35.8 36.5 48.5
04/18/94 296.0 0.0% 77.0% 23.0%
</TABLE>
<PAGE> 79
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- ---------------------------------- -------------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
04/15/94 09/30/94 Suburban Bancorp, Palatine, IL Bank of Montreal Commercial Banks, Bank Holding Companies
04/11/94 08/10/94 Fischer & Porter Co Elsag Bailey Process Measuring, Medical, Photo Equipment;
Clocks
04/05/94 09/14/94 Kenfil Inc AmeriQuest Technologies Inc Wholesale Trade-Durable Goods
04/04/94 07/15/94 Hook-SupeRx Inc Revco DS Inc (Anac Holding) Miscellaneous Retail Trade
03/31/94 06/01/94 Central Point Software Inc Symantec Corp Prepackaged Software
03/31/94 11/11/94 Intramed Laboratories Inc Baxter International Inc Measuring, Medical, Photo Equipment;
Clocks
03/31/94 05/12/94 Software Toolworks Inc Pearson PLC Prepackaged Software
03/30/94 10/31/94 First Western Financial Corp AMFED Financial Inc Savings and Loans, Mutual Savings Banks
03/28/94 10/03/94 Fishkill National Corp Community Bancorp Inc NY Commercial Banks, Bank Holding Companies
03/25/94 09/27/94 United National Bancorp First Commonwealth Financial Commercial Banks, Bank Holding Companies
03/24/94 07/13/94 American Oil and Gas Co KN Energy Inc Oil and Gas; Petroleum Refining
03/21/94 10/03/94 Citizens First Bancorp Inc National Westminster Bancorp Commercial Banks, Bank Holding Companies
03/18/94 09/01/94 Momentum Corp Phillips & Jacobs Inc Wholesale Trade-Durable Goods
03/15/94 08/31/94 Aldus Corp Adobe Systems Inc Prepackaged Software
03/10/94 07/19/94 American Natural Energy Corp Alexander Energy Corp Oil and Gas; Petroleum Refining
03/10/94 05/18/94 Grumman Corp Northrop Corp Aerospace and Aircraft
03/07/94 09/30/94 West Newton Savings Bank Shawmut National Corp Savings and Loans, Mutual Savings Banks
03/04/94 10/01/94 Business Bancorp SJNB Financial Corp Commercial Banks, Bank Holding Companies
03/04/94 04/18/94 Home Nutritional Services Inc WR Grace & Co Health Services
03/02/94 09/30/94 Cohasset Svgs Bk, Cohasset, MA Shawmut National Corp Savings and Loans, Mutual Savings Banks
03/01/94 03/21/94 Gitano Group Inc Fruit of the Loom Inc Textile and Apparel Products
02/23/94 08/11/94 Turf Paradise Inc Hollywood Park Inc Amusement and Recreation Services
02/22/94 09/13/94 Crestmont Financial Corp Summit Bancorporation, NJ Savings and Loans, Mutual Savings Banks
02/22/94 05/19/94 Omni Films International Inc Iwerks Entertainment Inc Wood Products, Furniture, and Fixtures
02/21/94 07/01/94 Grand Valley Gas Co Associated Natural Gas Corp Electric, Gas, and Water Distribution
02/17/94 08/31/94 Pioneer Financial Corp Signet Banking Corp Savings and Loans, Mutual Savings Banks
02/15/94 05/31/94 Ramsay-HMO United HealthCare Corp Health Services
02/10/94 05/17/94 Interspec Inc Advanced Technology Labs Measuring, Medical, Photo Equipment;
Clocks
02/07/94 07/11/94 Medisys, Health Infusion, 1 Other T2 Medical Inc Health Services
02/02/94 10/03/94 Loan America Financial Barnett Banks Inc Real Estate; Mortgage Bankers and
Brokers
01/31/94 03/31/94 VMX Inc Octel Communications Corp Investment & Commodity Firms, Dealers,
Exchang
01/28/94 09/01/94 Continental Bank Corp NA BankAmerica Corp Commercial Banks, Bank Holding Companies
01/28/94 08/19/94 First Inter-Bancorp Inc First Fidelity Bancorporation Savings and Loans, Mutual Savings Banks
01/27/94 04/01/94 Community Savings Bank, MA Andover Bank, Andover, MA Savings and Loans, Mutual Savings Banks
01/24/94 05/27/94 Envirofil Inc USA Waste Services Inc Business Services
01/24/94 05/18/94 On the Border Cafes Inc Brinker International Inc Retail Trade-Eating and Drinking Places
01/20/94 08/17/94 Mr. Coffee Inc Health o meter Products Inc Electronic and Electrical Equipment
01/19/94 05/31/94 Complete Health Services Inc United HealthCare Corp Health Services
01/18/94 04/07/94 CBM Sage Technologies Inc Retail Trade-Home Furnishings
01/18/94 08/01/94 Frankford Corp Keystone Financial, Harrisburg Commercial Banks, Bank Holding Companies
01/17/94 08/01/94 BancFlorida Financial Corp First Union Corp, Charlotte, NC Credit Institutions
01/14/94 03/08/94 Critical Care America Inc Caremark International Inc Health Services
01/11/94 05/31/94 BMC Bankcorp Inc CBT Corp Commercial Banks, Bank Holding Companies
01/11/94 08/26/94 Cumberland Federal Bancorp Fifth Third Bancorp, Cincinnati Savings and Loans, Mutual Savings Banks
01/10/94 06/17/94 TakeCare Inc FHP International Corp Health Services
01/06/94 09/29/94 Blockbuster Entertainment Corp Viacom Inc (Natl Amusements) Motion Picture Production and
Distribution
01/05/94 03/28/94 McGaw Inc IVAX Corp Drugs
01/04/94 06/23/94 Mediplex Group Inc Sun Healthcare Group Inc Health Services
01/03/94 05/18/94 Alta Energy Corp Devon Energy Corp Oil and Gas; Petroleum Refining
12/29/93 05/02/94 Boston Restaurant Associates Capucino's Inc Retail Trade-Eating and Drinking Places
12/22/93 12/22/93 Automotive Industries Inc Acorn Venture Capital Corp Wholesale Trade-Durable Goods
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
04/15/94 254.1 0.0% 100.0% 0.0% 55.4 79.5 86.1
04/11/94 156.5 100.0% 0.0% 0.0% 181.2 189.6 177.1
04/05/94 9.0 0.0% 99.9% 0.1% (44.0) (25.3) (44.0)
04/04/94 586.8 48.9% 0.0% 51.1% 50.7 48.6 66.7
03/31/94 63.0 0.0% 99.2% 0.8%
03/31/94 9.7 0.0% 99.6% 0.4% 89.2 117.6 117.6
03/31/94 435.4 100.0% 0.0% 0.0% 47.5 28.3 55.3
03/30/94 61.2 51.0% 49.0% 0.0% 30.8 26.6 28.7
03/28/94 26.2 0.0% 100.0% 0.0%
03/25/94 26.0 0.0% 100.0% 0.0% 2.3 2.3 8.9
03/24/94 286.8 0.0% 100.0% 0.0% 4.0 4.0 5.2
03/21/94 486.1 100.0% 0.0% 0.0% 9.9 20.0 16.4
03/18/94 29.0 0.0% 100.0% 0.0%
03/15/94 433.0 0.0% 100.0% 0.0% 23.0 36.4 59.9
03/10/94 27.9 0.0% 99.9% 0.1% 33.3 47.8 36.0
03/10/94 2,104.0 100.0% 0.0% 0.0% 55.5 65.3 59.0
03/07/94 42.9 100.0% 0.0% 0.0% 35.1 47.1 96.1
03/04/94 9.6 44.8% 54.9% 0.3% 41.7 41.7 47.8
03/04/94 90.8 100.0% 0.0% 0.0% 79.4 90.3 65.3
03/02/94 16.1 100.0% 0.0% 0.0% 33.3 48.8 39.1
03/01/94 100.0 100.0% 0.0% 0.0% (100.0) (100.0) (100.0)
02/23/94 33.8 0.0% 100.0% 0.0% 36.8 33.3 44.4
02/22/94 86.2 0.0% 100.0% 0.0% 5.9 6.5 14.8
02/22/94 19.6 22.4% 77.4% 0.1% (37.0) (30.0) (33.7)
02/21/94 55.0 0.0% 100.0% 0.0% 19.9 24.1 33.7
02/17/94 55.6 0.0% 100.0% 0.0% 8.9 1.8 16.9
02/15/94 564.9 0.0% 100.0% 0.0% 39.8 39.8 55.5
02/10/94 41.9 0.0% 100.0% 0.0% 78.7 78.7 62.4
02/07/94 549.0 0.0% 100.0% 0.0%
02/02/94 60.1 100.0% 0.0% 0.0% 17.3 17.3 21.5
01/31/94 147.0 0.0% 100.0% 0.0% 32.5 33.5 45.6
01/28/94 2,162.0 38.8% 61.2% 0.0% 37.4 42.5 45.2
01/28/94 56.0 100.0% 0.0% 0.0% 19.5 24.1 30.8
01/27/94 3.5 0.0% 0.0% 100.0%
01/24/94 136.1 0.0% 100.0% 0.0% (3.3) (3.3) 5.5
01/24/94 33.0 0.0% 99.9% 0.1% 29.6 45.8 70.7
01/20/94 134.9 100.0% 0.0% 0.0% (100.0) (100.0) (100.0)
01/19/94 205.9 0.0% 100.0% 0.0%
01/18/94 4.1 68.3% 29.5% 2.2%
01/18/94 131.5 0.0% 100.0% 0.0% 35.5 35.5 40.0
01/17/94 108.5 0.0% 100.0% 0.0% 30.4 49.1 49.1
01/14/94 175.0 100.0% 0.0% 0.0%
01/11/94 55.9 0.0% 100.0% 0.0%
01/11/94 137.5 0.0% 100.0% 0.0% 31.0 34.1 40.3
01/10/94 1,033.0 35.0% 15.0% 50.0% 54.6 44.1 53.1
01/06/94 7,971.1 0.0% 100.0% 0.0% 22.7 17.1 26.3
01/05/94 428.5 0.0% 100.0% 0.0% 40.1 52.3 45.1
01/04/94 320.0 33.3% 66.7% 0.0% 14.1 23.1 20.8
01/03/94 67.5 2.1% 40.2% 57.7% (14.0) (16.4) (23.7)
12/29/93 7.3 0.0% 100.0% 0.0%
12/22/93 5.0 100.0% 0.0% 0.0%
</TABLE>
<PAGE> 80
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- --------------------------------------- --------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
12/21/93 04/04/94 Care Enterprises Inc Regency Health Services Inc Health Services
12/21/93 08/01/94 Mid-Atlantic Bankcorp Fulton Financial Corp Commercial Banks, Bank Holding Companies
12/17/93 07/01/94 VSB Bancorp Inc UJB Financial Corp Savings and Loans, Mutual Savings Banks
12/16/93 12/16/93 Stewart Foods Inc Modami Services Inc Food and Kindred Products
12/13/93 01/31/94 Nutmeg Industries Inc VF Corp Textile and Apparel Products
12/13/93 01/19/94 United Knitting Inc Dyersburg Corp Textile and Apparel Products
12/08/93 06/30/94 LSB Bancshares Inc of SC BB&T Financial Corp Commercial Banks, Bank Holding Companies
12/03/93 06/30/94 Farm & Home Financial Corp Roosevelt Financial Group Savings and Loans, Mutual Savings Banks
12/03/93 12/03/93 Miracle Recreation Equipment Investor Group Miscellaneous Manufacturing
12/02/93 02/01/94 Rexnord Corp BTR Dunlop Holdings Machinery
(BTR PLC)
12/02/93 04/19/94 Summit Health Ltd OrNda HealthCorp Health Services
11/30/93 08/08/94 Motor Coach Industries Intl Consorcio G Grupo Dina SA Transportation Equipment
11/24/93 08/01/94 Mid Maine Savings Bk. Auburn, ME Peoples Heritage Finl Grp Savings and Loans, Mutual Savings Banks
Inc
11/22/93 07/08/94 Lake Shore Bancorp Inc First Chicago Corp Commercial Banks, Bank Holding Companies
11/18/93 04/19/94 American Healthcare Management OrNda HealthCorp Health Services
11/18/93 06/27/94 Independence Bancorp, Perkasie CoreStates Financial Corp Commercial Banks, Bank Holding Companies
11/11/93 04/28/94 Prime Federal Bank FSB First Northern Savings Savings and Loans, Mutual Savings Banks
Bank SA
11/05/93 06/27/94 Gateway Financial Corp Shawmut National Corp Savings and Loans, Mutual Savings Banks
11/03/93 05/31/94 Federal Savings Bank MidConn Bank Savings and Loans, Mutual Savings Banks
11/02/93 05/02/94 EdgeMark Financial Corp Old Kent Financial Corp Commercial Banks, Bank Holding Companies
10/28/93 02/28/94 Terminal Data Corp BancTec Inc Electronic and Electrical Equipment
10/27/93 07/01/94 Washington Bancorp Inc Hubco Inc Savings and Loans, Mutual Savings Banks
10/26/93 04/11/94 Central Holding Co Standard Federal Bank Savings and Loans, Mutual Savings Banks
10/26/93 06/03/94 Suburban Bancshares Inc 1st United Bancorp Commercial Banks, Bank Holding Companies
10/25/93 03/29/94 Community Financial Systems First Midwest Financial Commercial Banks, Bank Holding Companies
Inc
10/25/93 03/31/94 Rational Verdix Corp Prepackaged Software
10/21/93 02/04/94 RehabClinics Inc NovaCare Inc Health Services
10/18/93 02/15/94 Artel Communications Corp Chipcom Corp Communications Equipment
10/18/93 03/02/94 Corporate Software Inc CS Acquisition Corp Wholesale Trade-Durable Goods
10/18/93 01/20/94 UniCare Financial Corp Wellpoint Health Networks Insurance
Inc
10/14/93 05/03/94 Candlewood Bank & Trust Co New Milford Bank & Trust Commercial Banks, Bank Holding Companies
Co
10/14/93 03/25/94 ESB Bancorp Inc PennFirst Bancorp Inc Commerical Banks, Bank Holding Companies
10/12/93 04/29/94 LGF Bancorp First of America Bank Savings and Loans, Mutual Savings Banks
Corp, MI
10/12/93 11/30/93 MECA Software Inc H&R Block Inc Prepackaged Software
10/07/93 06/10/94 Advanced Interventional Sys Spectranetics Corp Measuring, Medical, Photo Equipment;
Clocks
10/03/93 02/10/94 HCA-Hospital Corp of America Columbia Healthcare Health Services
Corp
10/01/93 03/01/94 KeyCorp, Albany, New York(OLD) Society Corp Commercial Banks, Bank Holding Companies
09/29/93 03/25/94 Boulevard Bancorp Inc First Bank System Inc Commercial Banks, Bank Holding Companies
09/28/93 04/22/94 Home Federal Bancorp of MO Roosevelt Financial Savings and Loans, Mutual Savings Banks
Group
09/27/93 11/17/93 Bytex Corp Network Systems Corp Communications Equipment
09/23/93 12/14/93 Preferred Health Care Ltd Value Health Inc Health Services
09/23/93 12/22/93 Telematics International Inc ECI Telecom Ltd Communications Equipment
09/21/93 05/27/94 Bank Worcester, Worcester, MA Bank of Boston Corp Commercial Banks, Bank Holding Companies
09/20/93 05/31/94 Valley Bancorp, Appleton, WI Marshall & Ilsley Corp Commercial Banks, Bank Holding Companies
09/16/93 04/22/94 GWC Corp United Water Resources Electric, Gas and Water Distribution
Inc
09/13/93 03/25/94 Commercial Bancorp of Colorado KeyCorp, Albany, Commercial Banks, Bank Holding Companies
New York(OLD)
09/13/93 11/04/93 Engraph Inc Sonoco Products Co Paper and Allied Products
09/13/93 06/23/94 Fortune Bancorp Inc AmSouth Bancorp, Savings and Loans, Mutual Savings Banks
Birmingham, AL
09/13/93 04/27/94 Republic Pictures Corp Spelling Entertainment Motion Picture Production and
Inc Distribution
09/13/93 10/11/93 Shared Financial Systems Inc Stratus Computer Inc Business Services
09/10/93 12/29/93 Geraghty & Miller Inc Heidemij Holding NV Business Services
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
12/21/93 120.0 0.0% 100.0% 0.0% 40.5 37.8 49
12/21/93 64.6 0.0% 100.0% 0.0%
12/17/93 71.7 0.0% 100.0% 0.0% 13.3 13.3 16
12/16/93 3.5 100.0% 0.0% 0.0%
12/13/93 325.5 100.0% 0.0% 0.0% 16.7 34.6 19
12/13/93 12.2 42.6% 41.0% 16.4%
12/08/93 122.8 0.0% 100.0% 0.0% 37.4 35.1 39
12/03/93 243.6 0.0% 100.0% 0.0% 37.1 53.2 44
12/03/93 29.0 100.0% 0.0% 0.0%
12/02/93 814.8 50.9% 0.0% 49.1% 23.3 25.0 20
12/02/93 350.8 50.9% 25.5% 23.6% (8.3) 13.8 22
11/30/93 334.6 0.0% 50.7% 49.3% 33.8 39.3 42
11/24/93 11.5 0.0% 100.0% 0.0% 21.5 23.7 33
11/22/93 307.3 0.0% 100.0% 0.0% 28.2 36.7 35
11/18/93 403.1 0.0% 59.3% 40.7% 31.3 39.2 45
11/18/93 463.0 0.0% 100.0% 0.0% 30.6 51.4 35
11/11/93 19.0 0.0% 100.0% 0.0% 2.4 2.4 2
11/05/93 152.0 0.0% 100.0% 0.0% 5.3 (5.7) 19
11/03/93 13.2 100.0% 0.0% 0.0% 14.8 14.8 24
11/02/93 62.0 0.0% 100.0% 0.0%
10/28/93 16.2 100.0% 0.0% 0.0% 22.7 28.6 28
10/27/93 40.0 49.0% 0.0% 51.0% 34.2 46.4 130
10/26/93 21.3 100.0% 0.0% 0.0% 175.0 266.7 238
10/26/93 6.7 0.0% 52.7% 47.3%
10/25/93 31.4 33.4% 0.0% 66.6%
10/25/93 56.0 0.0% 100.0% 0.0%
10/21/93 192.5 0.0% 100.0% 0.0% 8.6 10.0 10
10/18/93 39.0 0.0% 100.0% 0.0%
10/18/93 94.3 100.0% 0.0% 0.0% 33.3 36.4 34
10/18/93 145.9 100.0% 0.0% 0.0% 46.8 41.5 38
10/14/93 5.8 100.0% 0.0% 0.0% 101.6 101.6 112
10/14/93 24.3 100.0% 0.0% 0.0% 14.9 13.1 25
10/12/93 67.8 0.0% 100.0% 0.0% 27.9 30.1 42
10/12/93 30.8 100.0% 0.0% 0.0% 23.3 29.3 39
10/07/93 11.7 0.0% 99.7% 0.3% (45.9) (48.9) (54)
10/03/93 5,605.0 0.0% 100.0% 0.0% 39.6 46.9 54
10/01/93 3,923.9 0.0% 100.0% 0.0% 1.9 2.6 (0)
09/29/93 213.7 0.0% 100.0% 0.0% 22.8 25.6 49
09/28/93 67.0 24.9% 75.0% 0.1% 7.1 5.3 22
09/27/93 49.0 100.0% 0.0% 0.0% 70.0 55.4 51
09/23/93 386.7 0.0% 100.0% 0.0% 49.8 57.3 35
09/23/93 278.5 0.0% 100.0% 0.0% 25.7 21.0 37
09/21/93 226.9 100.0% 0.0% 0.0% 21.4 23.1 34
09/20/93 819.7 0.0% 100.0% 0.0% 10.7 19.0 (9)
09/16/93 193.8 4.6% 71.3% 24.1% 6.6 11.6 13
09/13/93 90.6 0.0% 100.0% 0.0% 30.3 29.6 26
09/13/93 296.0 100.0% 0.0% 0.0% 20.2 19.1 20
09/13/93 285.6 50.0% 50.0% 0.0% 27.0 21.4 31
09/13/93 93.6 100.0% 0.0% 0.0% 4.0 6
09/13/93 15.0 100.0% 0.0% 0.0%
09/10/93 69.8 0.0% 100.0% 0.0% (4.7) 1.1 17
</TABLE>
<PAGE> 81
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- ---------------------------------- -------------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
09/09/93 10/13/93 A&W Brands Inc Cadbury Schweppes PLC Food and Kindred Products
09/09/93 03/17/94 Chattahoochee Bancorp Inc Bank South Corp, Atlanta, GA Commercial Banks, Bank Holding Companies
09/09/93 03/30/94 Pacific Western Bancshares, CA Comerica Inc, Detroit, Michigan Commercial Banks, Bank Holding Companies
09/09/93 07/07/94 Paramount Communications Viacom Inc (Natl Amusements) Motion Picture Production and
Distribution
09/07/93 01/21/94 Baroid Corp Dresser Industries Inc Machinery
09/07/93 04/11/94 Hamptons Bancshares Inc Suffolk Bancorp Commercial Banks, Bank Holding Companies
09/07/93 11/10/93 Total Pharmaceutical Care Inc Abbey Healthcare Group Inc Health Services
09/03/93 03/07/94 KSB Financial Independent Bank Corp, Rockland Commercial Banks, Bank Holding Companies
09/01/93 12/13/93 ChipSoft Inc Intuit Prepackaged Software
08/26/93 02/28/94 First Fidelity Bancorp Inc, WV WesBanco Inc Commercial Banks, Bank Holding Companies
08/26/93 05/27/94 Peoples Bancorp of Worcester Shawmut National Corp Commercial Banks, Bank Holding Companies
08/24/93 10/15/93 Revco Scientific Inc General Signal Corp Machinery
08/24/93 06/14/94 West Mass Bankshares Inc Vermont Financial Services Savings and Loans, Mutual Savings Banks
08/20/93 06/06/94 Mid-South Bancorp Inc Union Planters Corp Commercial Banks, Bank Holding Companies
08/20/93 09/03/93 Premier Resources Ltd Northern Reef Exploration Ltd Oil and Gas; Petroleum Refining
08/19/93 02/11/94 Celutel Inc Century Telephone Enterprises Telecommunications
08/19/93 11/30/93 Fisher-Price Inc Mattel Inc Miscellaneous Manufacturing
08/17/93 02/04/94 Spinnaker Software Corp WordStar International Inc Prepackaged Software
08/17/93 02/01/94 United Postal Bancorp Mercantile Bancorp, St Louis, MO Savings and Loans, Mutual Savings Banks
08/16/93 02/08/94 Dycam Inc Styles on Video (New Image Ind) Measuring, Medical, Photo Equipment;
Clocks
08/16/93 02/11/93 Princeton Diagnostic Labs EDITEK Inc Health Services
08/13/93 12/02/93 Amoskeag Co (Dumaines Trust) Fieldcrest Cannon Inc Transportation and Shipping (except air)
08/09/93 12/10/93 Family Health Systems Inc Physician Corp of America Health Services
08/09/93 03/18/94 San Diego Financial Corp First Interstate Bancorp, CA Commercial Banks, Bank Holding Companies
08/05/93 01/28/94 First Savings Bank FSB, SC Southern National, Lumberton, NC Savings and Loans, Mutual Savings Banks
08/05/93 01/28/94 Mountaineer Bankshares of WV One Valley Bancorp of WV Commercial Banks, Bank Holding Companies
08/05/93 01/28/94 New Line Cinema Corp Turner Broadcasting System Inc Motion Picture Production and
Distribution
08/02/93 11/23/93 American Steel & Wire Corp Birmingham Steel Corp Metal and Metal Products
08/02/93 03/16/94 Constellation Bancorp CoreStates Financial Corp Commercial Banks, Bank Holding Companies
08/02/93 02/11/94 Greenery Rehabilitation Group Horizon Healthcare Corp Health Services
08/02/93 01/31/94 Greenwich Financial Corp First Fidelity Bancorporation Savings and Loans, Mutual Savings Banks
07/30/93 12/31/93 First AmFed Corp, Huntsville, AL Colonial BancGroup Inc Commercial Banks, Bank Holding Companies
07/29/93 07/29/93 Merken Corp Management Technologies Inc Prepackaged Software
07/28/93 11/18/93 Medco Containment Services Inc Merck & Co Wholesale Trade-Nondurable Goods
07/27/93 06/17/94 First Eastern Corp, PA PNC Bank Corp, Pittsburgh, PA Commercial Banks, Bank Holding Companies
07/27/93 01/17/94 First United Bank Group Inc Norwest Corp, Minneapolis, MN Commercial Banks, Bank Holding Companies
07/27/93 12/06/93 Heritage Bankcorp Inc Standard Federal Bank Commercial Banks, Bank Holding Companies
07/23/93 11/30/93 First Amarillo Bancorp Inc Boatmen's Bancshares Inc Commercial Banks, Bank Holding Companies
07/12/93 08/18/93 Voit Corp Usaha Tegas Sdn Bhd Miscellaneous Manufacturing
07/06/93 06/01/94 Cragin Financial Corp ABN-AMRO Holding NV Savings and Loans, Mutual Savings Banks
07/02/93 01/10/94 Elmwood Bancorp Inc Keystone Financial, Harrisburg Savings and Loans, Mutual Savings Banks
07/02/93 12/23/93 Tristate Bancorp, Cincinnati, OH Fifth Third Bancorp,
Cincinnati Commercial Banks, Bank Holding Companies
06/30/93 02/10/94 FloridaBank A Federal Savings AmSouth Bancorp, Birmingham, AL Savings and Loans, Mutual Savings Banks
06/30/93 10/01/93 Quantum Chemical Corp Hanson PLC Chemicals and Allied Products
06/28/93 08/05/93 Damon Corp Corning Inc Health Services
06/25/93 04/20/94 Pennsylvania & Southern Gas Co NUI Corp Electric, Gas, and Water Distribution
06/23/93 09/08/93 Costar Corp Corning Inc Measuring, Medical, Photo Equipment;
Clocks
06/18/93 09/23/93 Pioneer Bancorp Inc First Citizens Bancshares Inc Savings and Loans, Mutual Savings Banks
06/17/93 11/10/93 Superior Teletec Inc Alpine Group Inc Metal and Metal Products
06/16/93 10/22/93 Price Co Costco Wholesale Corp Retail Trade-General Merchandise and
Apparel
06/14/93 08/31/93 Johnson Products Co Inc IVAX Corp Soaps, Cosmetics and Personal Care
Products
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
09/09/93 334.0 100.0% 0.0% 0.0% 21.0 21.0 29.8
09/09/93 46.0 0.0% 100.0% 0.0% 27.8 24.3 31.4
09/09/93 133.0 0.0% 100.0% 0.0% 194.2 176.4 168.2
09/09/93 9,600.0 68.7% 20.4% 10.8% 94.5 86.9 99.1
09/07/93 842.2 0.0% 100.0% 0.0% 19.3 21.3 25.5
09/07/93 13.1 23.6% 76.4% 0.0% 58.5 58.5 98.1
09/07/93 185.6 82.6% 17.4% (0.0%) 73.6 67.3 87.8
09/03/93 1.0 0.0% 100.0% 0.0%
09/01/93 226.6 0.0% 100.0% 0.0% (5.5) (3.9) 41.2
08/26/93 75.4 0.0% 100.0% 0.0% 30.2 33.0 57.9
08/26/93 181.6 0.0% 100.0% 0.0% 66.7 70.7 79.*
08/24/93 85.0 0.0% 100.0% 0.0%
08/24/93 24.1 0.0% 99.8% 0.2% 61.5 61.5 82.*
08/20/93 23.0 0.0% 100.0% 0.0%
08/20/93 3.8 92.1% 0.0% 7.9%
08/19/93 146.8 35.0% 36.6% 28.4%
08/19/93 1,145.4 0.0% 87.4% 12.6% 36.8 35.4 43.*
08/17/93 28.3 0.0% 82.4% 17.6% 21.6 21.6 21.6
08/17/93 180.0 0.0% 100.0% 0.0% 29.0 29.0 33.*
08/16/93 6.5 0.0% 99.8% 0.2%
08/16/93 4.1 0.0% 100.0% 0.0% 36.5 36.5 36.5
08/13/93 137.6 100.0% 0.0% 0.0% 31.1 39.1 46.*
08/09/93 44.0 100.0% 0.0% 0.0%
08/09/93 362.3 0.0% 100.0% 0.0%
08/05/93 179.1 0.0% 100.0% 0.0% 70.0 96.8 96.*
08/05/93 129.5 0.0% 100.0% 0.0% 25.7 27.5 27.*
08/05/93 486.6 0.0% 73.2% 26.8% 54.9 53.6 66.*
08/02/93 130.6 6.7% 35.0% 58.2% 36.4 44.7 44.*
08/02/93 291.2 0.0% 100.0% 0.0% 3.2 4.4 25.*
08/02/93 88.0 0.0% 37.9% 62.1% 70.9 62.4 70.*
08/02/93 43.4 100.0% 0.0% 0.0% 42.2 42.2 45.*
07/30/93 44.3 0.0% 99.9% 0.1% 9.0 6.9 3.*
07/29/93 0.4 0.0% 90.0% 10.0%
07/28/93 6,225.7 40.0% 60.0% (0.0%) 31.1 36.2 21.*
07/27/93 336.0 100.0% 0.0% 0.0% 35.0 47.9 63.*
07/27/93 413.8 0.0% 100.0% 0.0% 20.0 20.0 27.*
07/27/93 110.7 100.0% 0.0% 0.0% 56.5 60.2 78.*
07/23/93 167.4 0.0% 100.0% 0.0% 38.0 32.8 47.*
07/12/93 13.9 100.0% 0.0% 0.0% 56.5 56.5 38.*
07/06/93 501.6 100.0% 0.0% 0.0% 51.2 55.9 79.*
07/02/93 34.1 0.0% 99.9% 0.1% 102.7 122.0 111.*
07/02/93 68.4 0.0% 100.0% 0.0% 29.1 29.1 37.*
06/30/93 27.3 0.0% 100.0% 0.0% 57.2 69.6 19.*
06/30/93 3,219.7 0.0% 22.4% 77.6% 60.0 55.3 39.*
06/28/93 565.3 66.9% 0.0% 33.1% 65.8 82.2 89.*
06/25/93 16.7 0.0% 100.0% 0.0%
06/23/93 167.4 0.0% 100.0% 0.0% 37.2 35.3 42.*
06/18/93 3.8 100.0% 0.0% 0.0% 45.3 45.3 58.*
06/17/93 57.8 29.4% 70.5% 0.1% 41.3 41.3 45.*
06/16/93 1,666.2 0.0% 100.0% 0.0% 12.3 23.8 21.*
06/14/93 62.9 0.0% 99.9% 0.1% 32.9 30.3 35.*
</TABLE>
<PAGE> 82
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- ---------------------------------- -------------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
06/14/93 10/01/93 Vari-Care Inc Living Centers of America Inc Health Services
06/10/93 10/01/93 Affiliated Publications Inc New York Times Co Printing, Publishing, and Allied
Services
06/10/93 09/01/93 Galen Health Care Inc Columbia Hospital Corp Health Services
06/07/93 12/29/93 First Bancorp Indiana Inc Huntington Bancshares, Columbus Savings and Loans, Mutual Savings Bank
06/02/93 02/04/94 Firestone Bank, Lisbon, Ohio Citizens Bancshares Inc Commercial Banks, Bank Holding Companies
06/02/93 04/05/94 International Holding Capital CB Bancshares Inc, Honolulu, HI Savings and Loans, Mutual Savings Banks
06/01/93 10/13/93 OCOM Corp International CableTel Inc Telecommunications
06/01/93 12/27/93 Railroadmen's Federal S&L Assn Huntington Bancshares, Columbus Savings and Loans, Mutual Savings Banks
05/25/93 11/15/93 AMAX Inc Cyprus Minerals Co Metal and Metal Products
05/25/93 12/10/93 Cal Rep Bancorp Inc First Interstate Bancorp, CA Commercial Banks, Bank Holding Companies
05/21/93 08/11/93 Discount Corp of New York Zions First Natl Bk, Salt Lake Investment & Commodity Firms, Dealers,
Exchange
05/19/93 11/19/93 First Natl Finl, Albuquerque, NM First Security Corp, Utah Commercial Banks, Bank Holding Companies
05/18/93 12/31/93 Secor Bank FSB, Birmingham, AL First AL Bancshares, Birmingham Savings and Loans, Mutual Savings Banks
03/14/93 09/15/93 LDDS Communications Ins Resurgens Communications Group Telecommunications
05/13/93 09/20/93 Atek Metals Center Inc Rolled Alloys Inc Wholesale Trade-Durable Goods
05/13/93 08/31/93 HMO America Inc United HealthCare Corp Health Services
05/11/93 01/03/94 Wisconsin Southern Gas Co Wisconsin Energy Corp Electric, Gas, and Water Distribution
05/10/93 07/30/93 Lifetime Corp Olsten Corp Health Services
05/07/93 08/27/93 HDR Power Systems Inc Solidstate Controls Inc Electronic and Electrical Equipment
05/07/93 12/18/93 InterFirst Bankcorp Inc Standard Federal Bank Savings and Loans, Mutual Savings Banks
05/05/93 12/30/93 New South Bancorp First Tennessee National Corp Commercial Banks, Bank Holding Companies
05/04/93 01/21/93 United Federal Bancorp PNC Bank Corp, Pittsburgh, PA Savings and Loans, Mutual Savings Banks
04/29/93 06/02/93 Industrial Training Sys Corp Westcott Communications Inc Motion Picture Production and
Distribution
04/29/93 02/01/94 Regency Bancshares Inc Southern National, Lumberton, NC Savings and Loans, Mutual Savings Banks
04/28/93 12/15/93 BMR Financial Group SouthTrust Corp Commercial Banks, Bank Holding Companies
04/23/93 12/09/93 Mid-State Fed S&L Assn, Ocala AmSouth Bancorp, Birmingham, AL Savings and Loans, Mutual Savings Banks
04/22/93 10/29/93 Ameriscribe Corp Pitney Bowes Inc Printing, Publishing, and Allied
Services
04/20/93 07/01/93 Hall-Mark Electronics Corp Avnet Inc Wholesale Trade-Durable Goods
04/14/93 12/30/93 Peoples Westchester Savings Bk First Fidelity Bancorporation Savings and Loans, Mutual Savings Banks
04/13/93 10/14/93 Boston Five Bancorp Citizens Financial Group Inc Savings and Loans, Mutual Savings Banks
04/07/93 02/24/94 North American National Corp Liberty Corp Insurance
04/01/93 07/01/93 Systems Center Inc Sterling Software Inc Business Services
03/30/93 09/01/93 Commonwealth Bancshares Corp Meridian Bancorp Inc Commercial Banks, Bank Holding Companies
03/25/93 07/06/93 Trans Kentucky Bancorp Trans Financial Bancorp Inc Commercial Banks, Bank Holding Companies
03/19/93 10/18/93 First Fed Svgs Bank of NW FL Central Bancshares of South, AL Savings and Loans, Mutual Savings Banks
03/19/93 10/01/93 Royal Bank Group Inc Citizens Banking Corp, Flint, MI Commercial Banks, Bank Holding Companies
03/15/93 12/13/93 FirstSouth Bancorp Inc BT Financial Corp Savings and Loans, Mutual Savings Banks
03/12/93 11/10/93 Athlone Industries Inc Allegheny Ludlum Corp Metal and Metal Products
03/11/93 08/02/93 Malrite Communications Group Shamrock Broadcasting Inc Radio and Television Broadcasting
Stations
03/10/93 08/06/93 Gynex Pharmaceuticals Inc Bio-Technology General Corp Drugs
03/08/93 07/30/93 Perception Technology Corp Brite Voice Systems Inc Computer and Office Equipment
03/04/93 05/26/93 Boston Digital Corp Charterhouse Group Intl Inc Machinery
03/02/93 03/01/93 Medical Innovations Inc Ballard Medical Products Health Services
03/01/93 06/25/93 Datatronix Financial Services FIserv Inc Business Services
02/23/93 08/11/93 Village Financial Services Ltd First Fidelity Bancorporation Savings and Loans, Mutual Savings Banks
02/22/93 08/04/93 International Broadcasting Century Park Pictures Corp Amusement and Recreation Services
02/19/93 08/06/93 Pioneer Fed BanCorp Inc First Hawaiian Inc Savings and Loans, Mutual Savings Banks
02/18/93 06/02/93 NERCO Inc Kennecott Corp(RTZ Corp PLC) Mining
02/16/93 06/30/93 Equus Investments Inc Equus II Inc Investment & Commodity Firms, Dealers,
Exchange
02/08/93 07/08/93 Goldtex Inc Tomen America Inc(Tomen Corp) Textile and Apparel Products
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
06/14/93 70.9 25.2% 35.3% 39.5% 39.1 33.3 18.5
06/10/93 1,092.5 0.0% 100.0% 0.0% 11.1 13.2 23.7
06/10/93 4,187.7 0.0% 76.1% 23.9% 42.6 42.6 43.9
06/07/93 48.6 38.5% 61.5% 0.0% 60.6 85.1 97.2
06/02/93 7.6 0.0% 99.7% 0.3%
06/02/93 50.9 45.0% 55.0% (0.0%) 70.4 70.4 72.5
06/01/93 77.6 0.0% 100.0% 0.0% (2.1) 22.4
06/01/93 82.9 0.0% 100.0% 0.0% 44.0 50.5 57.7
05/25/93 2,657.0 0.0% 46.1% 53.9% (25.9) (22.2) (17.6)
05/25/93 68.0 0.0% 100.0% 0.0%
05/21/93 65.3 100.0% 0.0% 0.0% 28.0 23.1 16.4
05/19/93 201.1 0.0% 100.0% 0.0%
05/18/93 102.5 0.0% 100.0% 0.0% 52.7 61.0 77.1
05/14/93 1,961.3 0.0% 100.0% 0.0% 1.8 (0.2) (4.4)
05/13/93 18.8 100.0% 0.0% 0.0% 56.9 56.9 50.3
05/13/93 372.2 0.0% 100.0% 0.0% 33.9 32.1 88.7
05/11/93 45.1 0.0% 99.9% 0.1% 13.7 19.8 13.7
05/10/93 607.0 0.0% 51.6% 48.4% 85.5 92.4 119.8
05/07/93 6.5 100.0% 0.0% 0.0% 62.5 52.9 44.4
05/07/93 32.5 100.0% 0.0% 0.0% 14.1 9.7 5.6
05/05/93 6.3 0.0% 100.0% 0.0%
05/04/93 154.7 100.0% 0.0% 0.0% 46.1 72.2 53.8
04/29/93 3.2 100.0% 0.0% 0.0%
04/29/93 47.4 0.0% 100.0% 0.0% 65.8 52.0 52.0
04/28/93 16.0 100.0% 0.0% 0.0% 26.0 26.0 57.5
04/23/93 91.8 29.8% 70.2% 0.0% 36.2 42.9 55.7
04/22/93 87.2 0.0% 100.0% 0.0% 45.5 47.4 27.7
04/20/93 488.9 41.8% 28.9% 29.3% 36.7 47.1 36.7
04/14/93 225.3 53.5% 46.5% 0.0% 79.2 81.2 88.3
04/13/93 92.5 100.0% 0.0% 0.0% 38.7 44.4 48.6
04/07/93 52.6 100.0% 0.0% 0.0% 31.1 40.5 37.2
04/01/93 169.7 0.0% 100.0% 0.0% 36.1 39.8 36.1
03/30/93 358.5 0.0% 100.0% 0.0% 39.4 37.3 37.3
03/25/93 18.5 100.0% 0.0% 0.0%
03/19/93 14.4 100.0% 0.0% 0.0%
03/19/93 22.5 15.1% 84.9% 0.0%
03/15/93 16.0 42.5% 57.8% (0.3%)
03/12/93 105.6 0.0% 100.0% 0.0% 22.8 22.8 16.7
03/11/93 310.0 0.0% 100.0% 0.0%
03/10/93 58.8 0.0% 100.0% 0.0% 30.1 27.3 27.3
03/08/93 15.9 0.0% 100.0% 0.0% 72.7 90.0 81.0
03/04/93 10.4 100.0% 0.0% 0.0% 66.2 66.2 36.0
03/02/93 12.5 100.0% 0.0% 0.0% 6.9 12.9 6.9
03/01/93 11.9 0.0% 99.7% 0.3%
02/23/93 66.0 60.0% 40.0% 0.0% 66.8 77.2 58.6
02/22/93 10.0 100.0% 0.0% 0.0%
02/19/93 87.4 100.0% 0.0% 0.0% 37.4 33.3 33.3
02/18/93 1,161.9 40.4% 0.0% 59.6% (10.3) 1.1 (4.0)
02/16/93 10.6 0.0% 100.0% 0.0% (11.1) (14.9) (20.0)
02/08/93 15.7 100.0% 0.0% 0.0% 42.1 42.1 42.1
XX/XX/XX 45.1 100.0% 0.0% 0.0% 42.2 45.9 63.1
</TABLE>
<PAGE> 83
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- ---------------------------------- -------------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
02/02/93 08/02/93 Dahlberg Inc Bausch & Lomb Inc Measuring, Medical, Photo Equipment;
Clocks
02/02/93 06/30/93 Express Cash Intl Corp Cash America International Inc Miscellaneous Retail Trade
01/29/93 08/11/93 National Community Banks Inc The Bank of New York Co Inc Commerical Banks, Bank Holding Companies
01/18/93 03/31/93 Alden Press Co APC Holding Inc Printing, Publishing, and Allied
Services
01/14/93 07/30/93 Dakota Bancorp Inc South Dakota Financial Bancorp Commercial Banks, Bank Holding Companies
01/05/93 11/18/93 Belding Heminway Co Inc Noel Group Inc Textile and Apparel Products
01/04/93 05/24/94 National Medical Waste Inc BioMedical Waste Systems Inc Sanitary Services
12/24/92 10/15/93 Autotrol Corp Osmonics Inc Measuring, Medical, Photo Equipment;
Clocks
12/23/92 12/17/93 First Financial Associates BANC ONE Corp Commercial Banks, Bank Holding Companies
12/22/92 11/19/93 Gateway Fed Corp, OH PNC Bank Corp, Pittsburgh, PA Savings and Loans, Mutual Savings Banks
12/21/92 05/14/93 CFS Financial Corp Crestar Financial Corp Savings and Loans, Mutual Savings Banks
12/18/92 05/04/93 Mass Microsystems Inc Ramtek Corp Computer and Office Equipment
12/18/92 04/16/93 Van Dorn Co Crown Cork & Seal Co Metal and Metal Products
12/15/92 06/03/93 Immunex Corp American Cyanamid Co Drugs
12/10/92 03/05/93 Clinical Homecare Ltd Curaflex Health Services Inc Wholesale Trade-Durable Goods
12/04/92 03/26/93 Colonial Cos Inc UNUM Corp Insurance
12/02/92 03/19/93 Heekin Can Inc Ball Corp Metal and Metal Products
12/01/92 02/25/93 Inforum Inc MEDSTAT Systems Inc Business Services
11/30/92 10/06/93 Centennial Savings Bank FSB Aspen Bancshares Inc Savings and Loans, Mutual Savings Banks
11/25/92 06/01/93 Ben Franklin National Bank West One Bancorp Commercial Banks, Bank Holding Companies
11/25/92 03/03/93 Geodyne Resources Inc Samson Investments Co Oil and Gas; Petroleum Refining
11/24/92 08/26/93 Decom Systems Inc CCI Coded Communications Inc Communications Equipment
11/23/92 04/06/93 Central Freight Lines Inc Roadway Services Inc Transportation and Shipping (except air)
11/20/92 07/05/94 Arcata Corp Quebecor Printing Inc Printing, Publishing, and Allied
Services
11/20/92 03/31/93 Northern Indiana Fuel & Light NIPSCO Industries Inc Electric, Gas, and Water Distribution
11/20/92 08/10/93 Preston Corp Yellow Freight System Inc Transportation and Shipping (except air)
11/17/92 12/31/92 Arkla Exploration Co Seagull Energy Corp Oil and Gas; Petroleum Refining
11/17/92 03/24/93 EquiVest Inc Medical Resource Cos of Amer Investment & Commodity Firms, Dealers,
Exchang
11/17/92 08/31/93 Franklin First Financial Corp ONBANCorp Inc Savings and Loans, Mutual Savings Banks
11/17/92 04/21/93 Republic Capital Group Inc TCF Financial Corp Savings and Loans, Mutual Savings Banks
11/16/92 06/11/93 Western Financial Corp Metropolitan Financial Corp Savings and Loans, Mutual Savings Banks
11/12/92 06/28/93 CB&T Financial, Fairmont, WV Huntington Bancshares, Columbus Commercial Banks, Bank Holding Companies
11/10/92 07/14/93 Naylor Industries Inc Insituform Technologies Inc Construction Firms
11/09/92 06/18/93 Peoples Bancorp Inc Valley National Bancorp Commercial Banks, Bank Holding Companies
10/27/92 08/24/93 Home Theater Products Inc H&S Treat & Release Inc Electronic and Electrical Equipment
10/23/92 03/15/93 Flagler Bank Corp SunTrust Banks, Inc. Atlanta, GA Commercial Banks, Bank Holding Companies
10/22/92 06/30/93 Home Fed Svgs Bk, Fort Collins KeyCorp, Albany, New York (OLD) Savings and Loans, Mutual Savings Banks
10/20/92 03/12/93 First Fed Svgs Bk, Salt Lake, UT Washington Federal Savings Savings and Loans, Mutual Savings Banks
10/16/92 03/05/93 CF&I Steel Corp Oregon Steel Mills Inc Metal and Metal Products
10/16/92 11/10/93 Mark Correctional Systems Inc Showcase Cosmetics Inc Metal and Metal Products
10/06/92 02/18/93 Applied Biosystems Inc Perkin-Elmer Corp Measuring, Medical, Photo Equipment;
Clocks
10/02/92 10/26/93 Peoples Holding Co Inc Central Bancshares of South, AL Commercial Banks, Bank Holding Companies
10/01/92 01/31/93 First United Bancorp Inc, AL SunTrust Banks Inc, Atlanta, GA Commercial Banks, Bank Holding Companies
09/30/92 02/15/93 Chuska Resources Corp Harken Energy Corp Oil and Gas; Petroleum Refining
09/28/92 03/10/93 Waste Processor Industries Inc American Ecology Corp Sanitary Services
09/24/92 04/01/93 Montclair Bancorp Inc Collective Bancorp Commercial Banks, Bank Holding Companies
09/23/92 03/08/93 Unibancorp Inc. Chicago, IL GAB Bancorp Commercial Banks, Bank Holding Companies
09/21/92 03/01/93 Dominion Bankshares, Roanoke, VA First Union Corp, Charlotte, NC Commercial Banks, Bank Holding Companies
09/17/92 10/30/92 CONSTAR International Inc Crown Cork & Seal Co Rubber and Miscellaneous Plastic
Products
09/17/92 12/23/92 Trans-National leasing Inc Associates Corp of N America Repair Services
09/09/92 07/13/93 Multibank Financial Corp Bank of Boston Corp Commercial Banks, Bank Holding Companies
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
02/02/93 139.0 100.0% 0.0% 0.0% 44.8 42.4 37.7
02/02/93 12.8 49.2% 0.0% 50.8% 31.4 26.9 93.7
01/29/93 591.6 0.0% 100.0% 0.0%
01/18/93 151.0 73.5% 0.0% 26.5% 13.2 20.0 15.4
01/14/93 20.4 100.0% 0.0% 0.0% 37.6 27.6 27.6
01/05/93 59.0 100.0% 0.0% 0.0% 5.2 8.5 8.5
01/04/93 5.8 0.0% 100.0% 0.0% (64.0) (64.0) (64.0)
12/24/92 44.4 0.0% 100.0% 0.0% (7.1) (0.8) 17.0
12/23/92 76.1 0.0% 100.0% 0.0%
12/22/92 59.8 100.0% 0.0% 0.0% 111.0 94.3 112.9
12/21/92 60.6 10.7% 89.3% 0.0% 267.8 259.6 478.0
12/18/92 4.2 0.0% 99.0% 1.0% 12.8 7.2 (6.8)
12/18/92 176.5 20.3% 79.7% 0.0% 95.3 95.3 100.0
12/15/92 736.3 43.5% 56.5% (0.0%) 7.8 8.7 (3.5)
12/10/92 25.7 0.0% 100.0% 0.0% 61.3 29.0 7.5
12/04/92 576.7 0.0% 100.0% 0.0% 32.3 37.1 41.0
12/02/92 88.3 0.0% 100.0% 0.0% 2.9 3.3 35.0
12/01/92 103.4 0.0% 100.0% 0.0% 16.2 19.7 25.3
11/30/92 17.4 100.0% 0.0% 0.0%
11/25/92 5.1 0.0% 100.0% 0.0%
11/25/92 20.3 9.9% 0.0% 90.1% 39.4 50.2 62.7
11/24/92 1.5 0.0% 98.3% 1.7%
11/23/92 101.6 100.0% 0.0% 0.0%
11/20/92 192.0 100.0% 0.0% 0.0%
11/20/92 29.5 0.0% 100.0% 0.0%
11/20/92 108.8 21.9% 0.0% 78.1% (37.7) (40.0) (23.3)
11/17/92 397.0 100.0% 0.0% 0.0%
11/17/92 7.4 0.0% 100.0% 0.0% 60.0 50.0 65.5
11/17/92 173.7 0.0% 100.0% 0.0% 65.0 72.2 88.6
11/17/92 68.8 0.0% 100.0% 0.0% 67.2 61.8 69.0
11/16/92 21.5 23.7% 76.3% 0.0% 53.8 66.7 122.2
11/12/92 131.2 0.0% 100.0% 0.0% 27.5 30.8 32.5
11/10/92 23.0 100.0% 0.0% 0.0% 11.4 32.9 47.1
11/09/92 10.7 0.0% 100.0% 0.0%
10/27/92 9.7 0.0% 99.7% 0.3%
10/23/92 50.3 0.0% 100.0% 0.0% 66.3 64.6 71.7
10/22/92 19.6 0.0% 100.0% 0.0% 61.8 63.7 69.5
10/20/92 35.7 100.0% 0.0% 0.0% 15.3 9.7 11.5
10/16/92 109.3 5.7% 15.6% 78.7%
10/16/92 12.6 0.0% 99.6% 0.4%
10/06/92 295.8 0.0% 100.0% 0.0% 20.1 38.4 38.4
10/02/92 5.0 100.0% 0.0% 0.0%
10/01/92 48.4 0.0% 100.0% 0.0%
09/30/92 27.6 0.0% 99.9% 0.1%
09/28/92 6.4 45.0% 55.0% 0.0% 20.0 (14.3)
09/24/92 61.7 100.0% 0.0% 0.0% 24.1 24.1 27.4
09/23/92 10.6 0.0% 99.8% 0.2%
09/21/92 934.3 0.0% 96.9% 3.1% 34.6 67.9 76.3
09/17/92 528.9 100.0% 0.0% 0.0% 33.3 39.0 46.9
09/17/92 6.1 100.0% 0.0% 0.0% 183.3 183.3 183.3
09/09/92 203.7 0.0% 100.0% 0.0% 35.9 44.8 38.0
</TABLE>
<PAGE> 84
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- ---------------------------------- -------------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
09/04/92 12/24/92 Autodie Corp Progressive Tool & Industry Co Machinery
09/02/92 04/01/93 DCB Corp Old Natl Bancorp, Evansville, IN Commercial Banks, Bank Holding Companies
08/31/92 07/09/93 Society for Savings Bancorp Bank of Boston Corp Savings and Loans, Mutual Savings Banks
08/31/92 12/30/92 Sun Electric Corp Snap-On Tools Corp Measuring, Medical, Photo Equipment;
Clocks
08/20/92 02/10/93 Lincoln Financial Corp, IN Norwest Corp, Minneapolis, MN Commercial Banks, Bank Holding Companies
08/20/92 03/01/93 Pioneer Savings Washington Mutual Svgs, Seattle Savings and Loans, Mutual Savings Banks
08/17/92 12/18/92 American Biodyne Inc Medco Containment Services Inc Health Services
08/13/92 12/31/92 Fourth National Corp Fourth Financial Corp Commercial Banks, Bank Holding Companies
08/12/92 08/12/92 Bennett Petroleum Corp Abraxas Petroleum Corp Oil and Gas; Petroleum Refining
08/10/92 09/17/92 American CDI Inc PolyMedica Industries Inc Drugs
07/31/92 11/20/92 Hipotronics Inc Hubbell Inc Electronic and Electrical Equipment
07/30/92 07/30/92 Atlantic Mortgage & Investment Pitney Bowes Credit Corp Real Estate; Mortgage Bankers and
Brokers
07/30/92 01/15/93 Equimark Corp, Pittsburgh, PA Integra Financial Corp Commercial Banks, Bank Holding Companies
07/30/92 02/17/93 Prime Bancshares Inc SouthTrust Corp Commercial Banks, Bank Holding Companies
07/27/92 10/23/92 Horizon Industries Inc Mohawk Industries Inc Textile and Apparel Products
07/24/92 10/19/92 Fleer Corp Marvel Entertainment Group Inc Food and Kindred Products
07/22/92 05/03/93 First Community Bancorp Inc BANC ONE Corp Commercial Banks, Bank Holding Companies
07/20/92 01/22/93 First Fed S&L Assn, Ft Myers, FL Society Corp Savings and Loans, Mutual Savings Banks
07/20/92 10/29/92 Vivigen Inc Genzyme Corp Health Services
07/16/92 07/16/92 Sterling Optical Corp Sterling Vision Inc Wholesale Trade-Durable Goods
07/15/92 07/15/92 Basic American Medical Inc Columbia Hospital Corp Health Services
07/14/92 10/26/92 ANADAC Identix Inc Business Services
07/13/92 03/19/93 Apollo Savings and Loan Co Mid Am Inc Savings and Loans, Mutual Savings Banks
07/13/92 10/15/92 Century MediCorp Inc Foundation Health Corp Health Services
07/10/92 07/10/92 Quantum Learning Systems Inc CCR Inc-Education Division Prepackaged Software
07/09/92 04/16/93 Cherry Hill National Bank, NJ Meridian Bancorp Inc Commercial Banks, Bank Holding Companies
07/08/92 05/20/93 Tago Inc BioSource Industries Inc Drugs
07/05/92 01/29/93 FedFirst Bancshares Inc Southern National, Lumberton, NC Commercial Banks, Bank Holding Companies
07/01/92 11/25/92 Micron Products Inc Arrhythmia Research Technology Measuring, Medical, Photo Equipment;
Clocks
07/01/92 01/04/93 MidAmerican Corp Mercantile Bancorp, St Louis, MO Commercial Banks, Bank Holding Companies
07/01/92 02/26/93 National Savings Bank, Albany KeyCorp, Albany, New York (OLD) Savings and Loans, Mutual Savings Banks
06/29/92 01/15/93 DF Southeastern Inc First Union Corp, Charlotte, NC Savings and Loans, Mutual Savings Banks
06/29/92 02/01/93 First Chattanooga Financial AmSouth Bancorp, Birmingham, AL Savings and Loans, Mutual Savings Banks
06/29/92 07/02/92 General Sciences Corp Science Applications Intl Corp Prepackaged Software
06/22/92 08/31/92 TMBR/Sharp Drilling Inc State Farm Mutual Auto Ins Co Oil and Gas; Petroleum Refining
06/18/92 12/11/92 CK Federal Savings, Concord, NC SouthTrust Corp Savings and Loans, Mutual Savings Banks
06/17/92 09/09/92 Critical Care America Inc Medical Care International Inc Health Services
06/17/92 12/02/92 Tyler Cabot Mortgage Sec Fund Capstead Mortgage Corp Investment & Commodity Firms, Dealers,
Exchang
06/16/92 10/05/92 Arctic Alaska Fisheries Corp Tyson Foods Inc Agriculture, Forestry, and Fishing
06/12/92 01/15/93 Harmonia Bancorp Sovereign Bancorp Savings and Loans, Mutual Savings Banks
06/11/92 01/15/93 South Carolina Federal Corp First Union Corp, Charlotte, NC Savings and Loans, Mutual Savings Banks
06/09/92 10/29/92 Wetterau Inc Super Valu Stores Inc Wholesale Trade-Nondurable Goods
06/08/92 12/31/93 Gulf States Utilities Co Entergy Corp Electric, Gas, and Water Distribution
06/05/92 05/03/93 Key Centurion Bancshares, WV BANC ONE Corp Commercial Banks, Bank Holding Companies
06/03/92 12/04/92 Advanced Telecommunications LDDS Communications Inc Telecommunications
05/27/92 03/09/93 Centel Corp Sprint Corp Telecommunications
05/18/92 12/07/92 First Florida Banks Inc Barnett Banks, Jacksonville, FL Commercial Banks, Bank Holding Companies
05/15/92 12/11/92 Patlex Corp AutoFinance Group Inc Investment & Commodity Firms, Dealers,
Exchang
05/13/92 09/04/92 Nova Pharmaceutical Corp Scios Inc Business Services
05/13/92 06/01/92 Syntrex Inc Phoenix Technologies Inc Computer and Office Equipment
05/04/92 09/30/92 Wiland Services Inc Neodata Corp (Hicks Muse & Co) Business Services
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
09/04/92 33.9 100.0% 0.0% 0.0%
09/02/92 57.0 0.0% 100.0% 0.0%
08/31/92 205.4 0.0% 100.0% 0.0%
08/31/92 110.7 100.0% 0.0% 0.0% 13.9 23.3 40.6
08/20/92 163.9 0.0% 100.0% 0.0% (16.7) (8.2) 31.7
08/20/92 170.0 0.0% 100.0% 0.0% 10.7 9.6 14.3
08/17/92 120.2 0.0% 100.0% 0.0% 38.1 37.1 49.8
08/13/92 43.1 0.0% 99.9% 0.1%
08/12/92 2.0 44.6% 55.4% 0.0%
08/10/92 2.6 0.0% 99.6% 0.4%
07/31/92 39.9 100.0% 0.0% 0.0% 20.1 17.7 15.4
07/30/92 38.6 40.4% 0.0% 59.6%
07/30/92 287.9 0.0% 100.0% 0.0% 40.0 36.9 31.1
07/30/92 38.7 2.1% 97.8% 0.2% 55.0 53.8 71.9
07/27/92 86.5 74.0% 26.0% 0.0% 69.0 64.4 81.8
07/24/92 264.2 100.0% 0.0% 0.0% 9.8 20.4 21.7
07/22/92 137.9 0.0% 100.0% 0.0% 86.8 81.8 84.3
07/20/92 141.3 100.0% 0.0% 0.0% 32.4 26.8 36.4
07/20/92 39.3 0.0% 100.0% 0.0% 15.0 35.5 19.5
07/16/92 6.0 100.0% 0.0% 0.0%
07/15/92 150.4 33.0% 67.0% 0.0% 1.6 2.3 (0.5)
07/14/92 6.3 0.0% 99.4% 0.6%
07/13/92 12.7 0.0% 99.9% 0.1% 95.6 95.6 100.4
07/13/92 164.1 0.0% 100.0% 0.0% 66.3 94.1 127.8
07/10/92 8.4 0.0% 100.0% 0.0%
07/09/92 18.7 0.0% 100.0% 0.0%
07/08/92 1.0 0.0% 98.0% 2.0% (76.0) (74.2) (66.4)
07/05/92 89.1 0.0% 84.8% 15.2% 55.9 70.8 84.4
07/01/92 5.4 40.7% 59.1% 0.2%
07/01/92 110.9 0.0% 100.0% 0.0%
07/01/92 64.6 0.0% 100.0% 0.0% 29.4 29.4 34.7
06/29/92 145.7 0.0% 100.0% 0.0% 71.8 74.1 89.7
06/29/92 109.7 2.6% 97.4% 0.0% 67.2 57.2 67.2
06/29/92 10.1 100.0% 0.0% 0.0% (7.0) (10.8)
06/22/92 11.4 0.0% 0.0% 100.0%
06/18/92 32.7 0.0% 100.0% 0.0% 38.4 25.8 38.4
06/17/92 846.3 0.0% 100.0% 0.0% 0.9 6.3 (5.4)
06/17/92 259.4 0.0% 0.0% 100.0%
06/16/92 412.3 9.0% 42.5% 48.5% 85.5 104.0 100.0
06/12/92 92.2 11.6% 88.4% 0.0% 44.9 55.4 81.6
06/11/92 78.2 0.0% 100.0% 0.0% 66.7 70.6 80.2
06/09/92 1,084.3 59.4% 0.0% 40.6% 26.0 33.0 27.4
06/08/92 2,281.0 11.0% 89.0% 0.0% 64.9 64.9 63.3
06/05/92 583.9 0.0% 100.0% 0.0% 28.0 26.3 29.7
06/03/92 585.6 0.0% 100.0% 0.0% 34.6 43.8 75.0
05/27/92 3,967.0 0.0% 72.3% 27.7% (9.3) (6.1) 4.9
05/18/92 882.6 0.0% 100.0% 0.0% 77.0 75.6 72.2
05/15/92 45.0 0.0% 100.0% 0.0% 26.7 15.7 40.0
05/13/92 166.4 0.0% 100.0% 0.0% 0.9 (6.0) (13.8)
05/13/92 13.6 23.5% 0.0% 76.5%
05/04/92 25.0 100.0% 0.0% 0.0% (10.5) (12.0) 20.0
</TABLE>
<PAGE> 85
WERTHEIM SCHRODER & CO.
Incorporated
Investment Banking Department
Analysis of Acquisitions of Public Companies
Premiums and Form of Consideration Paid (a)
(dollars in millions)
<TABLE>
<CAPTION>
Date Date
Announced Effective Target Name Acquiror Name Target Industry
--------- --------- ---------------------------------- -------------------------------- ----------------------------------------
<S> <C> <C> <C> <C>
04/30/92 03/30/93 Home Federal Svgs Bank of AL Colonial BancGroup Inc Savings and Loans, Mutual Savings Banks
04/21/92 02/26/93 First Fincorp Inc BB & T Financial Corp Savings and Loans, Mutual Savings Banks
04/14/92 03/31/93 Valley National Corp, Phoenix BANC ONE Corp Commercial Banks, Bank Holding Companies
04/07/92 12/31/92 First Coml Bancshares Inc, AL Synovus Financial Corp Commercial Banks, Bank Holding Companies
04/06/92 08/24/92 Wicat Systems Inc Jostens Inc Computer and Office Equipment
04/03/92 12/30/92 Thermascan Inc Virology Testing Sciences Drugs
04/02/92 09/01/92 Volunteer Bancshares Inc Bancorp of Mississippi, Tupelo Commercial Banks, Bank Holding Companies
03/31/92 06/30/93 Horizon Financial Services Inc Republic Bancorp Inc Savings and Loans, Mutual Savings Banks
03/25/92 06/30/92 OW Office Warehouse OfficeMax Inc Wholesale Trade-Durable Goods
03/18/92 10/15/92 INB Financial Corp NBD Bancorp, Detroit, Michigan Commercial Banks, Bank Holding Companies
03/13/92 07/27/93 The Circle K Corp CK Acquisitions Corp Retail Trade-Food Stores
03/12/92 06/29/92 MIPS Computer Systems Inc Silicon Graphics Inc Electronic and Electrical Equipment
03/09/92 08/19/92 First American BanCorp, Ohio Charter One Financial Inc Commercial Banks, Bank Holding Companies
03/05/92 10/01/92 Sunwest Finl Svcs, Albuquerque Boatmen's Bancshares Inc Commercial Banks, Bank Holding Companies
03/04/92 01/15/93 Puget Sound Bancorp, Tacoma, WA KeyCorp, Albany, New York(OLD) Commercial Banks, Bank Holding Companies
03/04/92 07/08/92 Stuart Hall Co Inc Newell Co Paper and Allied Products
03/04/92 08/04/92 Worldwide Computer Svcs Inc Computer Horizons Corp Business Services
03/02/92 03/26/92 Unity Healthcare Holding Co Star Multi Care Services Inc Business Services
02/27/92 09/30/92 First Savings Bancorp, Ohio Tristate Bancorp, Cincinnati, OH Savings and Loans, Mutual Savings Banks
02/21/92 08/03/92 First Centennial Corp Citizens Inc Insurance
02/21/92 02/26/92 Sterling Optical Corp Cohen Fashion Optical Inc Wholesale Trade-Duarable Goods
02/20/92 10/13/92 Preferred Homecare of America Home Intensive Care Inc Health Services
02/18/92 08/27/92 Niagara Exchange Corp Selective Insurance Group Inc Insurance
02/17/92 09/30/92 Security Financial Group Inc Metropolitan Financial Corp Commercial Banks, Bank Holding Companies
02/14/92 09/03/92 First Peoples Financial Corp CoreStates Financial Corp Commercial Banks, Bank Holding Companies
02/12/92 06/19/92 Commtron Corp Ingram Entertainment Wholesale Trade-Durable Goods
02/11/92 08/07/92 First Federal S & L, Lenawee Standard Federal Bank Savings and Loans, Mutual Savings Banks
02/10/92 05/29/92 Salem Carpet Mills Inc Shaw Industries Inc Textile and Apparel Products
01/30/92 03/31/92 Flight Dynamics Inc Hughes Flight Dynamics Inc Measuring, Medical, Photo Equipment;
Clocks
01/27/92 07/01/92 FB & T Corp Dauphin Deposit Corp Commercial Banks, Bank Holding Companies
01/22/92 01/22/92 Academy Computing Corp Investor Business Services
01/17/92 11/20/92 Flagship Financial Corp PNC Financial, Pittsburgh, PA Commercial Banks, Bank Holding Companies
01/13/92 10/05/92 Quantronix Corp Excel Technology Inc Electronic and Electric Equipment
</TABLE>
<TABLE>
<CAPTION>
Consideration (%) Premium (%)
Date Transaction ---------------------- -------------------------
Announced Value Cash Common Other 1 Day 1 Week 4 Weeks
--------- ----------- ------ ------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
04/30/92 7.9 0.0% 100.0% 0.0% 42.5
04/21/92 18.5 0.0% 100.0% 0.0% 26.5 38.0 38.0
04/14/92 1,186.0 0.0% 100.0% 0.0% 48.8 66.9 68.8
04/07/92 118.7 0.0% 100.0% 0.0% 36.2 41.1 41.1
04/06/92 97.3 0.0% 100.0% 0.0% 45.9 65.3 51.8
04/03/92 7.3 0.0% 38.4% 61.6%
04/02/92 56.2 0.0% 100.0% 0.0%
03/31/92 28.7 0.0% 99.9% 0.1% 47.9 61.4 69.0
03/25/92 74.8 100.0% 0.0% 0.0% 22.2 51.7 57.1
03/18/92 883.3 0.0% 100.0% 0.0% 32.2 30.4 31.3
03/13/92 399.5 100.0% 0.0% 0.0%
03/12/92 217.7 0.0% 100.0% 0.0% (22.6) (25.1) (23.5)
03/09/92 41.9 0.0% 100.0% 0.0% 69.4 77.3 81.5
03/05/92 327.9 0.0% 100.0% 0.0% 32.5 35.8 37.8
03/04/92 889.8 0.0% 100.0% 0.0% 49.3 54.4 64.1
03/04/92 62.6 0.0% 100.0% 0.0% 51.4 72.3 47.4
03/04/92 3.6 0.0% 100.0% 0.0% (9.9) 12.7 69.0
03/02/92 0.5 100.0% 0.0% 0.0%
02/27/92 14.1 0.0% 100.0% 0.0% 2.5 2.5 2.5
02/21/92 5.4 0.0% 99.4% 0.6% 76.0 105.3 76.0
02/21/92 15.0 50.0% 0.0% 50.0%
02/20/92 14.0 0.0% 76.6% 23.4% 38.0 47.2 69.8
02/18/92 31.9 100.0% 0.0% 0.0% 130.0 130.0 119.0
02/17/92 12.8 0.0% 100.0% 0.0% 70.7 94.4 66.7
02/14/92 107.4 0.0% 100.0% 0.0% 11.9 5.7 21.4
02/12/92 78.3 100.0% 0.0% 0.0% 19.2 21.6 14.8
02/11/92 46.2 100.0% 0.0% 0.0% 55.2 59.7 54.2
02/10/92 138.2 47.2% 0.0% 52.8% 45.1 38.8 72.5
01/30/92 14.5 100.0% 0.0% 0.0%
01/27/92 74.6 0.0% 100.0% 0.0% 26.0 27.1 27.1
01/22/92 0.9 100.0% 0.0% 0.0%
01/17/92 45.5 100.0% 0.0% 0.0% 45.0 51.3 45.0
01/13/92 7.3 0.0% 99.5% 0.5% (12.5) 27.3
</TABLE>
-----------------------------------------------------
(a) Screening criteria: completed friendly mergers or acquisitions of
public companies where 100% of the target company was acquired in
the transaction.
<PAGE> 86
ROPAK CORPORATION
Discounted Cash Flow Analysis
Base Case
(dollars in thousands)
<TABLE>
<CAPTION>
1999 Discount Rate
EBITDA --------------------------------
Multiple 14.0% 15.0% 16.0%
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Present Value of Terminal Value 5.5x $76,481 $73,213 $70,111
6.0x 83,434 79,869 76,485
6.5x 90,387 86,524 82,859
Present Value of Free Cash Flow $19,327 $18,701 $18,102
--------------------------------------------------------------------------------
Enterprise Value 5.5x $95,808 $91,914 $88,213
6.0x 102,761 98,570 94,587
6.5x 109,714 105,226 100,961
--------------------------------------------------------------------------------
Less: Total Debt ($33,757) ($33,757) ($33,757)
Plus: Cash and Equivalents 2,653 2,653 2,653
-------------------------- -------- -------- --------
Net Debt (31,104) (31,104) (31,104)
--------------------------------------------------------------------------------
Equity Value 5.5x $64,704 $60,810 $57,109
6.0x 71,657 67,466 63,483
6.5x 78,610 74,122 69,857
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Per Share Equity Value 5.5x $12.56 $11.83 $11.14
6.0x $13.86 $13.08 $12.33
6.5x $15.16 $14.32 $13.52
--------------------------------------------------------------------------------
</TABLE>
<PAGE> 87
ROPAK CORPORATION
Discounted Cash Flow Analysis
Base Case
(dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------------
Projected
-----------------------------------------------------
1995 1996 1997 1998 1999
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Total Revenue $133,467 $150,739 $167,338 $167,338 $167,338
Costs of Sales (103,531) (114,381) (125,816) (125,504) (125,504)
Operating Expenses (11,046) (12,797) (14,369) (15,060) (15,060)
------------------------- -------- -------- -------- -------- --------
EBITDA 18,890 23,561 27,153 26,774 26,774
Depreciation (8,370) (8,430) (8,733) (8,989) (9,175)
Amortization of Goodwill (365) (365) (365) (365) (365)
------------------------- -------- -------- -------- -------- --------
EBIT 10,155 14,766 18,055 17,420 17,235
Plus: Non-Deductible
Goodwill Amortization 365 365 365 365 365
Plus: Total Book
Depreciation and
Amortization 8,735 8,795 9,098 9,354 9,540
Less: Total Normal Tax
Depreciation and
Amortization (8,735) (8,795) (9,098) (9,354) (9,540)
------------------------- -------- -------- -------- -------- --------
Total Taxable EBIT 10,520 15,131 18,420 17,785 17,600
Cash Income Taxes (4,310) (6,316) (7,741) (7,470) (7,392)
------------------------- -------- -------- -------- -------- --------
Tax-Adjusted EBIT 5,845 8,450 10,314 9,950 9,843
Plus: Depreciation 8,370 8,430 8,733 8,989 9,175
Plus: Amortization of
Goodwill 365 365 365 365 365
Less: Capital
Expenditures (16,602) (8,260) (9,460) (9,000) (9,000)
Less: Working Capital
Requirements 766 (3,504) (3,061) 113 0
------------------------- -------- -------- -------- -------- --------
Free Cash Flow of the
Unlevered Firm ($1,256) $5,481 $6,891 $10,417 $10,382
======== ======== ======== ======== ========
Terminal Value (EBITDA
Multiple)
-------------------------
5.5x $147,257
6.0x 160,644
6.5x 174,032
</TABLE>
<PAGE> 88
ROPAK CORPORATION
Discounted Cash Flow Analysis
Base Case
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
---------------------------------------------------------------------------------
Pro Projected
Historical Estimated form -----------------------------------------------
Operating Assumptions 1993 1994 1994 1995 1996 1997 1998 1999
--------------------------------------------- ---------- --------- ------- ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue Growth 18.3% 18.3% 7.3% 12.9% 11.0% 0.0% 0.0%
Gross Margin 20.7% 21.6% 21.6% 22.4% 24.1% 24.8% 25.0% 25.0%
EDITDA Margin 13.2% 12.2% 12.2% 14.2% 15.6% 16.2% 16.0% 16.0%
Tax Rate 29.2% 40.0% 40.0% 41.0% 41.7% 42.0% 42.0% 42.0%
Interest Rate Assumptions
---------------------------------------------
Existing Revolver 8.5% 8.5% 8.5% 8.5% 8.5%
Blended Term Debt 9.2% 7.4% 7.6% 7.6% 7.6%
Balance Sheet Data
---------------------------------------------
Accounts Receivable
Days 54.3 40.5 40.5 40.6 42.6 43.6 44.0 44.0
Turns 6.7x 9.0x 9.0x 9.0x 8.6x 8.4x 8.3x 8.3x
Inventory
Days 74.2 70.3 70.3 73.3 73.8 74.0 74.0 74.0
Turns 4.9x 5.2x 5.2x 5.0x 4.9x 4.9x 4.9x 4.9x
Accounts Payable
Days 40.2 33.7 33.7 44.7 43.6 43.7 44.0 44.0
Turns 9.1x 10.8x 10.8x 8.2x 8.4x 8.4x 8.3x 8.3x
Other Current Assets 1,383 867 867 867 867 867 867 867
Other Current Liabilities (% of Sales) 2.0% 1.7% 1.7% 1.7% 1.9% 1.9% 2.0% 2.0%
Cash Flow Data
---------------------------------------------
Capital Expenditures $6,005 $11,357 $11,357 $16,602 $8,260 $9,460 $9,000 $9,000
</TABLE>
<PAGE> 89
ROPAK CORPORATION
Discounted Cash Flow Analysis
Downside Case
(dollars in thousands)
<TABLE>
<CAPTION>
1999 Discount Rate
EBITDA --------------------------------
Multiple 14.0% 15.0% 16.0%
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Present Value of Terminal Value 5.5x $61,142 $58,529 $56,049
6.0x 66,700 63,850 61,145
6.5x 72,258 69,171 66,240
Present Value of Free Cash Flow $12,844 $12,408 $11,991
--------------------------------------------------------------------------------
Enterprise Value 5.5x $73,986 $70,938 $68,041
6.0x 79,544 76,258 73,136
6.5x 85,103 81,579 78,231
--------------------------------------------------------------------------------
Less: Total Debt ($33,757) ($33,757) ($33,757)
Plus: Cash and Equivalents 2,653 2,653 2,653
-------------------------- -------- -------- --------
Net Debt (31,104) (31,104) (31,104)
--------------------------------------------------------------------------------
Equity Value 5.5x $42,882 $39,834 $36,937
6.0x 48,440 45,154 42,032
6.5x 53,999 50,475 47,127
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Per Share Equity Value 5.5x $8.48 $7.91 $7.37
6.0x $9.52 $8.91 $8.32
6.5x $10.56 $9.90 $9.28
--------------------------------------------------------------------------------
</TABLE>
<PAGE> 90
ROPAK CORPORATION
Discounted Cash Flow Analysis
Downside Case
(dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------------------------
Projected
------------------------------------------------------------
1995 1996 1997 1998 1999
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Total Revenue $127,245 $137,350 $145,607 $145,607 $145,607
Costs of Sales (100,613) (106,281) (111,661) (111,680) (111,680)
Operating Expenses (10,531) (11,660) (12,503) (12,522) (12,522)
----------------------------------------------------- -------- -------- -------- -------- --------
EBITDA 16,101 19,408 21,443 21,404 21,404
Depreciation (8,370) (8,430) (8,733) (8,989) (9,175)
Amortization of Goodwill (365) (365) (365) (365) (365)
----------------------------------------------------- -------- -------- -------- -------- --------
EBIT 7,366 10,613 12,345 12,050 11,865
Plus: Non-Deductible Goodwill Amortization 365 365 365 365 365
Plus: Total Book Depreciation and Amortization 8,735 8,795 9,098 9,354 9,540
Less: Total Normal Tax Depreciation and Amortization (8,735) (8,795) (9,098) (9,354) (9,540)
----------------------------------------------------- -------- -------- -------- -------- --------
Total Taxable EBIT 7,731 10,978 12,710 12,415 12,230
Cash Income Taxes (3,167) (4,583) (5,341) (5,214) (5,136)
----------------------------------------------------- -------- -------- -------- -------- --------
Tax-Adjusted EBIT 4,199 6,031 7,003 6,836 6,728
Plus: Depreciation 8,370 8,430 8,733 8,989 9,175
Plus: Amortization of Goodwill 365 365 365 365 365
Less: Capital Expenditures (16,602) (8,260) (9,460) (9,000) (9,000)
Less: Working Capital Requirements 1,581 (2,340) (1,681) 76 0
----------------------------------------------------- -------- -------- -------- -------- --------
Free Cash Flow of the Unlevered Firm ($2,088) $4,225 $4,960 $7,266 $7,268
======== ======== ======== ======== ========
Terminal Value (EBITDA Multiple)
----------------------------------------------------------------
5.5x $117,723
6.0x 128,425
6.5x 139,127
</TABLE>
<PAGE> 91
ROPAK CORPORATION
Discounted Cash Flow Analysis
Downside Case
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro forma ---------------------------------------------------
OPERATING ASSUMPTIONS 1993 1994 1994 1995 1996 1997 1998 1999
--------------------------------- ---------- --------- --------- ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue Growth 18.3% 18.3% 2.3% 7.9% 6.0% 0.0% 0.0%
Gross Margin 20.7% 21.6% 21.6% 20.9% 22.6% 23.3% 23.3% 23.3%
EBITDA Margin 13.2% 12.2% 12.2% 12.7% 14.1% 14.7% 14.7% 14.7%
Tax Rate 29.2% 40.0% 40.0% 41.0% 41.7% 42.0% 42.0% 42.0%
INTEREST RATE ASSUMPTIONS
---------------------------------
Existing Revolver 8.5% 8.5% 8.5% 8.5% 8.5%
Blended Term Debt 9.2% 7.4% 7.6% 7.6% 7.6%
BALANCE SHEET DATA
---------------------------------
Accounts Receivable
Days 54.3 40.5 40.5 40.6 42.6 43.6 44.0 44.0
Turns 6.7x 9.0x 9.0x 9.0x 8.6x 8.4x 8.3x 8.3x
Inventory
Days 74.2 70.3 70.3 73.3 73.8 74.0 74.0 74.0
Turns 4.9x 5.2x 5.2x 5.0x 4.9x 4.9x 4.9x 4.9x
Accounts Payable
Days 40.2 33.7 33.7 44.7 43.6 43.7 44.0 44.0
Turns 9.1x 10.8x 10.8x 8.2x 8.4x 8.4x 8.3x 8.3x
Other Current Assets 1,383 867 867 867 867 867 867 867
Other Current Assets (% of Sales) 2.0% 1.7% 1.7% 1.7% 1.9% 1.9% 2.0% 2.0%
CASH FLOW DATA
---------------------------------
Capital Expenditures $6,005 $11,357 $11,357 $16,602 $8,260 $9,460 $9,000 $9,000
</TABLE>
<PAGE> 92
ROPAK CORPORATION
Discounted Cash Flow Analysis
Upside Case
(dollars in thousands)
<TABLE>
<CAPTION>
Discount Rate
1999 EBITDA ------------------------------
Multiple 14.0% 15.0% 16.0%
----------- -------- -------- --------
<S> <C> <C> <C> <C>
Present Value of Terminal Value 5.5x $84,320 $80,717 $77,298
6.0x 91,986 88,055 84,325
6.5x 99,651 95,393 91,352
Present Value of Free Cash Flow $19,070 $18,452 $17,861
----------------------------------------------------------------------------------
Enterprise Value 5.5x $103,390 $19,169 $95,158
6.0x 111,056 106,507 102,185
6.5x 118,721 113,845 109,212
----------------------------------------------------------------------------------
Less: Total Debt ($33,757) ($33,757) ($33,757)
Plus: Cash and Equivalents 2,653 2,653 2,653
------------------------------- -------- -------- --------
Net Debt (31,104) (31,104) (31,104)
----------------------------------------------------------------------------------
Equity Value 5.5x $72,286 $68,065 $64,054
6.0x 79,952 75,403 71,081
6.5x 87,617 82,741 78,108
----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
Per Share Equity Value 5.5x $13.98 $13.19 $12.44
6.0x $15.41 $14.56 $13.75
6.5x $16.84 $15.93 $15.07
----------------------------------------------------------------------------------
</TABLE>
<PAGE> 93
ROPAK CORPORATION
Discounted Cash Flow Analysis
Upside Case
(dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------------------
Projected
----------------------------------------------------
1995 1996 1997 1998 1999
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Total Revenue $133,467 $150,739 $167,338 $175,705 $184,490
Costs of Sales (103,531) (114,381) (125,816) (131,779) (138,368)
Operating Expenses (11,046) (12,797) (14,369) (15,813) (16,604)
----------------------------------------------------- -------- -------- -------- -------- --------
EBITDA 18,890 23,561 27,153 28,113 29,518
Depreciation (8,370) (8,430) (8,733) (8,989) (9,175)
Amortization of Goodwill (365) (365) (365) (365) (365)
----------------------------------------------------- -------- -------- -------- -------- --------
EBIT 10,155 14,766 18,055 18,759 19,979
Plus: Non-Deductible Goodwill Amortization 365 365 365 365 365
Plus: Total Book Depreciation and Amortization 8,735 8,795 9,098 9,354 9,540
Less: Total Normal Tax Depreciation and Amortization (8,735) (8,795) (9,098) (9,354) (9,540)
----------------------------------------------------- -------- -------- -------- -------- --------
Total Taxable EBIT 10,520 15,131 18,420 19,124 20,344
Cash Income Taxes (4,310) (6,316) (7,741) (8,032) (8,544)
----------------------------------------------------- -------- -------- -------- -------- --------
Tax-Adjusted EBIT 5,845 8,450 10,314 10,727 11,434
Plus: Depreciation 8,370 8,430 8,733 8,989 9,175
Plus: Amortization of Goodwill 365 365 365 365 365
Less: Capital Expenditures (16,602) (8,260) (9,460) (9,000) (9,000)
Less: Working Capital Requirements 766 (3,504) (3,061) (1,244) (1,425)
----------------------------------------------------- -------- -------- -------- -------- --------
Free Cash flow of the Unlevered Firm $(1,256) $5,481 $6,891 $9,837 $10,549
----------------------------------------------------- -------- -------- -------- -------- --------
Terminal Value (EBITDA Multiple)
-----------------------------------------------------
5.5x $162,351
6.0x 177,111
6.5x 191,870
</TABLE>
<PAGE> 94
ROPAK CORPORATION
Discounted Cash Flow Analysis
Upside Case
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
-------------------------------------------------------------------------------
Projected
Historical Estimated Pro form -------------------------------------------
OPERATING ASSUMPTIONS 1993 1994 1994 1995 1996 1997 1998 1999
-------------------------------------------- ---------- --------- -------- ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue Growth 18.3% 18.3% 7.3% 12.9% 11.0% 5.0% 5.0%
Gross Margin 20.7% 21.6% 21.6% 22.4% 24.1% 24.8% 25.0% 25.0%
EBITDA Margin 13.2% 12.2% 12.2% 14.2% 15.6% 16.2% 16.0% 16.0%
Tax Rate 29.2% 40.0% 40.0% 41.0% 41.7% 42.0% 42.0% 42.0%
INTEREST RATE ASSUMPTIONS
--------------------------------------------
Existing Revolver 8.5% 8.5% 8.5% 8.5% 8.5%
Blended Term Debt 9.2% 7.4% 7.6% 7.6% 7.6%
BALANCE SHEET DATA
--------------------------------------------
Accounts Receivable
Days 54.3 40.5 40.5 40.6 42.6 43.6 44.0 44.0
Turns 6.7x 9.0x 9.0x 9.0x 8.6x 8.4x 8.3x 8.3x
Inventory
Days 74.2 70.3 70.3 73.3 73.8 74.0 74.0 74.0
Turns 4.9x 5.2x 5.2x 5.0x 4.9x 4.9x 4.9x 4.9x
Accounts Payable
Days 40.2 33.7 33.7 44.7 43.6 43.7 44.0 44.0
Turns 9.1x 10.8x 10.8x 8.2x 8.4x 8.4x 8.3x 8.3x
Other Current Assets 1,383 867 867 867 867 867 867 867
Other Current Liabilities (% of Sales) 2.0% 1.7% 1.7% 1.7% 1.9% 1.9% 2.0% 2.0%
CASH FLOW DATA
--------------------------------------------
Capital Expenditures $6,005 $11,357 $11,357 $16,602 $8,260 $9,460 $9,000 $9,000
</TABLE>
<PAGE> 95
ROPAK CORPORATION
LBO Model
Transaction Summary
(dollars in thousands)
<TABLE>
<CAPTION>
SOURCES OF CASH Amount Percent
---------------------------- ------- -------
<S> <C> <C>
Existing Revolver $0 0.0%
Existing Senior Term Debt 0 0.0%
Senior Subordinated Debt 41,652 71.0%
Junior Subordinate Debt 0 0.0%
New Preferred 0 0.0%
New Equity 17,013 29.0%
---------------------------- ------- ------
TOTAL SOURCES $58,665 100.0%
======= ======
</TABLE>
<TABLE>
<CAPTION>
USES OF CASH Amount Percent
--------------------------------- ------- ---------
<S> <C> <C>
Purchase Price of Existing Equity $56,352 96.1%
Repay Debt 0 0.0%
Working Capital 0 0.0%
Other Intangibles 0 0.0%
Cash 0 0.0%
Transaction Costs 2,313 3.9%
--------------------------------- ------- ------
TOTAL USES $58,665 100.0%
======= ======
</TABLE>
<TABLE>
<CAPTION>
ENTERPRISE VALUE Amount Percent
----------------------------- ------- ---------
<S> <C> <C>
Existing and Remaining Common $0 0.0%
New Equity 17,013 19.0%
New Preferred 0 0.0%
Exiting Debt 33,757 37.6%
Senior Subordinated Debt 41,652 46.4%
Junior Subordinate Debt 0 0.0%
Less: Cash (2,653) (3.0)%
----------------------------- ------- ------
IMPLIED ENTERPRISE VALUE $89,769 100.0%
======= ======
</TABLE>
<TABLE>
<CAPTION>
PURCHASE ADJUSTMENT Amount
---------------------------------- -------
<S> <C>
Purchase Price per Share $11.00
Fully Diluted Share 5,351
Net Option Exercise Price (2,515)
Purchase Price of Existing Equity 56,352
Less: Existing Tangible Book Value (21,411)
Plus: Change in Deferred Taxes 0
---------------------------------- -------
GOODWILL/INTANGIBLES $34,941
=======
</TABLE>
<TABLE>
<CAPTION>
Pro Forma
---------------------------------------------
MULTIPLE ANALYSIS 1994 Multiple 1995 Multiple
------------------------------ ---------------------------------------------
<S> <C> <C> <C> <C>
Enterprise Value (EV) $89,769
EV /EBITDA 15,207 5.9x 16,101 5.6x
EV /EBIT 5,840 15.4x 5,826 15.4x
EV /Revenues 124,439 0.7x 127,245 0.7x
</TABLE>
<TABLE>
<CAPTION>
Coupon/Dividend
INTEREST RATES Term (Yrs.) Amount Book Cash (PIK=0)
----------------------- ------------ --------- ------- ------------
<S> <C> <C> <C> <C>
Senior Subordinate Debt 7.0 $41,652 13.5% 13.5%
Junior Subordinate Debt 10.0 0 15.0% 15.0%
New Preferred 0 NA NA
Additional Cash 0 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
Common Shares Percent Ownership
------------------------ -----------------------
OWNERSHIP Primary Fully Diluted Primary Fully Diluted
------------------------ --------- ------------- --------- -------------
<S> <C> <C> <C> <C>
New Equity 1,000 1,000 100.0% 85.0%
Senior Term Debt 0 0 0.0% 0.0%
Senior Subordinate Debt 0 59 0.0% 5.0%
New Preferred 0 0 0.0% 0.0%
Junior Subordinate Debt 0 0 0.0% 0.0%
Management 0 118 0.0% 10.0%
------------------------ ----- ----- ------ ------
TOTAL 1,000 1,176 100.0% 100.0%
===== ===== ====== ======
</TABLE>
<TABLE>
<CAPTION>
TRANSACTION COSTS Spread Amount Fees
---------------------- ------ ------ ------
<S> <C> <C> <C>
Debt Issuance Costs 3.0% $1,250
Advisory fees 1.0% 564
Legal, Accounting, & Printing Fees $500 500
---------------------- ------
TOTAL TRANSACTION COSTS $2,313
======
</TABLE>
<PAGE> 96
ROPAK CORPORATION
LBO Model
Summary Projected Financial Information
(dollars in thousands)
Summary Financials
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro Forma ------------------------------------------------
1993 1994 1994 1995 1996 1997 1998 1999
---------- --------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $105,193 $124,439 $124,439 $127,245 $137,350 $145,607 $145,607 $145,607
EBITDA 13,860 15,207 15,207 16,101 19,408 21,443 21,404 21,404
EBITA 7,415 8,688 8,688 8,674 12,101 14,184 14,176 14,276
EBIT 6,966 8,239 5,840 5,826 9,253 11,586 11,577 11,677
EBT 5,064 6,073 (1,949) (2,773) 1,060 3,381 3,542 3,946
Net Income Available to Common 3,126 3,135 (2,101) (2,591) (355) 981 1,076 1,311
Cash 0 2,653 2,653 (0) (0) (0) 0 (0)
Existing Revolver 16,271 18,529 18,529 20,361 23,509 24,033 21,029 17,601
Senior Term Debt 10,253 11,342 11,342 7,700 6,357 4,215 3,605 2,995
Senior Subordinate Debt 0 0 41,652 41,652 41,652 41,652 41,652 41,652
Junior Subordinate Debt 0 0 0 0 0 0 0 0
Minority Interest 5,765 5,200 0 0 0 0 0 0
Common Shareholders' Equity 26,401 29,419 22,213 19,621 19,267 20,248 21,324 22,635
--------------------------------- --------- -------- -------- -------- -------- -------- -------- --------
Total Capitalization $58,690 $64,490 $93,736 $89,335 $90,785 $90,148 $87,610 $84,883
Existing Revolver 27.7% 28.7% 19.8% 22.8% 25.9% 26.7% 24.0% 20.7%
Senior Term Debt 17.5% 17.6% 12.1% 8.6% 7.0% 4.7% 4.1% 3.5%
Senior Subordinate Debt 0.0% 0.0% 44.4% 46.6% 45.9% 46.2% 47.5% 49.1%
Junior Subordinate Debt 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Minority Interest 9.8% 8.1% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Common Shareholders' Equity 45.0% 45.6% 23.7% 22.0% 21.2% 22.5% 24.3% 26.7%
--------------------------------- --------- -------- -------- -------- -------- -------- -------- --------
Total Capitalization 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
</TABLE>
INTEREST COVERAGE
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro Forma ------------------------------------------------
1993 1994 1994 1995 1996 1997 1998 1999
---------- --------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EBITDA/Total Interest 6.2x 6.1x 2.0x 1.9x 2.4x 2.6x 2.7x 2.8x
Total Debt/EBITDA 2.5x 2.6x 5.0x 4.6x 3.8x 3.3x 3.1x 2.9x
</TABLE>
<PAGE> 97
ROPAK CORPORATION
LBO Model
Investment Return Summary
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
--------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro Forma ------------------------------------------------
1993 1994 1994 1995 1996 1997 1998 1999
---------- --------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
EBITDA $13,860 $15,207 $15,207 $16,101 $19,408 $21,443 $21,404 $21,404
ENTERPRISE VALUE
------------------------------------
EBITDA Multiple 5.5x $76,230 $83,639 $83,639 $88,554 $106,744 $117,935 $117,723 $117,723
6.0x 83,160 91,242 91,242 96,604 116,448 128,656 128,425 128,425
6.5x 90,090 98,846 98,846 104,655 126,152 139,377 139,127 139,127
Less: Total Debt (29,488) (33,757) (75,409) (73,355) (72,842) (70,542) (66,896) (62,859)
Less: Preferred + Minority Interests (5,765) (5,200) 0 0 0 0 0 0
Plus: Cash and Equivalents 0 2,653 2,653 (0) (0) (0) 0 (0)
Plus: Proceeds From Warrant Exercise 0 0 0 0 0 1,001 1,001 1,001
------------------------------------ -------- -------- -------- -------- -------- -------- -------- --------
Net Debt (35,253) (36,304) ($72,756) ($73,355) ($72,842) ($69,541) ($65,895) ($61,858)
EQUITY VALUE (FULLY DILUTED)
------------------------------------
EBITDA Multiple 5.5x $40,977 $47,335 $10,882 $15,199 $33,902 $48,394 $51,828 $55,865
6.0x 47,907 54,938 18,486 23,249 43,606 59,115 62,530 66,567
6.5x 54,837 62,542 26,089 31,300 53,310 69,836 73,232 77,269
</TABLE>
<TABLE>
<CAPTION>
Common Equity Ownership Projected IRR
----------------------- -----------------------
1997 1998 1999 1997 1998 1999
----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Equity Investors
------------------------------------ ----------------------- -----------------------
5.5x 85.0% 85.0% 85.0% 34.2% 26.9% 22.8%
6.0x 85.0% 85.0% 85.0% 43.5% 32.9% 27.2%
6.5x 85.0% 85.0% 85.0% 51.7% 38.3% 31.0%
----------------------- -----------------------
Senior Subordinated Debt
------------------------------------ ----------------------- -----------------------
5.5x 5.0% 5.0% 5.0% 14.5% 14.3% 14.1%
6.0x 5.0% 5.0% 5.0% 14.9% 14.5% 14.3%
6.5x 5.0% 5.0% 5.0% 15.2% 14.8% 14.5%
----------------------- -----------------------
</TABLE>
<PAGE> 98
ROPAK CORPORATION
LBO MODEL
Income Statement
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------------------------------------------------------
Projected
Actual Estimated Pro Forma ------------------------------------------------
1993 1994 Adjustment 1994 1995 1996 1997 1998 1999
---------- --------- ---------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Net Sales $105,193 $124,439 $0 $124,439 $127,245 $137,350 $145,607 $145,607 $145,607
Cost of Sales (83,453) (97,620) 0 (97,620) (100,613) (106,281) (111,661) (111,680) (111,680)
--------------------------------- -------- -------- -------- -------- -------- -------- -------- -------- --------
GROSS PROFIT 21,740 26,819 0 26,819 26,632 31,068 33,946 33,926 33,926
Operating Expenses (excl. D&A) (7,880) (11,612) 0 (11,612) (10,531) (11,660) (12,503) (12,522) (12,522)
--------------------------------- -------- -------- -------- -------- -------- -------- -------- -------- --------
EBITDA 13,860 15,207 0 15,207 16,101 19,408 21,443 21,404 21,404
Total Depreciation (6,445) (6,519) 0 (6,519) (7,427) (7,307) (7,259) (7,229) (7,129)
--------------------------------- -------- -------- -------- -------- -------- -------- -------- -------- --------
EBITA 7,415 8,688 0 8,688 8,674 12,101 14,184 14,176 14,276
Amortization of Goodwill (449) (449) (1,880) (2,329) (2,329) (2,329) (2,329) (2,329) (2,329)
Amortization of Transaction Costs 0 0 (363) (363) (363) (363) (113) (113) (113)
Amortization of Debt Issuance Cost 0 0 (156) (156) (156) (156) (156) (156) (156)
--------------------------------- -------- -------- -------- -------- -------- -------- -------- -------- --------
EBIT 6,966 8,239 (2,399) 5,840 5,826 9,253 11,586 11,577 11,677
Interest Income 0 0 0 0 0 0 0 0 0
Revolving Bank Debt (1,012) (1,306) 0 (1,306) (1,575) (1,731) (1,998) (2,043) (1,787)
Senior Term Debt (890) (860) 0 (860) (1,401) (839) (584) (369) (320)
Senior Subordinate Debt 0 0 (5,623) (5,623) (5,623) (5,623) (5,623) (5,623) (5,623)
Junior Subordinate Debt 0 0 0 0 0 0 0 0 0
--------------------------------- -------- -------- -------- -------- -------- -------- -------- -------- --------
Net Interest Income/(Expense) (1,902) (2,166) (5,623) (7,789) (8,599) (8,193) (8,205) (8,035) (7,731)
EBT 5,064 6,073 (8,022) (1,949) (2,773) 1,060 3,381 3,542 3,946
Income Tax Expense (1,609) (2,609) 2,457 (152) 182 (1,415) (2,400) (2,466) (2,636)
--------------------------------- -------- -------- -------- -------- -------- -------- -------- -------- --------
Net Income 3,455 3,464 (5,565) (2,101) (2,591) (355) 981 1,076 1,311
Preferred Dividends (329) (329) 329 0 0 0 0 0 0
--------------------------------- -------- -------- -------- -------- -------- -------- -------- -------- --------
Net Income Available to Common $ 3,126 $ 3,135 ($ 5,236) ($ 2,101) ($ 2,591) ($ 355) $ 981 $ 1,076 $ 1,311
======== ======== ======== ======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 99
ROPAK CORPORATION
LBO MODEL
Margin Analysis
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro Forma ------------------------------------------------
1993 1994 1994 1995 1996 1997 1998 1999
---------- --------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net Sales 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of Sales (79.3)% (78.4)% (78.4)% (79.1)% (77.4)% (76.7)% (76.7)% (76.7)%
--------------------------------- -------- -------- -------- -------- -------- -------- -------- --------
Gross Profit 20.7% 21.6% 21.6% 20.9% 22.6% 23.3% 23.3% 23.3%
Operating Expenses (excl. D&A) (7.5)% (9.3)% (9.3)% (8.3)% (8.5)% (8.6)% (8.6)% (8.6)%
--------------------------------- -------- -------- -------- -------- -------- -------- -------- --------
EBITDA 13.2% 12.2% 12.2% 12.7% 14.1% 14.7% 14.7% 14.7%
Total Depreciation (6.1)% (5.2)% (5.2)% (5.8)% (5.3)% (5.0)% (5.0)% (4.9)%
--------------------------------- -------- -------- -------- -------- -------- -------- -------- --------
EBITA 7.0% 7.0% 7.0% 6.8% 8.8% 9.7% 9.7% 9.8%
Amortization of Goodwill (0.4)% (0.4)% (1.9)% (1.8)% (1.7)% (1.6)% (1.6)% (1.6)%
Amortization of Transaction Costs 0.0% 0.0% (0.3)% (0.3)% (0.3)% (0.1)% (0.1)% (0.1)%
Amortization of Debt Issuance Cost 0.0% 0.0% (0.1)% (0.1)% (0.1)% (0.1)% (0.1)% (0.1)%
--------------------------------- -------- -------- -------- -------- -------- -------- -------- --------
EBIT 6.6% 6.6% 4.7% 4.6% 6.7% 8.0% 8.0% 8.0%
Interest Income 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Revolving Bank Debt (1.0)% (1.0)% (1.0)% (1.2)% (1.3)% (1.4)% (1.4)% (1.2)%
Senior Term Debt (0.8)% (0.7)% (0.7)% (1.1)% (0.6)% (0.4)% (0.3)% (0.2)%
Senior Subordinate Debt 0.0% 0.0% (4.5)% (4.4)% (4.1)% (3.9)% (3.9)% (3.9)%
Junior Subordinate Debt 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
--------------------------------- -------- -------- -------- -------- -------- -------- -------- --------
Net Interest Income/(Expense) (1.8)% (1.7)% (6.3)% (6.8)% (6.0)% (5.6)% (5.5)% (5.3)%
EBT 4.8% 4.9% (1.6)% (2.2)% 0.8% 2.3% 2.4% 2.7%
Income Tax Expense (1.5)% (2.1)% (0.1)% 0.1% (1.0)% (1.6)% (1.7)% (1.8)%
--------------------------------- -------- -------- -------- -------- -------- -------- -------- --------
Net Income 3.3% 2.8% (1.7)% (2.0)% (0.3)% 0.7% 0.7% 0.9%
Preferred Dividends (0.3)% (0.3)% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
--------------------------------- -------- -------- -------- -------- -------- -------- -------- --------
Net Income Available to Common 3.0% 2.5% (1.7)% (2.0)% (0.3)% 0.7% 0.7% 0.9%
======== ======== ======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 100
ROPAK CORPORATION
LBO MODEL
Balance Sheet
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro Forma ------------------------------------------------
ASSETS 1993 1994 Adjustment 1994 1995 1996 1997 1998 1999
---------- --------- ---------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Current Assets
Cash and Cash Equivalents $0 $2,653 $0 $2,653 ($0) ($0) ($0) $0 ($0)
Accounts Receivable, Net 15,641 13,800 0 13,800 14,154 16,030 17,393 17,553 17,553
Inventories 16,959 18,800 0 18,800 20,205 21,489 22,638 22,642 22,642
Other Current Assets 1,383 867 0 867 867 867 867 867 867
--------------------------------- ------- ------- ------- -------- -------- -------- -------- -------- --------
Total Current Assets 33,983 36,120 0 36,120 35,226 38,387 40,898 41,062 41,062
Investments $580 $580 0 580 580 580 580 580 580
PP&E, Net 31,342 36,180 0 36,180 38,753 38,447 38,188 37,960 37,831
Transaction Costs, Net 0 0 1,064 1,064 701 338 225 113 0
Goodwill, Net 8,436 8,008 26,933 34,941 32,611 30,282 27,953 25,623 23,294
Debt Issuance Cost, Net 0 0 1,250 1,250 1,093 937 781 625 469
Other Assets 2,839 2,818 0 2,818 2,818 2,818 2,818 2,818 2,818
Total Assets $77,180 $83,706 $29,246 $112,952 $111,783 $111,789 $111,443 $108,780 $106,053
======= ======= ======= ======== ======== ======== ======== ======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Short-Term Borrowing $2,964 $3,886 $0 $3,886 $3,642 $1,323 $642 $610 $610
Accounts/Trade Payable 9,187 9,000 0 9,000 12,322 12,696 13,369 13,463 13,463
Income Taxes Payable 727 718 0 718 718 718 718 718 718
Other Current Liabilities 2,145 2,145 0 2,145 2,300 2,800 3,100 2,912 2,912
--------------------------------- ------- ------- ------- -------- -------- -------- -------- -------- --------
Total Current Liabilities 15,023 15,749 0 15,749 18,982 17,537 17,829 17,703 17,703
Revolving Bank Debt 16,271 18,529 0 18,529 20,361 23,509 24,033 21,029 17,601
Senior Term Debt 10,253 11,342 0 11,342 7,700 6,357 4,215 3,605 2,995
Senior Subordinate Debt 0 0 41,652 41,652 41,652 41,652 41,652 41,652 41,652
Junior Subordinate Debt 0 0 0 0 0 0 0 0 0
Minority Interest 5,765 5,200 (5,200) 0 0 0 0 0 0
Deferred Income Taxes 3,467 3,467 0 3,467 3,467 3,467 3,467 3,467 3,467
Total Liabilities 50,779 54,287 36,452 90,739 92,162 92,522 91,196 87,456 83,419
======= ======= ======= ======== ======== ======== ======== ======== ========
Shareholders' Equity 26,401 29,419 (7,206) 22,213 19,621 19,267 20,248 21,324 22,635
Total Liabilities and Shareholders'
Equity $77,180 $83,706 $29,246 $112,952 $111,783 $111,789 $111,443 $108,780 $106,053
======= ======= ======= ======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 101
ROPAK CORPORATION
LBO MODEL
Cash Flow Statement
(dollars in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro forma ------------------------------------------------
1993 1994 Adjustment 1994 1995 1996 1997 1998 1999
---------- --------- ---------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EBITDA $15,207 0 $15,207 $16,101 $19,408 $21,443 $21,404 $21,404
(Incr.)/Decr. in Working Capital
Accounts Receivable 1,841 (354) (1,877) (1,363) (160) 0
Inventory (1,841) (1,405) (1,284) (1,149) (4) 0
Other Current Assets 516 0 0 0 0 0
Accounts Payable (187) 3,322 374 673 94 0
Other Current Liabilities (9) 155 500 300 (188) 0
--------------------------------- ------- ------ ------- ------- ------- ------- ------- -------
Net (Incr.)/Decr. in Working Capital 320 0 320 1,717 (2,287) (1,538) (257) 0
Cash From Investing
Capital Expenditures (11,357) 0 (10,000) (7,000) (7,000) (7,000) (7,000)
Proceeds from Sale of Assets 0 0 0 0 0 0 0
Increase in Other Assets 21 0 0 0 0 0 0
Increase in Investments 0 0 0 0 0 0 0
--------------------------------- ------- ------ ------- ------- ------- ------- ------- -------
Cash Flow From Investing (11,336) 0 (11,336) (10,000) (7,000) (7,000) (7,000) (7,000)
Cash For Interest, Taxes and
Dividends
Cash Interest Paid (2,166) (5,623) (7,789) (8,599) (8,193) (8,205) (8,035) (7,731)
Preferred Dividends - Cash (329) 0 (329) 0 0 0 0 0
Cash Taxes Paid (2,609) 2,457 (152) 182 (1,415) (2,400) (2,466) (2,636)
--------------------------------- ------- ------ ------- ------- ------- ------- ------- -------
Cash Flow For Interest and Taxes (5,104) (3,166) (8,270) (8,417) (9,608) (10,605) (10,501) (10,367)
Cash Flow Available for Debt
Amortization (913) (3,166) (4,079) (599) 514 2,300 3,646 4,037
Cash Provided/(Used) by Financing
Common Stock (703) 0 0 0 0 0
Revolving Bank Debt 2,258 1,832 3,148 523 (3,004) (3,427)
Senior Term Debt 2,011 (3,886) (3,662) (2,823) (642) (610)
Senior Subordinate Debt 0 0 0 0 0 0
Junior Subordinate Debt 0 0 0 0 0 0
--------------------------------- ------- ------ ------- ------- ------- ------- ------- -------
Cash Flow From Financing 3,566 0 3,566 (2,054) (514) (2,300) (3,646) (4,037)
Increase/(Decrease) in Cash $2,653 ($513) ($2,653) $0 $0 $0 ($0)
======= ======= ======= ======= ======= ======= =======
Beginning Cash Balance $0 $2,653 ($0) ($0) ($0) $0
Net Cash Flow 2,653 (2,653) 0 0 0 (0)
--------------------------------- ------- ------- ------- ------- ------- -------
Ending Cash Balance $2,653 ($0) ($0) ($0) $0 ($0)
======= ======= ======= ======= ======= =======
</TABLE>
<PAGE> 102
ROPAK CORPORATION
LBO Model
Debt Summary
(dollars in thousands)
<TABLE>
<CAPTION>
DEBT REPAYMENT SUMMARY 1995 1996 1997 1998 1999
-------------------------------------------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Cash Flow Available for Debt Amortization ($599) $514 $2,300 $3,646 $4,037
Cash in Excess of Minimum Balance 2,653 (0) (0) (0) 0
Total Scheduled Debt Repayment (3,886) (3,662) (2,823) (642) (610)
--------------------------------------------- ------- ------- ------- ------- -------
Cash Available for existing Revolver ($1,832) ($3,148) ($523) $3,004 $3,427
DEBT SUMMARY
---------------------------------------------
Revolving Bank Debt 1995 1996 1997 1998 1999
------- ------- ------- ------- -------
Debt Year-Start $18,529 $20,361 $23,509 $24,033 $21,029
+ Book Interest expense 1,575 1,731 1,998 2,043 1,787
- Cash Interest expense (1,575) (1,731) (1,998) (2,043) (1,787)
(Repayment)/Drawdown 1,832 3,148 523 (3,004) (3,427)
- Amortization 0 0 0 0 0
--------------------------------------------- ------- ------- ------- ------- -------
Debt Year-End $20,361 $23,509 $24,033 $21,029 $17,601
Senior Term Debt 1995 1996 1997 1998 1999
------- ------- ------- ------- -------
Debt Year-Start $15,228 $11,342 $7,680 $4,857 $4,215
+ Book Interest expense 1,401 839 584 369 320
- Cash Interest expense (1,401) (839) (584) (369) (320)
- Amortization (3,886) (3,662) (2,823) (642) (610)
- Sweep 0 0 0 0 0
-------------------------------------------- ------- ------- ------- ------- -------
Debt Year-End $11,342 $7,680 $4,857 $4,215 $3,605
Senior Subordinate Debt Rate 1995 1996 1997 1998 1999
---------- ------- ------- ------- ------- -------
Debt Year-Start $41,652 $41,652 $41,652 $41,652 $41,652
+ Book Interest expense 5,623 5,623 5,623 5,623 5,623
- Cash Interest expense (5,623) (5,623) (5,623) (5,623) (5,623)
- Scheduled Amortization 0 0 0 0 0
- Sweep 0 0 0 0 0
--------------------------------------------- ------- ------- ------- ------- -------
Debt Year-End $41,652 $41,652 $41,652 $41,652 $41,652
Cash Interest rate 13.5%
Book Interest rate 13.5%
</TABLE>
<PAGE> 103
ROPAK CORPORATION
LBO Model
Book Depreciation and Amortization
(dollars in thousands)
<TABLE>
<CAPTION>
CapEx &
BOOK DEPRECIATION Year Cap. Leases Rate 1995 1996 1997 1998 1999
---------------------------------------- ---- ----------- ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Depreciation from Capital Expenditures 1995 $10,000 14.3% $1,429 $1,429 $1,429 $1,429 $1,429
(7-yr. Depreciation Schedule) 1996 7,000 14.3% 1,000 1,000 1,000 1,000
1997 7,000 14.3% 1,000 1,000 1,000
1998 7,000 14.3% 1,000 1,000
1999 7,000 14.3% 1,000
------- ------ ------ ------ ------ ------ ------
$38,000 71.4% $1,429 $2,429 $3,429 $4,429 $5,429
BOOK AMORTIZATION Amount Term 1995 1996 1997 1998 1999
---------------------------------------- ----------- ------ ------ ------ ------ ------ ------
Goodwill $34,941 15.0 yr. $2,329 $2,329 $2,329 $2,329 $2,329
Other Intangibles 0 0.0 yr. 0 0 0 0 0
Advisory Fees 564 5.0 yr. 113 113 113 113 113
Legal Fees 500 2.0 yr. 250 250 0 0 0
Debt Issuance Costs 1,250 8.0 yr. 156 156 156 156 156
---------------------------------------- ------- ------------------ ------ ------ ------ ------
Total Book Amortization $37,254 6.0 yr. $2,848 $2,848 $2,598 $2,598 $2,598
EXISTING DEPRECIATION AND AMORTIZATION
----------------------------------------
Existing Depreciation of Fixed Assets $5,998 $4,878 $3,830 $2,800 $1,700
Existing Non-Goodwill Amortization 0 0 0 0 0
---------------------------------------- ------ ------ ------ ------ ------
Total Existing Depreciation and Amortization $5,998 $4,878 $3,830 $2,800 $1,700
TOTAL BOOK DEPRECIATION AND AMORTIZATION $10,275 $10,155 $9,857 $9,827 $9,727
======= ======= ====== ====== ======
</TABLE>
<PAGE> 104
ROPAK CORPORATION
LBO Model
Normal Tax Depreciation and Amortization
(dollars in thousands)
<TABLE>
<CAPTION>
CapEx &
NORMAL TAX DEPRECIATION Year Cap. Leases Rate 1995 1996 1997 1998 1999
---------------------------------------- ---- ----------- ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Depreciation from Maintenance Capital
Expenditures 1995 $10,000 14.3% $1,429 $1,429 $1,429 $1,429 $1,429
(7-yr. Depreciation Schedule) 1996 7,000 14.3% 1,000 1,000 1,000 1,000
1997 7,000 14.3% 1,000 1,000 1,000
1998 7,000 14.3% 1,000 1,000
1999 7,000 14.3% 1,000
------- ------ ------ ------ ------ ------ ------
$38,000 71.4% $1,429 $2,429 $3,429 $4,429 $5,429
NORMAL TAX AMORTIZATION Amount Term 1995 1996 1997 1998 1999
---------------------------------------- ----------- ------ ------ ------ ------ ------ ------
Goodwill $34,941 15.0 yr. $2,329 $2,329 $2,329 $2,329 $2,329
Other Intangibles 0 0.0 yr. 0 0 0 0 0
Advisory Fees 564 5.0 yr. 113 113 113 113 113
Legal Fees 500 2.0 yr. 250 250 0 0 0
Debt Issuance Costs 1,250 8.0 yr. 156 156 156 156 156
---------------------------------------- ------- ------------------ ------ ------ ------ ------
Total Normal Tax Amortization $37,254 6.0 yr. $2,848 $2,848 $2,598 $2,598 $2,598
EXISTING DEPRECIATION AND AMORTIZATION
----------------------------------------
Existing Depreciation of Fixed Assets $5,998 $4,878 $3,830 $2,800 $1,700
Existing Non-Goodwill Amortization 0 0 0 0 0
---------------------------------------- ------ ------ ------ ------ ------
Total Existing Depreciation and Amortization $5,998 $4,878 $3,830 $2,800 $1,700
TOTAL NORMAL TAX DEPRECIATION AND AMORTIZATION $10,275 $10,155 $9,857 $9,827 $9,727
======= ======= ====== ====== ======
</TABLE>
<PAGE> 105
ROPAK CORPORATION
LBO Model
Summary Tax Schedule
(dollars in thousands)
<TABLE>
<CAPTION>
BOOK INCOME TAXES Adjustment 1995 1996 1997 1998 1999
----------------------------------------- ---------- --------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
EBT ($8,022) ($2,773) $1,060 $3,381 $3,542 $3,946
Plus: Non-Deductible Goodwill Amortization 1,880 2,329 2,329 2,329 2,329 2,329
Less: Net Operating Loss Carry Forwards 0 0 0 0 0 0
----------------------------------------- ------- ------- ------ ------ ------ ------
Taxable Income for Financial Reporting (6,142) (444) 3,389 5,710 5,872 6,276
Tax Rate 40.0% 41.0% 41.7% 42.0% 42.0% 42.0%
Book Income Taxes ($2,457) ($182) $1,415 $2,400 $2,466 $2,636
======= ======= ====== ====== ====== ======
CASH INCOME TAXES
-----------------------------------------
EBT ($2,773) $ 1,060 $ 3,381 $ 3,542 $ 3,946
Plus: Non-Deductible Goodwill Amortization 2,329 2,329 2,329 2,329 2,329
Plus: Total Book Depreciation and Amortization 10,275 10,155 9,857 9,827 9,727
Less: Total Normal Tax Depreciation and Amortization (10,275) (10,155) (9,857) (9,827) (9,727)
Less: Net Operating Loss 0 0 0 0 0
----------------------------------------- ------- -------- ------- ------- -------
Taxable Income (for tax reporting) (444) 3,389 5,710 5,872 6,276
Tax Rate 41.0% 41.7% 42.0% 42.0% 42.0%
----------------------------------------- ------- -------- ------- ------- -------
Normal Income Taxes (182) 1,415 2,400 2,466 2,636
Cash Income Taxes ($182) $ 1,415 $ 2,400 $ 2,466 $ 2,636
======= ======== ======= ======= =======
Deferred Income Taxes ($0) ($0) $0 $0 $0
</TABLE>
<PAGE> 106
ROPAK CORPORATION
LBO Model
Model Assumptions
(dollars in millions)
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
--------------------------------------------------------------------------------------------------
Projected
Historical Estimated Pro forma ----------------------------------------------
OPERATING ASSUMPTIONS 1993 1994 Adjustment 1994 1995 1996 1997 1998 1999
------------------------------- ---------- --------- ---------- ----------- ------ --------- --------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue Growth 18.3% 18.3% 2.3% 7.9% 6.0% 0.0% 0.0%
Gross Margin 20.7% 21.6% 21.6% 20.9% 22.6% 23.3% 23.3% 23.3%
EBITDA Margin 13.2% 12.2% 12.2% 12.7% 14.1% 14.7% 14.7% 14.7%
Tax Rate 29.2% 40.0% 40.0% 41.0% 41.7% 42.0% 42.0% 42.0%
INTEREST RATE ASSUMPTIONS
-------------------------------
Existing Revolver Interest Rate 8.5% 8.5% 8.5% 8.5% 8.5%
Blended Term Debt Interest Rate 9.2% 7.4% 7.6% 7.6% 7.6%
BALANCE SHEET DATA
-------------------------------
Accounts Receivable
Days 54.3 40.5 40.5 40.6 42.6 43.6 44.0 44.0
Turns 6.7x 9.0x 9.0x 9.0x 8.6x 8.4x 8.3x 8.3x
Inventory
Days 74.2 70.3 70.3 73.3 73.8 74.0 74.0 74.0
Turns 4.9x 5.2x 5.2x 5.0x 4.9x 4.9x 4.9x 4.9x
Accounts Payable
Days 40.2 33.7 33.7 44.7 43.6 43.7 44.0 44.0
Turns 9.1x 10.8x 10.8x 8.2x 8.4x 8.4x 8.3x 8.3x
Other Current Assets 1,383 867 867 867 867 867 867 867
Other Current Liabilities 2.0% 1.7% 1.7% 1.7% 1.9% 1.9% 2.0% 2.0%
(% of Sales)
CASH FLOW DATA
-------------------------------
Capital Expenditures $6,005 $11,357 $11,357 $10,000 $7,000 $7,000 $7,000 $7,000
</TABLE>
<PAGE> 107
ROPAK CORPORATION
Valuation Based on Comparable Merger and Acquisition Transactions
(amounts in thousands)
<TABLE>
<CAPTION>
Ropak
LTM Average
Valuation Multiple 30-Sep-94 Multiples(A) Implied Enterprise Value Implied Equity Value Price Per Share
-------------------------- --------- ------------ ------------------------ -------------------- ---------------
<S> <C> <C> <C> <C> <C>
Enterprise Value/EBIT $7,039 11.6x $81,623 $49,265 $9.68
Enterprise Value/EBITDA 14,551 8.1x 118,113 85,755 16.49
Purchase Price/Net Income 2,978 15.5x 78,507 46,149 9.09
</TABLE>
(a) Includes Mr. Coffee -- Health O Meter, Motor Coach -- Grupo Dina,
Aladdin -- Mohawk, Rexnard -- BTR, Carriage -- Dixie Yarns.
<PAGE> 108
SELECTED MERGER AND ACQUISITION TRANSACTIONS
(amounts in thousands)
<TABLE>
<CAPTION>
ANNOUNCE-
MENT/ LTM
EFFECTIVE PURCHASE ENTERPRISE REVENUES
DATE TARGET/ACQUIRER TARGET DESCRIPTION PRICE (PP) VALUE (EV) EV/REV.
--------- ------------------------------- ------------------------------------------------ ----------- ---------- --------
<S> <C> <C> <C> <C> <C>
28-Sep-94 Ropak Corporation Ropak Corporation designs, manufactures, and $ 53,676(a) $ 86,034 $120,520
markets a broad range of plastic shipping
Linpac Mouldings Limited containers and material handling products. 0.7x
26-Oct-94 RB&W Corporation RB&W Corporation is engaged in the manufac- $ 59,565(a) $ 86,372 $161,196
ture and distribution of cold formed parts,
Park-Ohio Industries, Inc. industrial products and value-added services. 0.5x
The product line includes steel and alloy
nuts and screws and other fasteners.
21-Jan-94 Mr. Coffee Mr. Coffee manufactured coffee makers. $129,164 $156,422 $175,045
19-Aug-94 Health O Meter 0.9x
18-May-94 Motor Coach Industries Motor Coach manufactured transit buses. $333,546 $473,425 $417,711
5-Aug-94 Grupo Dina S.A. de C.V. 1.1x
23-Feb-94 Premix/E.M.S. Inc. Premix/E.M.S. was engaged in the business of $ 25,855(a) $ 31,699 $ 57,553
the molding of thermoplastic components and
3-Aug-94 Bailey Corporation the manufacture of compression-molded parts 0.6x
for use in automotive and transportation
industries.
17-May-94 Advanced Plastics, Inc. Advanced Plastics was an Ohio-based S corpora- $ 10,100(a) $ 12,000 $ 10,907
tion that manufactured a variety of injection
20-May-94 Atlantis Group, Inc. molded plastic automotive market. 1.1x
6-Dec-93 Aladdin Mills Aladdin manufactured carpets and bath rugs. $386,761 $464,115 $463,013
25-Feb-94 Mohawk Industries 1.0x
</TABLE>
<TABLE>
<CAPTION>
ANNOUNCE-
MENT/ BOOK
EFFECTIVE LTM EBIT LTM EBITDA LTM NET INCOME VALUE CASH
DATE TARGET/ACQUIRER EV/EBIT EV/EBITDA PP/NET INCOME PP/BV DEBT
--------- ------------------------------- ----------- ---------- -------------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
28-Sep-94 Ropak Corporation $ 7,039 $ 14,551 $ 2,978 $ 29,347 $ 1,970
Linpac Mouldings Limited 12.2x 5.9x 18.0x 1.8x 34,328
26-Oct-94 RB&W Corporation $ 5,183 $ 6,572 $ 1,737 (b) $ 22,555 $ 576
Park-Ohio Industries, Inc. 16.7x 13.1x 34.3x 2.6x 27,383
21-Jan-94 Mr. Coffee $ 14,496 $ 19,432 $ 6,677 $ 59,770 $ 373
19-Aug-94 Health O Meter 10.8x 8.0x 19.3x 2.2x 27,631
18-May-94 Motor Coach Industries $ 47,372 $ 51,867 $27,853 $101,627 $ 7,244
5-Aug-94 Grupo Dina S.A. de C.V. 10.0x 9.1x 12.0x 3.3x 147,123
23-Feb-94 Premix/E.M.S. Inc. $ (4,820) $ (2,323) $(3,421) $ 20,269 $0
3-Aug-94 Bailey Corporation NM NM NM 1.3x 5,844
17-May-94 Advanced Plastics, Inc. $ 1,818 $ 2,211 $ 1,750 (b) $ 1,755 $0
20-May-94 Atlantis Group, Inc. 6.6x 5.4x 5.8x 5.8x 1,900
6-Dec-93 Aladdin Mills $ 37,175 $ 48,871 $19,405 $ 75,303 $ 2,571
25-Feb-94 Mohawk Industries 12.5x 9.5x 19.9x 5.1x 79,925
</TABLE>
<PAGE> 109
SELECTED MERGER AND ACQUISITION TRANSACTIONS
(amounts in thousands)
<TABLE>
<CAPTION>
ANNOUNCE-
MENT/ LTM
EFFECTIVE PURCHASE ENTERPRISE REVENUES
DATE TARGET/ACQUIRER TARGET DESCRIPTION PRICE (PP) VALUE (EV) EV/REV.
--------- ------------------------------- ------------------------------------------------ ----------- ---------- --------
<S> <C> <C> <C> <C> <C>
2-Dec-93 Rexnord Rexnord manufactured power transmission $200,549 $599,550 $533,919
products.
27-Jan-94 BRT Holdings 1.1x
15-Sep-93 Robinson/Fuzere (a) The companies were involved in the thermo- $ 13,207(b) $ 13,428 $ 16,928 (c)
forming industry as manufacturers of thermo-
4-Oct-93 Filtertek, Inc. formed plastic packaging and parts. They are 0.8x
also involved in printing labels on the thermo-
formed parts.
1-Jul-93 Boler Co. - Contour Division The Contour Technologies Division of Boler $ 6,200(a) $ 7,600 $ 13,553
Company manufactures molded plastic exterior
1-Jul-93 Bailey Corporation components for automobile and truck manu- 0.6x
facturers.
26-May-93 Styrex Industries, Inc. Styrex produced custom designed injection $ 4,500(a) $ 12,687 $ 25,264
molded thermoplastic parts and sub-assemblies.
26-May-93 Pure Tech International, Inc. Its customers were in the industrial products, 0.5x
consumer goods, telecommunication and recrea-
tion industries.
10-Jan-92 Van Dorn Company - Plastics This division manufactured injunction molding $ 81,000(a) $ 81,000 $ 94,767
Div. machines.
20-Apr-93 Mannesmann Demag. AG 0.9x
10-Jan-92 Van Dorn Company Van Dorn manufactured metal, plastic, and $177,000(a) $209,829 $312,894
composite containers for the paint, chemical,
16-Apr-93 Crown Cork & Seal Company, Inc. automotive, food, pharmaceutical and household 0.7x
products industries. The company also manu-
factured injection molding machines.
4-Sep-93 Carriage Industries (a) Carriage Industries manufactured carpets. $ 59,503 $ 91,483 $123,079
12-Mar-93 Dixie Yarns 0.7x
</TABLE>
<TABLE>
<CAPTION>
ANNOUNCE-
MENT/ BOOK
EFFECTIVE LTM EBIT LTM EBITDA LTM NET INCOME VALUE CASH/
DATE TARGET/ACQUIRER EV/EBIT EV/EBITDA PP/NET INCOME PP/BV DEBT
--------- ------------------------------- ----------- ---------- -------------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
2-Dec-93 Rexnord $ 79,728 (a) $106,435 (a) $24,007 (b) $104,031 $ 4,037
27-Jan-94 BRT Holdings 7.5x 5.6x 8.4x 1.9x 403,038
15-Sep-93 Robinson/Fuzere (a) $ 409 (c) $ 1,666 (c) $ 520 (c) $ 13,333 $ 24
4-Oct-93 Filtertek, Inc. 32.9x 8.1x 25.4x 1.0x 245
1-Jul-93 Boler Co. - Contour Division $ (393) $ 365 $(1,533) NM $ 0
1-Jul-93 Bailey Corporation NM 20.8x NM NM 1,400
26-May-93 Styrex Industries, Inc. $ 53 $ 1,197 $ (433)(b) $ (111) $ 5
26-May-93 Pure Tech International, Inc. 237.5x 10.6x NM NM 8,192
10-Jan-92 Van Dorn Company - Plastics NM NM NM NM $ 0
Div.
20-Apr-93 Mannesmann Demag. AG NM NM NM NM 0
10-Jan-92 Van Dorn Company $ 12,862 (b) $ 21,578 (b) $ 5,442 (c) $ 89,703 $ 21,566
16-Apr-93 Crown Cork & Seal Company, Inc. 16.3x 9.7x 32.5x 2.0x 54,395
4-Sep-93 Carriage Industries (a) $ 5,322 $ 11,051 $ 3,330 $ 34,319 $ 28?
12-Mar-93 Dixie Yarns 17.2x 8.3x 17.9x 1.7x 32,26?
</TABLE>
<PAGE> 110
SELECTED MERGER AND ACQUISITION TRANSACTIONS
(amounts in thousands)
<TABLE>
<CAPTION>
ANNOUNCE-
MENT/ LTM
EFFECTIVE PURCHASE ENTERPRISE REVENUES
DATE TARGET/ACQUIRER TARGET DESCRIPTION PRICE (PP) VALUE (EV) EV/REV.
--------- ------------------------------- ------------------------------------------------ ----------- ---------- --------
<S> <C> <C> <C> <C> <C>
17-Sep-92 CONSTAR International Inc. CONSTAR manufactured and sold plastic containers $519,000(a) $605,222 $623,460
in the US and Europe. The company focused on the
21-Oct-92 Crown Cork & Seal Company, Inc. soft drink, wine, automotive, food, household 1.0x
products, and industrial chemical industries.
21-Sep-92 Filtertek, Inc. Filtertek develops designs, manufactures $ 53,423(a) $ 60,265 $ 29,850
and sells specialty filtration elements used
21-Sep-92 Schawk, Inc. in automotive, industrial, and consumer markets. 2.0x
The company utilizes insert injection molding
techniques. The company specializes in filters
made from plastic resins.
</TABLE>
<TABLE>
<CAPTION>
ANNOUNCE-
MENT/ BOOK
EFFECTIVE LTM EBIT LTM EBITDA LTM NET INCOME VALUE CASH/
DATE TARGET/ACQUIRER EV/EBIT EV/EBITDA PP/NET INCOME PP/BV DEBT
--------- ------------------------------- ------- ---------- -------------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
17-Sep-92 CONSTAR International Inc. $39,279 $64,096 $22,477 $169,040 $ 5,086
21-Oct-92 Crown Cork & Seal Company, Inc. 15.4x 9.4x 23.1x 3.1x 91,308
21-Sep-92 Filtertek, Inc. $ 3,138 $ 5,617 $ 2,632 $ 20,352 $ 607
21-Sep-92 Schawk, Inc. 19.2x 10.7x 20.3x 2.6x 7,448
</TABLE>
<PAGE> 111
Selected Merger and Acquisition Transactions
(amounts in thousands)
NOTES:
General
(1) Net income figures are from continuing operations, before extraordinary
items and cumulative effects of changes in accounting principals, and after
minority interests and preferred dividends.
Ropak
(a) Purchase price consists of $10.50 per share plus purchase of options.
RW&B Corporation
(a) RB&W shareholders will receive 4,293,000 Park-Ohio common shares for all
the outstanding stock of RW&B. Park-Ohio's common stock closed at $13.875
on October 25, 1994.
(b) Excludes a $700,000 restructuring charge, a special gain of $1.156 million
and a $1.76 million charge from the write-down of real estate assets.
Charges are tax effected for NOL carryforwards.
Premix/E.M.S. Inc.
(a) Purchase price consists of $7 million in promissory notes, $9 million in
debentures, and $9.855 million in cash.
Advanced Plastics, Inc.
(a) The purchase price is given as $12 million less the Advanced Plastic's debt
plus the company's cash plus an amount up to $1.5 million if Advanced
Plastic's 1994 EBITDA is greater than $2786 thousand. Based on first
quarter results, it is assumed that Advanced Plastic does not exceed
$2786 in 1994 EBITDA.
(b) Excludes a one-time loss on the sale of fixed assets of $31 thousand.
Rexnord Corporation
(a) Exclude restructuring charge of $11 million ($6.8 million, $0.37 per share)
(b) FY 1993 net income results used to calculate LTM N.I. are pro forma data
reflecting the recapitalization.
Standard Packaging, Inc.
(a) The purchase price consists of $15.0 million in cash and $2.25 million in a
note payable over 3 years.
(b) No income tax was attributed to this division.
Robinson/Fuzere
(a) Includes Fuzere Manufacturing Company, Inc., Robinson Industries, and
Fuzere Midwest.
(b) The purchase price consists of $8.207 million in cash and $5 million in
Filtertek common stock.
(c) LTM data based on nine months ended September 30, 1993 annualized data.
Boler
(a) The purchase price was based on 85% of the carrying value of the fixed
assets, subject to adjustments.
Styrex
(a) The purchase price consists of $2,150,000 in cash, $1,430,330 in Pure Tech
common stock, $945,000 in marketable securities, and less $25,000 in
warrants received by Pure Tech.
(b) Excludes $270 thousand charge for write-off of deferred offering costs.
Van Dorn/Mannesmann
(a) The purchase price for the Plastic Machinery Division was $81 million in
cash.
<PAGE> 112
Selected Merger and Acquisition Transactions
(amounts in thousands)
Van Dorn/Crown
(a) The purchase price consists of $140 million in newly issued Crown common
stock and $37 million in cash.
(b) Excludes one-time charges relating to Crown Cork & Seal's merger offer,
shareholder litigation, commitments to repurchase equipment, and estimates
relating to inventory totaling $4144.
(c) Excludes gain on sale of equipment of $884,000.
Carriage Industries, Inc.
(a) FY 1993 income statement results used to calculate LTM results are pro
forma data reflecting the acquisition of Bretlin, Inc.
CONSTAR
(a) On September 17, 1992, Crown Cork and Seal made a tender offer of 32.50 for
the shares of Constar. The acquisition was consummated at $34.875 per
share.
Filtertek
(a) Schawk paid the purchase price in cash for 56.3% of Filtertek. The LTM
numbers are adjusted for this percentage.
<PAGE> 113
GRAPHICS APPENDIX
The following Standard OTC Stock Reports were included:
1. Ropak Corp., Vol. 60/No. 114/Sec. 38 (October 5, 1994)
2. AEP Industries, Vol. 60/No. 106/Sec. 2 (September 16, 1994)
3. Furon Co., Vol. 60/No. 116/Sec. 22 (October 12, 1994)
4. Intertape Polymer Group, Vol. 29/No. 75/Sec. 18 (September 20, 1994)
5. Liqui-Box, Vol. 60/No. 95/Sec. 24 (August 19, 1994)
6. Park-Ohio Industries, Vol. 60/No. 126/Sec. 42 (November 4, 1994)
7. Sealright Co., Vol. 60/No. 97/Sec. 21 (August 24, 1994)
<PAGE> 1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 10th day
of February, 1995, by and between LINPAC MOULDINGS LIMITED ("LINPAC"), with its
principal office at Deykin Avenue, Witton, Birmingham B6 7HY, England on the
one hand and C. Richard Roper, as Custodian for Cathy Diane Roper under the
Uniform Transfers to Minor Act (the "Shareholder").
WHEREAS, ROPAK CORPORATION is a Delaware corporation (the "Company")
with its principal office located at 660 S. State College Blvd., Fullerton,
California 92631-5138;
WHEREAS, the Shareholder owns 3,659 shares (the "Shares") of common
stock of the Company (the "Common Stock");
WHEREAS, the Shareholder desires to sell and LINPAC desires to
purchase the Shares;
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants, agreements and promises herein contained, the parties
agree as follows:
SECTION 1. PURCHASE AND SALE
The Purchase Price for the Shares shall be $10.50 per share.
SECTION 2. CLOSING
2.1. Closing. The transfer of stock (the "Closing") shall
occur through delivery service or at the offices of McDermott, Will & Emery,
227 West Monroe Street, Chicago, Illinois on the date hereof.
2.2. Deliveries by LINPAC. At the Closing, LINPAC shall deliver
a check in the amount of $38,419.50 payable to the Shareholder and such other
instruments or documents as may be necessary or appropriate to carry out the
transactions contemplated hereby.
2.3. Deliveries by Shareholder. At the Closing, Shareholder
shall deliver the following:
(a) a certificate for 3,659 shares of Common Stock
together with a stock power endorsed in blank with signature
guaranteed; and
(b) such other endorsements, instruments or documents as
may be necessary or appropriate to carry out the transactions
contemplated hereby.
EXHIBIT 10.8 Page 1
<PAGE> 2
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to LINPAC as of the date hereof
and as of the Closing, as follows:
3.1. Authority. Shareholder has all requisite power and
authority, without the consent of any other person, to execute and deliver this
Agreement and the documents to be delivered at the Closing and to carry out the
transactions contemplated hereby and thereby.
3.2. Validity. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and binding obligation of
Shareholder, enforceable in accordance with its terms. No approval,
authorization, registration, consent, order or other action of or
filing with any person, including any court, administrative agency or
other government authority, is required for the execution and delivery by
Shareholder of this Agreement or the performance by Shareholder of its
obligations hereunder.
3.4. Common Stock. Shareholder is the owner of the Shares and
has good, marketable and indefeasible title thereto and the absolute right to
sell, assign, transfer and deliver the same, free and clear of all claims,
security interests, liens, pledges, charges, escrows, options, proxies, rights
of first refusal, preemptive rights, mortgages, hypothecations, prior
assignments, title retention agreements, indentures, security agreements or any
other limitation, encumbrance or restriction of any kind.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF LINPAC
LINPAC hereby represents and warrants to Shareholder as of the date
hereof and as of the Closing, as follows:
4.1. Authority. LINPAC has all requisite power and authority,
without the consent of any other person, to execute and deliver this Agreement
and the documents to be delivered at the Closing, and to carry out the
transactions contemplated hereby and thereby. LINPAC is a private company
limited by shares organized and validly existing under the laws of the United
Kingdom.
4.2. Validity. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and legally binding obligation of
LINPAC. No approval, authorization, registration, consent, order or other
action of or filing with any person, including any court, administrative agency
or other government authority, is required for the execution and delivery by
LINPAC of this Agreement or the performance by LINPAC of its obligations
hereunder.
EXHIBIT 10.8 Page 2
<PAGE> 3
SECTION 5. SURVIVAL AND INDEMNIFICATION
The representations and warranties in this Agreement will survive the
Closing. Each party shall indemnify and hold harmless the other from any and
all loss, liability, cost, expense, claim or obligation arising from any breach
of any representation and warranty or failure to fulfill any covenant
hereunder.
SECTION 6. GENERAL PROVISIONS
6.1. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy.
6.2. Expenses. Each party to this Agreement shall pay its own
costs and expenses in connection with the transactions contemplated hereby.
6.3. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts each of which shall be deemed an original, but all
of which together constitute one and the same instrument.
6.4. Entire Transaction. This Agreement and the documents
referred to herein contain the entire understanding among the parties with
respect to the actions contemplated hereby and supersedes all other agreements,
understandings and undertakings among the parties on the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has executed or caused
this Agreement to be executed all as of the date first written above.
LINPAC MOULDINGS LIMITED SHAREHOLDER
By: /s/ DAVID A. WILLIAMS /s/ C. RICHARD ROPER
David A. Williams C. Richard Roper as Custodian
Its: Managing Director for Cathy Diane Roper
EXHIBIT 10.8 Page 3
<PAGE> 1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 10th day
of February, 1995, by and between LINPAC MOULDINGS LIMITED ("LINPAC"), with its
principal office at Deykin Avenue, Witton, Birmingham B6 7HY, England on the
one hand and C. Richard Roper, as Custodian for Robert Richard Roper under the
Uniform Transfers to Minor Act (the "Shareholder").
WHEREAS, ROPAK CORPORATION is a Delaware corporation (the "Company")
with its principal office located at 660 S. State College Blvd., Fullerton,
California 92631-5138;
WHEREAS, the Shareholder owns 3,659 shares (the "Shares") of common
stock of the Company (the "Common Stock");
WHEREAS, the Shareholder desires to sell and LINPAC desires to
purchase the Shares;
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants, agreements and promises herein contained, the parties
agree as follows:
SECTION 1. PURCHASE AND SALE
The Purchase Price for the Shares shall be $10.50 per share.
SECTION 2. CLOSING
2.1. Closing. The transfer of stock (the "Closing") shall
occur through delivery service or at the offices of McDermott, Will & Emery,
227 West Monroe Street, Chicago, Illinois on the date hereof.
2.2. Deliveries by LINPAC. At the Closing, LINPAC shall deliver
a check in the amount of $38,419.50 payable to the Shareholder and such other
instruments or documents as may be necessary or appropriate to carry out the
transactions contemplated hereby.
2.3. Deliveries by Shareholder. At the Closing, Shareholder
shall deliver the following:
(a) a certificate for 3,659 shares of Common Stock
together with a stock power endorsed in blank with signature
guaranteed; and
(b) such other endorsements, instruments or documents as
may be necessary or appropriate to carry out the transactions
contemplated hereby.
EXHIBIT 10.9 Page 1
<PAGE> 2
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to LINPAC as of the date hereof
and as of the Closing, as follows:
3.1. Authority. Shareholder has all requisite power and
authority, without the consent of any other person, to execute and deliver this
Agreement and the documents to be delivered at the Closing and to carry out the
transactions contemplated hereby and thereby.
3.2. Validity. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and binding obligation of
Shareholder, enforceable in accordance with its terms. No approval,
authorization, registration, consent, order or other action of or filing with
any person, including any court, administrative agency or other government
authority, is required for the execution and delivery by Shareholder of this
Agreement or the performance by Shareholder of its obligations hereunder.
3.4. Common Stock. Shareholder is the owner of the Shares and
has good, marketable and indefeasible title thereto and the absolute right to
sell, assign, transfer and deliver the same, free and clear of all claims,
security interests, liens, pledges, charges, escrows, options, proxies, rights
of first refusal, preemptive rights, mortgages, hypothecations, prior
assignments, title retention agreements, indentures, security agreements or any
other limitation, encumbrance or restriction of any kind.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF LINPAC
LINPAC hereby represents and warrants to Shareholder as of the date
hereof and as of the Closing, as follows:
4.1. Authority. LINPAC has all requisite power and authority,
without the consent of any other person, to execute and deliver this Agreement
and the documents to be delivered at the Closing, and to carry out the
transactions contemplated hereby and thereby. LINPAC is a private company
limited by shares organized and validly existing under the laws of the United
Kingdom.
4.2. Validity. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and legally binding obligation of
LINPAC. No approval, authorization, registration, consent, order or other
action of or filing with any person, including any court, administrative agency
or other government authority, is required for the execution and delivery by
LINPAC of this Agreement or the performance by LINPAC of its obligations
hereunder.
EXHIBIT 10.9 Page 2
<PAGE> 3
SECTION 5. SURVIVAL AND INDEMNIFICATION
The representations and warranties in this Agreement will survive the
Closing. Each party shall indemnify and hold harmless the other from any and
all loss, liability, cost, expense, claim or obligation arising from any breach
of any representation and warranty or failure to fulfill any covenant
hereunder.
SECTION 6. GENERAL PROVISIONS
6.1. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy.
6.2. Expenses. Each party to this Agreement shall pay its
own costs and expenses in connection with the transactions contemplated hereby.
6.3. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts each of which shall be deemed an original, but all
of which together constitute one and the same instrument.
6.4. Entire Transaction. This Agreement and the documents
referred to herein contain the entire understanding among the parties with
respect to the actions contemplated hereby and supersedes all other agreements,
understandings and undertakings among the parties on the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has executed or caused
this Agreement to be executed all as of the date first written above.
LINPAC MOULDINGS LIMITED SHAREHOLDER
By: /s/ DAVID A. WILLIAMS /s/ C. RICHARD ROPER
David A. Williams C. Richard Roper as Custodian
Its: Managing Director for Robert Richard Roper
EXHIBIT 10.9 Page 3
<PAGE> 1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 27th day of
February, 1995, by and among:
LINPAC MOULDINGS LTD. ("LINPAC"), with its principal office at Deykin
Avenue, Witton, Birmingham B6 7HY, England;
WILLIAM H. ROPER and his spouse RUTH ROPER, residents of 12 Rue
Biarittz, Newport Beach, California 92660;
ROBERT E. ROPER and his spouse NANCY ROPER, residents of 3802 Holden
Circle, Los Alamitos, California 90720;
C. RICHARD ROPER and his spouse MARGO ROPER, residents of 1383 N.
Mustang, Orange, California 92667,
WILLIAM H. ROPER as sole current trustee for the ROPER FAMILY TRUST
DATED 4/12/94 FBO WILLIAM H. ROPER UTA 9/6/77, AS AMENDED (the
"William Trust"),
ROBERT E. ROPER as sole current trustee for the ROPER FAMILY TRUST
DATED 4/12/94 FBO ROBERT E. ROPER AND/OR CHILDREN UTA 9/6/77, AS
AMENDED (the "Robert Trust"), and
C. RICHARD ROPER as sole current trustee for the ROPER FAMILY TRUST
DATED 4/12/94 FBO C. RICHARD ROPER AND/OR CHILDREN UTA 9/6/77, AS
AMENDED (the "Richard Trust" ).
For convenience of reference, William H. Roper and Ruth Roper, Robert E. Roper
and Nancy Roper, C. Richard Roper and Margo Roper, the William Trust, the
Robert Trust and the Richard Trust are sometimes herein collectively called the
"Shareholders"
PREAMBLE
WHEREAS, ROPAK CORPORATION is a Delaware corporation (the "Company")
with its principal office located at 660 S. State College Blvd., Fullerton,
California 92631-5138;
WHEREAS, the Shareholders are founders, executive officers and
directors of the Company, and own of record and beneficially the number of
issued and outstanding shares (collectively, the "Shares") of common stock of
the Company (the "Common Stock") listed below:
William H. Roper and Ruth Roper 225,134 shares
Robert E. Roper and Nancy Roper 252,554 shares
C. Richard Roper and Margo Roper 269,649 shares
William Trust 79,395 shares
Robert Trust 79,394 shares
Richard Trust 79,394 shares
EXHIBIT 10.10 Page 1
<PAGE> 2
WHEREAS, each of William H. Roper, Robert E. Roper and C. Richard
Roper also hold the right to purchase 44,000 shares of the Common Stock under
stock options granted by the Company (the "Options");
SECTION 1. PURCHASE AND SALE
The purchase price for the Shares shall be $10.50 per share. The
purchase price for the Options shall be $5.0455 per share of Common Stock
represented by the Options.
SECTION 2. CLOSING
2.1. Closing. The transfer of Shares and Options (the
"Closing") shall occur through delivery service or at the offices of McDermott,
Will & Emery, 227 West Monroe Street, Chicago, Illinois on the date hereof or
such other date as the parties agree.
2.2 Deliveries by LINPAC. At the Closing, LINPAC shall deliver
the following:
(a) wire transfer of immediately available funds to the
applicable Shareholder in the amounts and to the accounts listed on
Schedule 2.2;
(b) wire transfer of immediately available funds to the
applicable Shareholder in the amounts and to the accounts listed on
Schedule 2.2; and
(c) such other instruments or documents as may be
necessary or appropriate to carry out the transactions contemplated
hereby.
2.3 Deliveries by Shareholder. At the Closing, each
Shareholder shall deliver the following:
(a) certificates for its Shares together with stock
powers endorsed in blank with signature guaranteed;
(b) in the case of William H. Roper, Robert E. Roper and
C. Richard Roper, such instruments as are necessary to cause the
surrender and cancellation of all Options held by each, and
(c) such other endorsements, instruments or documents as
may be necessary or appropriate to carry out the transactions
contemplated hereby.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder represents and warrants to LINPAC as of the date
hereof and as of the Closing, as follows:
EXHIBIT 10.10 Page 2
<PAGE> 3
3.1. Authority. Each Shareholder has all requisite power and
authority, without the consent of any other person, to execute and deliver this
Agreement and the documents to be delivered at the Closing and to carry out the
transactions contemplated hereby and thereby.
3.2. Validity. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and binding obligation of each
Shareholder, enforceable in accordance with its terms. No approval,
authorization, registration, consent, order or other action of or filing with
any person, including any court, administrative agency or other government
authority, is required for the execution and delivery by each Shareholder of
this Agreement the performance by each Shareholder of its obligations
hereunder.
3.3. Shares. The Shares are duly authorized, validly issued, fully
paid and non-assessable, were not issued in violation of any preemptive,
subscription or other right of any person to acquire securities of the Company.
Each of the Shareholders own the Shares attributed to the Shareholder in the
Preamble and has good, marketable and indefeasible title thereto and the
absolute right to sell, assign, transfer and deliver the same, free and clear
of all claims, security interests, liens, pledges, charges, escrows, options,
proxies, rights of first refusal, preemptive rights, mortgages, hypothecations,
prior assignments, title retention agreements, indentures, security agreements
or any other limitation, encumbrance or restriction of any kind.
3.4. Capital Stock. The authorized capital stock of the Company
consists of 10,000,000 shares of Common Stock and 3,000,000 shares of Preferred
Stock. 4,386,162 shares of Common Stock are issued and outstanding and no
shares of the Company's Preferred Stock have been issued. Except as owned by
LINPAC or as set forth on Schedule 3.5, there is no outstanding subscription,
option, convertible or exchangeable security, preemptive right, warrant, call,
agreement, arrangement or other right (other than this Agreement) relating to
the Company's capital stock or other obligation or commitment of any
Shareholder or the Company to issue or transfer any shares of capital stock.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF LINPAC
LINPAC hereby represents and warrants to each Shareholder as of the
date hereof and as of the Closing, as follows:
4.1. Authority. LINPAC has all requisite power and authority,
without the consent of any other person, to execute and deliver this Agreement
and the documents to be delivered at the Closing, and to carry out the
transactions contemplated hereby and thereby. LINPAC is a private company
limited by shares organized and validly existing under the laws of the United
Kingdom.
EXHIBIT 10.10 Page 3
<PAGE> 4
4.2. Validity. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and legally binding obligation of
LINPAC. No approval, authorization, registration, consent, order or other
action of or filing with any person, including any court, administrative agency
or other government authority, is required for the execution and delivery by
LINPAC of this Agreement or the performance by LINPAC of its obligations
hereunder.
SECTION 5. SURVIVAL AND INDEMNIFICATION
The representations and warranties in this Agreement will survive the
Closing. Each party shall indemnify and hold harmless the other from any and
all loss, liability, cost, expense, claim or obligation arising from any breach
of any representation and warranty or failure to fulfill any covenant
hereunder.
SECTION 6. GENERAL PROVISIONS
6.1. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by certified mail, postage prepaid, commercial overnight courier (such
as Express Mail, Federal Express, etc.) with written verification of receipt or
by telecopy.
6.2. Expenses. Each party to this Agreement shall pay its
own costs and expenses in connection with the transactions contemplated hereby.
6.3. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts each of which shall be deemed an original, but all
of which together constitute one and the same instrument.
6.4. Entire Transaction. This Agreement and the documents
referred to herein contain the entire understanding among the parties with
respect to the actions contemplated hereby and supersedes all other agreements,
understandings and undertakings among the parties on the subject matter hereof.
* * *
EXHIBIT 10.10 Page 4
<PAGE> 5
IN WITNESS WHEREOF, each of the parties hereto has executed or caused
this Agreement to be executed all as of the date first written above.
LINPAC MOULDINGS LIMITED SHAREHOLDERS
By:/s/David A. Williams
David A. Williams
Its: Managing Director /s/William H. Roper
William H. Roper
By:/s/Ruth Roper
Ruth Roper
By:/s/ C. Richard Roper
C. Richard Roper
By:/s/ Margo Roper
Margo Roper
By:/s/Robert E. Roper
Robert E. Roper
By:/s/Nancy Roper
Nancy Roper
ROPER FAMILY TRUST F/B/O WILLIAM
H. ROPER DATED 4/12/94
By:/s/William H. Roper
William H. Roper, trustee
ROPER FAMILY TRUST F/B/O ROBERT
E. ROPER AND/OR CHILDREN UTA 9/6/77
By:/s/Robert E. Roper
Robert E. Roper, trustee
ROPER FAMILY TRUST F/B/O C. RICHARD
ROPER AND/OR CHILDREN UTA 9/6/77
By:/s/ C. Richard Roper
C. Richard Roper, trustee
EXHIBIT 10.10 Page 5
<PAGE> 1
SIDE LETTER AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 27th day of
February, 1994, by and between;
LINPAC MOULDINGS LTD. (the "Parent"), with its principal office at Deykin
Avenue, Witton, Birmingham B6 7HY, England;
WILLIAM H. ROPER and his spouse RUTH ROPER, residents of 12 Rue Biarittz,
Newport Beach, California 92660;
ROBERT E. ROPER and his spouse NANCY ROPER, residents of 3802 Holden Circle,
Los Alamitos, California 90720;
C. RICHARD ROPER and his spouse MARGO ROPER, residents of 1383 N. Mustang,
Orange, California 92667;
C. RICHARD ROPER in his capacity as custodian for certain minor children under
the Uniform Transfers to Minors Act (the "Custodian");
WILLIAM H. ROPER as sole current trustee for the ROPER FAMILY TRUST DATED
4/12/94 FBO WILLIAM H. ROPER UTA 9/6/77, AS AMENDED (the "William Trust");
ROBERT E. ROPER as sole current trustee for the ROPER FAMILY TRUST DATED
4/12/94 FBO ROBERT E. ROPER AND/OR CHILDREN UTA 9/6/77, AS AMENDED (the "Robert
Trust"); and
C. RICHARD ROPER as sole current trustee for the ROPER FAMILY TRUST DATED
4/12/94 FBO C. RICHARD ROPER AND/OR CHILDREN UTA 9/6/77, AS AMENDED (the
"Richard Trust").
For convenience of reference, William H. Roper and Ruth Roper, Robert E. Roper
and Nancy Roper, C. Richard Roper and Margo Roper, the Custodian, the William
Trust, the Robert Trust and the Richard Trust are sometimes herein collectively
called the "Shareholders".
PREAMBLE
WHEREAS, ROPAK CORPORATION is a Delaware corporation (the "Company")
with its principal office located at 660 S. State College Blvd., Fullerton,
California 92631-5138;
WHEREAS, the parties hereto entered into that certain Agreement dated
September 25, 1994 (the "Option Agreement") with respect to the purchase and
sale of shares in the Company and certain other matters;
WHEREAS, due to subsequent events, the parties desire to terminate
their obligations under the Option Agreement;
EXHIBIT 10.11 Page 1
<PAGE> 2
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants, agreements and promises herein contained, the parties
agree as follows:
1. Effective upon the consummation of the following events, the
obligations of the parties under the Option Agreement shall terminate and be of
no further force and effect:
(a) The purchase by the Parent of all shares and stock options in the
Company owned by the Shareholders for a cash price of $10.50 per share
of common stock and, to the extent any such stock options are not
exercised, the difference between $10.50 per share less the exercise
price of the stock options;
(b) the execution and delivery of this Agreement; and
(c) the execution and delivery of those certain Employment Agreements
dated as of January 1, 1995 between the Company, on the one hand, and
each of William H. Roper, Robert E. Roper and C. Richard Roper, on the
other hand, with a guaranty of the obligations of the Company to be
executed and delivered by the Parent.
The parties hereto agree to cause all of the above matters to be concluded by
no later than February 27, 1995.
2. Within 60 days hereafter, the Parent shall cause the Company
to purchase from a partnership owned by the Shareholders certain real property
known by the street address of 660 South State College Boulevard, Fullerton,
California, currently leased by the Company. The purchase price to be paid for
such real property shall be payable in cash and shall be equal to the then
current fair market value of such real property as mutually agreed upon by
Parent and the said partnership or, should they fail to agree, as determined by
an independent appraisal. The parties shall open an escrow for the purchase
and sale of such real property not more than 60 days hereafter providing for a
closing of such real property purchase and sale within 30 days thereafter.
3. Parent acknowledges that the Company shall continue to be
obligated to make payments to members of the Roper family under the terms of
1985 agreements relating to the sale of patent rights and related know-how, all
as presently constituted, for the remaining term thereof through the year ended
December 31, 1995.
4. Parent undertakes and agrees with the Shareholders that if the
Parent has not, on or before April 30, 1995, commenced a tender offer (subject
to reasonable or customary conditions) or instituted other actions to offer all
other stockholders of the Company an opportunity to sell their shares of the
Company's common stock for a cash price of not less than $10.50 per share or,
in the alternative, of voting on a proposed merger transaction that would
provide for payment of a cash price of not less than $10.50 per share if
approved by the requisite vote of Company stockholders, then the Parent shall
thereafter take such action as is necessary for the Company's other
stockholders to be afforded either of such opportunities at the earliest
practicable date consistent with applicable securities laws and regulations;
provided however, that Parent shall not be obligated under this Section 4 so
long as (i) any litigation or other legal
EXHIBIT 10.11 Page 2
<PAGE> 3
or administrative proceeding is then pending that prevents Parent from engaging
in such action or materially adversely affects Parent's ability to proceed with
such action, or (ii) there shall occur hereafter any event or events,
presently unanticipated by the parties, that shall in the reasonable judgment
of the parties materially and adversely affect the valuation of the Company.
5. The parties hereto agree to maintain this Agreement and the
substance of paragraph 4 above as confidential information at all times prior
to April 30, 1995 and shall not disclose the same to any third party prior to
such date.
[SIGNATURE PAGE FOLLOWS]
EXHIBIT 10.11 Page 3
<PAGE> 4
IN WITNESS WHEREOF, each of the parties hereto has executed or caused
this Agreement to be executed all as of the date first written above.
LINPAC MOULDINGS, LTD.
By: /S/ DAVID A. WILLIAMS
/S/ WILLIAM H. ROPER
William H. Roper
/S/ RUTH ROPER
Ruth Roper
/S/ C. RICHARD ROPER
C. Richard Roper
/S/ MARGO ROPER
Margo Roper
/S/ ROBERT E. ROPER
Robert E. Roper
/S/ NANCY ROPER
Nancy Roper
/S/ C. RICHARD ROPER
C. Richard Roper, as custodian
under the Uniform Transfers to Minors Act
EXHIBIT 10.11 Page 4
<PAGE> 5
ROPER FAMILY TRUST F/B/O WILLIAM H. ROPER
DATED 4/12/94
By: /S/ WILLIAM H. ROPER
William H. Roper, Trustee
ROPER FAMILY TRUST F/B/O ROBERT E. ROPER
AND/OR CHILDREN UTA 9/6/77
By: /S/ ROBERT E. ROPER
Robert E. Roper, Trustee
ROPER FAMILY TRUST F/B/O C. RICHARD ROPER
AND/OR CHILDREN UTA 9/6/77
By: /S/ C. RICHARD ROPER
C. Richard Roper, Trustee
EXHIBIT 10.11 Page 5
<PAGE> 1
ASSIGNMENT OF CLAIMS
THIS AGREEMENT ("Agreement") is made and entered into this 27th day of
February, 1995, by and among;
LINPAC MOULDINGS LTD. ("LINPAC"), with its principal office at Deykin Avenue,
Witton, Birmingham B6 7HY, England;
WILLIAM H. ROPER and his spouse RUTH ROPER, residents of 12 Rue Biarittz,
Newport Beach, California 92660;
ROBERT E. ROPER and his spouse NANCY ROPER, residents of 3802 Holden Circle,
Los Alamitos, California 90720;
C. RICHARD ROPER and his spouse MARGO ROPER, residents of 1383 N. Mustang,
Orange, California 92667;
WILLIAM H. ROPER as sole current trustee for the ROPER FAMILY TRUST DATED
4/12/94 FBO WILLIAM H. ROPER UTA 9/6/77, AS AMENDED (the "William Trust");
ROBERT E. ROPER as sole current trustee for the ROPER FAMILY TRUST DATED
4/12/94 FBO ROBERT E. ROPER AND/OR CHILDREN UTA 9/6/77, AS AMENDED (the
"Robert Trust"); and
C. RICHARD ROPER as sole current trustee for the ROPER FAMILY TRUST DATED
4/12/94 FBO C. RICHARD ROPER AND/OR CHILDREN UTA 9/6/77, AS AMENDED (the
"Richard Trust").
For convenience of reference, William H. Roper and Ruth Roper, Robert E. Roper
and Nancy Roper, C. Richard Roper and Margo Roper, the William Trust, the
Robert Trust and the Richard Trust are sometimes herein collectively called the
"Shareholders".
PREAMBLE
WHEREAS, ROPAK CORPORATION is a Delaware corporation (the "Company") with
its principal office located at 660 S. State College Blvd., Fullerton,
California 92631-5138;
WHEREAS, the Shareholders are founders, executive officers and directors of
the Company, and simultaneous with the execution hereof have sold to LINPAC all
shares (collectively, the "Shares") of common stock of the Company owned by
them.
SECTION 1. ASSIGNMENT OF CLAIMS
In consideration of the purchase of the Shares, each Shareholder, on behalf
of himself, his heirs, executors, attorneys, administrators, successors and
assigns, hereby assigns, transfers
EXHIBIT 10.12
Page 1
<PAGE> 2
and delivers all right, title and interest in, to and arising from any
and all claims, demands, actions, suits, causes of action, damages,
injunctions, restraints and liabilities, of whatever kind or nature, in law,
equity or otherwise, whether now known or unknown but only to the extent
arising from events, facts or circumstances arising or occurring prior to the
date hereof (the "Claims"); provided, however, that the following shall not be
included in the assigned Claims (i) unpaid salary for the current pay period,
(ii) amounts due under the Employment Agreements with certain Shareholders
entered into on the date hereof, (iii) regular payments due in the ordinary
course after the date hereof under the terms of the 1985 agreements relating to
the sale of patent rights and related know-how for the remaining term thereof
through December 31, 1995, and (iv) regular lease payments due in the ordinary
course after the date hereof under the lease between the Company and a
partnership owned by certain Shareholders for real property located at 660
South State College Boulevard, Fullerton, California. LINPAC may bring
litigation, demand or suit or otherwise assert the Claims in the name and on
behalf of each Shareholder and shall have complete authority as to the
settlement, disposition or release of the Claims. Each Shareholder hereby
grants LINPAC an irrevocable power of attorney, coupled with its interest in
the Claims to the extent necessary to permit, and for the sole and limited
purpose of permitting, LINPAC to exercise its rights with respect to the
Claims.
SECTION 2. GENERAL PROVISIONS
2.1. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered in person or sent by
registered or certified mail, postage prepaid, commercial overnight courier
(such as Express Mail, Federal Express, etc.) with written verification of
receipt or by telecopy.
2.2. Expenses. Each party to this Agreement shall pay its own costs and
expenses in connection with the transactions contemplated hereby.
2.3. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
2.4. Entire Transaction. This Agreement and the documents referred to
herein contain the entire understanding among the parties with respect to the
actions contemplated hereby and supersedes all other agreements, understandings
and undertakings among the parties on the subject matter hereof.
* * *
EXHIBIT 10.12
Page 2
<PAGE> 3
IN WITNESS WHEREOF, each of the parties hereto has executed or caused this
Agreement to be executed all as of the date first written above.
LINPAC MOULDINGS LIMITED SHAREHOLDERS
By: /s/ DAVID A. WILLIAMS /s/ WILLIAM H. ROPER
David A. Williams William H. Roper
Its: Managing Director
/s/ RUTH ROPER
Ruth Roper
/s/ C. RICHARD ROPER
C. Richard Roper
/s/ MARGO ROPER
Margo Roper
/s/ ROBERT E. ROPER
Robert E. Roper
ROPER FAMILY TRUST F/B/O
WILLIAM H. ROPER UTA 9/6/77
By: WILLIAM H. ROPER
William H. Roper, trustee
ROPER FAMILY TRUST F/B/O
ROBERT E. ROPER AND/OR CHILDREN
UTA 9/6/77
By: ROBERT E. ROPER
Robert E. Roper, trustee
ROPER FAMILY TRUST F/B/O
C. RICHARD ROPER AND/OR CHILDREN
UTA 9/6/77
By: C. RICHARD ROPER
C. Richard Roper, trustee
EXHIBIT 10.12
Page 3
<PAGE> 1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 1st day of
January, 1995, by and between Ropak Corporation, a Delaware corporation (the
"Company"), and William H. Roper (the "Employee").
WHEREAS, Employee was one of the founders of the Company and
possesses intimate knowledge and expertise about all aspects of the business
and operations of the Company;
WHEREAS, Employee owned a substantial equity position in the
Company which he sold to LINPAC MOULDINGS LIMITED concurrent with the execution
of this Agreement; and
WHEREAS, the Company desires to enter into an employment
agreement with Employee in order to assure access to his experience with the
Company and to bind him to certain noncompetition and other covenants.
NOW, THEREFORE, in consideration of the premises and promises
contained herein, the parties agree as follows:
1. Employment. The Company hereby employs the Employee, and
the Employee hereby accepts employment with the Company, as an executive
officer of the Company for a term of one year commencing as of January 1, 1995
through December 31, 1995 with duties relating primarily to strategic and
market planning and business expansion similar to those duties for which he is
now responsible.
2. Performance. The Employee agrees to devote his best
efforts, energies and skills on a full time basis to the performance of his
duties hereunder (except for vacations and reasonable periods of illness or
incapacity). The Employee shall be deemed to have devoted his "full time"
under the requirements of his employment agreement if he devotes at least 180
working days per year to the business affairs of the Company. The principal
place of business at which the Employee's duties are to be performed shall be
located at or within a ten mile radius of the Company's existing principal
office in Fullerton, California. The Employee may be obliged, from time to
time, and for reasonable periods of time, to travel in the performance of the
Employee's duties.
3. Base Salary. During his employment, for all duties to be
performed by the Employee hereunder, the Employee shall receive an annual base
salary (the "Base Salary") of Two Hundred Fifty Thousand Dollars ($250,000),
payable in accordance with the Company's normal payroll periods (prorated for
any partial calendar year).
4. Benefits. During his employment, the Employee will be
entitled to receive fringe benefits comparable to those generally available to
all employees of the
EXHIBIT 10.13 Page 1
<PAGE> 2
Company (including, without limitation, health insurance for the Employee and
his spouse under the Company's existing health plan or a comparable health
insurance plan and the right of participation in the Company 401(k) retirement
savings plan or a comparable retirement plan), reimbursement for travel and
related expenses incurred for the Company's business, the right to first class
domestic airline and business class international airline and first class hotel
accommodations when traveling on Company business, continuation by the Company
during the term of employment of premium payments on one million dollar life
insurance policies for the Employee as presently constituted, and payment by
the Company following retirement or in the event of pre-retirement death or
employment severance of all benefits provided by the Employee's Supplemental
Benefits Plan as presently constituted. Upon termination of his employment
with the Company, ownership of the Employee's life insurance policy shall be
transferred to the Employee subject to the Company's right to receive certain
proceeds as presently specified therein and the obligation of the Employee to
make payment of premiums accruing from and after the termination of his
employment with the Company.
5. Performance Bonus. During his employment, the
Employee will be eligible to participate in an incentive bonus program
providing for a payment to the Employee for each fiscal year of the Company in
which he was employed, commencing with the fiscal year ending December 31,
1995, of not more than $250,000 per year, with the actual amount of such
incentive bonus, if any, to be calculated in accordance with the formula set
forth in Exhibit A attached hereto. Such incentive bonus shall be payable
within 90 days after the end of the fiscal year to which it relates. If the
employment of the Employee is terminated for any reason other than (A) acts of
moral turpitude, or (B) failure on the part of the Employee to provide full
time service to the Company within the meaning of Section 2 above, the Employee
will be eligible to receive that percentage of his incentive bonus attributable
to the full year in which his employment was terminated which is in the same
proportion that the number of months worked during such year bears to twelve
months, but he shall not be entitled to an incentive bonus for any subsequent
year.
6. Confidential Information.
(a) Employee acknowledges that in his position as an
executive officer he has had and shall have access to and knowledge of
confidential information and trade secrets of the Company. Employee covenants
and agrees that he will not at any time, either during or after the term of
this Agreement, except to the extent use or disclosure is required by
applicable laws, or authorized in writing by the Company, directly or
indirectly disclose or furnish to any other person, firm or corporation or use
for his own benefit, gain or otherwise:
(i) any corporate or trade name or trademark of the Company
or its Affiliates for any purpose whatsoever; or
EXHIBIT 10.13 Page 2
<PAGE> 3
(ii) any and all trade secrets, confidential or proprietary
information (the "Confidential Information") relating to the business
of the Company, including, without limitation, financial statements,
client lists, methods of doing business, manufacturing practices,
techniques and processes, marketing programs and plans, customer and
vendor information, know how, techniques and other data and
information of a proprietary nature, of the Company and/or its
Affiliates. Confidential Information shall not include information
which is public knowledge or which shall become part of the public
domain through no fault of the Employee or which Employee shall be
able to show to have been received from a third party which shall not
itself have received and does not possess the information on a
confidential basis. The parties recognize that the Confidential
Information, whether or not developed by Employee, is the exclusive
property of the Company or its Affiliates.
(b) As used in this Agreement, the term "Affiliate" shall
mean any other corporation or other business entity which directly, or
indirectly through one or more intermediaries, controls, is under common
control with or is controlled by the Company.
7. Covenants Not to Compete or Solicit.
(a) So long as the Employee is employed by the Company and
for a period of seven (7) years thereafter, the Employee shall not, directly or
indirectly, by or for himself or as the agent of another or through others as
his agent:
(i) promote, manufacture, sell, lease, license,
distribute or service anywhere in the world (the "Territory")
products, processes or services in existence or under development,
which are similar to or in competition with those of the Company;
(ii) own, manage, operate, be compensated by,
participate in, render advice to, have any right to or interest in any
other business directly or indirectly engaged in the design,
manufacture, production, sale or distribution of products, processes
or services competitive with those of the Company or any Affiliate
anywhere in the Territory;
(iii) divulge, communicate, use or disclose any
nonpublic information concerning the Company, its businesses and
affairs, including the Confidential Information; or
(iv) interfere with the business relationships or
disparage the good name or reputation of the Company or any Affiliate
or take any action which brings the Company or the business of the
Company into public ridicule or disrepute.
EXHIBIT 10.13 Page 3
<PAGE> 4
(b) So long as the Employee is employed by the Company and
for a period of seven (7) years thereafter, the Employee shall not (except in
connection with the rendering of services hereunder), directly or indirectly,
by or for himself, or as the agent of another, or through another as his agent:
(i) solicit or accept any business from any
customer, purchaser or supplier of the Company; provided, however,
that after the termination of the Employee's employment hereunder, he
may solicit or accept business from such a party as an employee of, or
other adviser to, a business which is not engaged in the design,
manufacture, production, sale or distribution of products, processes
or services competitive with those of the Company or any Affiliate;
(ii) solicit for employment or employ or become
employed by any customer, past, present or future employee of the
Company, or request, induce or advise any employee to leave the employ
of the Company; provided, however, that after the termination of the
Employee's employment hereunder, the Employee may be employed by a
customer or past employee of the Company if such participation is not
enagaged in the design, manufacture, production, sale or distribution
of products, processes or services competitive with those of the
Company or any Affiliate;
(iii) use or disclose the names and/or addresses of
any customer, purchaser, supplier or employee of the Company to any
person for any purposes whatsoever.
(c) If the Employee violates any provision of this Section,
then the Company shall not, as a result of the time involved in obtaining
relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, each restrictive covenant shall be deemed to have the
duration specified in Subsections 7(a) and 7(b) hereof, computed from the date
the relief is granted, but reduced by the time between the period when the
restriction began to run and the date of the first violation of the covenant by
the Employee.
(d) The Employee agrees that if Employee shall violate any of
the provisions of this Section, the Company shall be entitled to an accounting
and repayment of all profits, compensation, remuneration or other benefits that
the Employee, directly or indirectly, may realize arising from or related to
any such violation. These remedies shall be in addition to, and not in
limitation of, any injunctive relief or other rights to which the Company may
be entitled.
(e) The parties agree and acknowledge that the duration,
scope and geographic areas applicable to the covenant not to compete described
in this Section
EXHIBIT 10.13 Page 4
<PAGE> 5
are fair, reasonable and necessary, that adequate compensation has been
received by the Employee for such obligations (including compensation
hereunder), and that these obligations do not prevent the Employee from earning
a livelihood. If, however, for any reason any court determines that the
restrictions in this Section 7 are not reasonable, that consideration is
inadequate or that the Employee has been prevented from earning a livelihood,
such restrictions shall be interpreted, modified or rewritten to include as
much of the duration, scope and geographic area identified in this Section as
will render such restrictions valid and enforceable.
(f) Nothing herein shall prohibit the Employee from owning in
the aggregate not more than 1% of the outstanding stock of any corporation
which is publicly traded and engaged in the design, manufacture, production,
sale or distribution of products, processes or services competitive with those
of the Company or any Affiliate, so long as the Employee has no active
participation in the business of such corporation.
8. Consideration for Confidentiality and Noncompetition.
In consideration of the covenants against competition and disclosure of
Confidential Information, the Company shall pay the Employee the aggregate sum
of $1,320,000, payable in equal monthly installments over a term of six years
commencing with the first month after the latter of (A) the last month in which
he was employed, or (B) the last month in which he is entitled to receive
severance payments required under Section 9(a)(ii) below. Such payments shall
be made directly to the employee and in the event of his death or disability
while employed or during such six year term, then to his spouse (and if his
spouse shall not survive, then to his heirs, legatees and devisees) for the
remaining term of such six year payment period and notwithstanding the death or
disability of the Employee.
9. Termination.
(a) Termination by Company.
(i) Notwithstanding any other provision hereof, the
Company may terminate the Employee's employment under this Agreement without
prior notice at any time subject to the provisions of this Section 9. The
termination shall be evidenced by notice thereof to the Employee.
(ii) If the employment of the Employee is terminated
by the Company for any reason or for no reason prior to the expiration of the
term of this Agreement, then the Employee will receive severance payments
payable monthly for the remaining original term of his employment agreement
equal to 150% of the amount of his aggregate base salary for such unexpired
term of this Agreement; provided, however, the Company shall have no obligation
to make such severance payments to the employee if his employment was
terminated by reason of (y) acts of moral turpitude,
EXHIBIT 10.13 Page 5
<PAGE> 6
or (z) failure on the part of the employee to provide full time service to the
Company within the meaning of Section 2 above. For purposes hereof, the term
"acts of moral turpitude" shall include, without limitation, dishonest,
fraudulent or illegal conduct; misappropriation of Company funds; or breach of
any statutory or common law duty of loyalty to the Company.
(b) Resignation and Retirement. Should the Employee elect to
resign or retire voluntarily prior to the expiration of the original term of
this Agreement, the Employee shall provide at least six months prior written
notice to the Company of the date of his voluntary retirement or resignation
except in the event his retirement or resignation is caused by death or
disability. Except in the event of death or disability, failure to provide
such prior six months notice shall relieve the Company from liability to pay an
incentive bonus for any portion of the year in which he shall retire or resign
and shall also relieve the Company from liability to pay any incentive bonus
for the immediately preceding prior year if the same has accrued but is not yet
payable.
(c) Board Resignation. Upon termination of this Agreement
for any reason, Employee shall hereby be deemed to have resigned from the
Company's Board of Directors effective as of the date of termination.
10. Remedies. The Employee acknowledges that the
confidentiality and non-competition provisions contained in Section 6 and
Section 7 herein are essential to induce the Company to enter into this
Agreement, that any breach thereof will result in serious and irreparable
damage to the Company and that money damages will not afford the Company an
adequate remedy. Therefore, if the Employee breaches any provision of Section
6 or Section 7 herein, the parties agree that the Company shall be entitled, in
addition to all other rights and remedies as may be provided by law, to
specific performance, as well as injunctive and other equitable relief to
prevent or restrain a breach of this Agreement or to enforce this Agreement.
The Company shall also be entitled to seek a protective order to ensure the
continued confidentiality of the Confidential Information. Employee hereby
waives any requirement of proof that such breach will cause serious or
irreparable injury to the Company, or that there is not an adequate remedy at
law. The existence of any claim or cause of action of the Employee against the
Company or any Affiliate, whether or not predicated on the terms of this
Agreement, shall not constitute a defense to the enforcement of the Employee's
obligations under this Agreement. The Employee shall pay or reimburse the
Company for all costs and expenses, including court costs and reasonable
attorneys' fees incurred or paid by the Company in protecting or enforcing its
rights and remedies hereunder.
11. Notice. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the
EXHIBIT 10.13 Page 6
<PAGE> 7
receipt); (b) five (5) days after deposit in the mail if sent by registered or
certified mail; (c) one (1) day after having been sent by commercial overnight
courier as evidenced by the written verification of receipt; or (d) on the date
of confirmation if telecopied, as set forth below:
To Employee:
William H. Roper
12 Rue Biarritz
Newport Beach, CA 92660
Telecopy: (714) 644-8621
To Company:
Ropak Corporation
660 South State College Blvd.
Fullerton, CA 92631
Telecopy: (714) 447-3871
Attention: Chief Financial Officer
With a copy to:
LINPAC MOULDINGS LIMITED
Deykin Avenue
Witton
Birmingham B6 7HY
ENGLAND
Attention: David Williams
Telecopy : 011-44-021-327-6757
and
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Stanley H. Meadows
Telecopy: (312) 984-3669
Any party may change its address for receiving notice given by written notice
given to the others named above.
12. Amendments and Waiver. No amendment, waiver or consent
with respect to any provision of this Agreement shall in any event be
effective, unless the same shall be in writing and signed by the parties
hereto, and then such amendment,
EXHIBIT 10.13 Page 7
<PAGE> 8
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. Failure of the Company to take action with
respect to any breach or violation of any provision of this Agreement by
Employee, whether or not the Company had knowledge thereof, shall not operate
as a waiver of any subsequent breach or violation by Employee.
13. Counterparts. This Agreement may be executed
simultaneously in two counterparts each of which shall be deemed an original,
but both of which together constitute one and the same instrument.
14. Taxes. The Company shall be entitled to withhold the
amount of any tax attributable to any payments hereunder.
15. Transferability. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and assigns and
Employee, his heirs, executors and legal representatives. Except as expressly
provided herein, in no event is the Employee's right to payments hereunder
assignable in any manner.
16. Assignment. This Agreement is for personal services and
may not be assigned or pledged by Employee in any manner, by operation of law
or otherwise, without the written consent of the Company.
17. Entire Agreement. This Agreement and the documents
referred to herein contain the entire understanding among the parties with
respect to the actions contemplated hereby and supersedes all other agreements,
understandings and undertakings among the parties on the subject matter hereof.
18. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
California, and the parties hereby consent to the jurisdiction of California
courts over all matters relating to this Agreement.
19. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
20. Severability. If any provision of this Agreement shall
be prohibited by or invalid under applicable law, or otherwise determined to be
unenforceable, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
21. Cessation of Obligations. All obligations of the
Company and rights of Employee under this Agreement shall cease upon any
termination of this Agreement, except as otherwise provided herein.
Notwithstanding anything to the contrary in this
EXHIBIT 10.13 Page 8
<PAGE> 9
Agreement, the provisions of Sections 4, 5, and 9 which by their terms survive
termination of employment and the provisions of Sections 6, 7, 8, 10 and 18
shall survive any termination of this Agreement or employment and shall remain
in full force and effect.
22. Beneficiary. As the purchaser of Employee's equity
interest in the Company, LINPAC MOULDINGS LIMITED shall be entitled to enforce
the provisions of Sections 6, 7 and 10 in the name of the Company and these
Sections and this Section 22 shall not be amended without the prior written
consent of LINPAC MOULDINGS LIMITED.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
ROPAK CORPORATION
By: /S/ ROBERT E. ROPER
Its: President
/S/ WILLIAM H. ROPER
William H. Roper
EXHIBIT 10.13 Page 9
<PAGE> 10
EXHIBIT A
FORMULA FOR INCENTIVE COMPENSATION
1. In each year during the term of full time employment as
defined in the employee's employment agreement, incentive compensation shall be
paid to the Employee if Company Adjusted Earnings for such year (as defined
below) exceeds that year's Target Base (as defined below). If the Company's
Adjusted Earnings for the year shall exceed that year's Target Base, each
eligible employee's incentive compensation shall be 9.26% of the amount by
which Company Adjusted Earnings for the year exceeds the Target Base for the
year, but in no event shall each eligible employee's incentive compensation for
any year exceed the sum of $250,000.
2. Certain Definitions.
(a) "Company Adjusted Earnings" shall mean the Company's income from
operations determined in accordance with generally accepted accounting
principles consistently applied after audit by its independent public
accountants (which shall be a firm of recognized national standing), and then
adjusted as follows. In calculating Company Adjusted Earnings, there shall be
excluded from income or loss: (i) any extraordinary gains and losses from the
sale of intangible or capital assets; (ii) any gains or losses unrelated to
the current year's operations of the Company and its consolidated subsidiaries;
(iii) any corporate charges of LinPac allocated to the Company; (iv) provision
for federal, provincial, state and local taxes based upon income or profits of
the Company and its consolidated subsidiaries; and (v) any accruals or
provisions for incentive compensation for executive and management employees of
the Company, including without limitation the incentive compensation
contemplated by this Agreement. The Company Adjusted Earnings shall be
determined by the Company's Chief Financial Officer after receipt of audited
financial statements from the Company's independent public accountants. THE
PARTIES AGREE THAT COMPANY ADJUSTED EARNINGS FOR THE YEAR 1994 SHALL BE
$7,156,000.
(b) "Target Base" in each year shall mean:
(i) for the fiscal year ended December 31, 1995 =
$7,871,000. This equals the product, rounded down to
the nearest thousand, obtained by multiplying 1.1 by
actual Company Adjusted Earnings of $7,156,000 for
the fiscal year ended December 31, 1994. THE RESULT
OF $7,871,000 IS CALLED THE "1995 TARGET BASE".
(ii) for the fiscal year ended December 31, 1996 =
$11,628,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1995 Target Base plus $2,700,000). THE
RESULT OF $11,628,000 IS CALLED THE "1996 TARGET
BASE".
EXHIBIT 10.13 Page 10
<PAGE> 11
(iii) for the fiscal year ended December 31, 1997 =
$15,760,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1996 Target Base plus $2,700,000). THE
RESULT OF $15,760,000 IS CALLED THE "1997 TARGET
BASE".
(iv) for the fiscal year ended December 31, 1998 =
$20,306,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1997 Target Base plus $2,700,000). THE
RESULT OF $20,306,000 IS CALLED THE "1998 TARGET
BASE".
EXAMPLE OF APPLICATION OF FORMULA FOR INCENTIVE COMPENSATION:
The 1995 TARGET BASE is $7,871,000 [$7,156,000 x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1995 Company Adjusted Earnings, or any part thereof, to the
extent 1995 Company Adjusted Earnings exceeds $7,871,000.
The 1996 TARGET BASE is $11,628,000 [($7,871,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1996 Company Adjusted Earnings, or any part thereof, to the
extent 1996 Company Adjusted Earnings exceeds $11,628,000.
The 1997 TARGET BASE is $15,760,000 [($11,628,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1997 Company Adjusted Earnings, or any part thereof, to the
extent 1997 Company Adjusted Earnings exceeds $15,760,000.
The 1998 TARGET BASE is $20,306,000 [($15,760,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1998 Company Adjusted Earnings, or any part thereof, to the
extent 1998 Company Adjusted Earnings exceeds $20,306,000.
EXHIBIT 10.13 Page 11
<PAGE> 1
CONTINUING GUARANTY
This AGREEMENT made as of the 20th day of February, 1995 is by and
between LINPAC MOULDINGS LIMITED, with its principal office at Deykin Avenue,
Witton, Birmingham B6 7HY, England (the "Guarantor") and WILLIAM H. ROPER, an
individual ("Roper").
WHEREAS, Roper owned a substantial equity position in ROPAK
CORPORATION, a Delaware corporation (the "Employer") which he sold to the
Guarantor concurrent with the execution of this Agreement; and
WHEREAS, Roper and the Employer have executed that certain Employment
Agreement dated as of January 1, 1995 (the "Employment Agreement") in order to
assure Employer with access to Roper's experience and to bind Roper to certain
noncompetition and other covenants which are expressly enforceable by the
Guarantor; and
WHEREAS, to induce Roper to enter into the foregoing agreements and to
sell his equity position in the Employer to the Guarantor, the parties have
agreed to enter into this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto covenant and agree as follows:
The Guarantor hereunder unconditionally and absolutely guarantees the
full and prompt payment when due to, and collection by, Roper and (in the event
of his death or disability) to his successors and assigns, of all sums due and
payable and to become due and payable to Roper under the provisions of the
Employment Agreement. The Guarantor's obligations hereunder (i) are absolute
and unconditional, and (ii) constitute a guaranty of payment and not merely a
guaranty of collection.
If the Employer should breach any of its obligations under the
Employment Agreement to Roper or otherwise be incapable of making payments of
its obligations thereunder when due, and such breach or nonpayment thereof
remains uncured by the Employer for more than ten (10) business days after the
Employer and the Guarantor have received written notice of breach or nonpayment
from Roper, then the Guarantor shall forthwith pay or cause to be paid to Roper
all sums then due and past due under the terms of the Employment Agreement.
The Guarantor hereby waives notice of the acceptance of this Guaranty
by Roper and the Guarantor hereby consents without further notice to (i) any
extension of time that may be given by Roper to the Employer for payment or
performance under the Employment Agreement or (ii) any failure, omission or
delay on the part of Roper, whether intentional or unintentional, in enforcing,
assenting to or exercising any right, remedy or power of Roper under the
Employment Agreement or this Agreement.
EXHIBIT 10.14 Page 1
<PAGE> 2
Notwithstanding anything to the contrary set forth herein, the
Guarantor shall be subrogated to the rights of the Employer under the
Employment Agreement and may assert any defense to a claim hereunder that could
be asserted by the Employer under the terms of the Employment Agreement. The
Employment Agreement shall not be modified or amended by Roper and the Employer
in any material respects without the prior consent in writing of the Guarantor.
If an action is brought by either party to enforce its rights
hereunder, the prevailing party shall be entitled to recover, in addition to
such other relief as may be granted, its reasonable costs and attorney's fees.
This Agreement is governed by and shall be construed in accordance
with the laws of the State of California. The parties to this agreement submit
to the jurisdiction of the Superior Court of the County of Orange, State of
California in the event any action shall be brought by Roper or the Guarantor
hereunder.
IN WITNESS WHEREOF, this Guaranty has been executed and delivered by
the undersigned as of the day and year first written above.
"Guarantor" LINPAC MOULDINGS LIMITED
By: /S/ DAVID A. WILLIAMS
Title: ____________________________
"Roper"
/S/ WILLIAM H. ROPER
WILLIAM H. ROPER
EXHIBIT 10.14 Page 2
<PAGE> 1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 1st day of
January, 1995, by and between Ropak Corporation, a Delaware corporation (the
"Company"), and Robert E. Roper (the "Employee").
WHEREAS, Employee was one of the founders of the Company and
possesses intimate knowledge and expertise about all aspects of the business
and operations of the Company;
WHEREAS, Employee owned a substantial equity position in the
Company which he sold to LINPAC MOULDINGS LIMITED concurrent with the execution
of this Agreement; and
WHEREAS, the Company desires to enter into an employment
agreement with Employee in order to assure access to his experience with the
Company and to bind him to certain noncompetition and other covenants.
NOW, THEREFORE, in consideration of the premises and promises
contained herein, the parties agree as follows:
1. Employment. The Company hereby employs the Employee, and
the Employee hereby accepts employment with the Company, as an executive
officer of the Company for a term of three years commencing as of January 1,
1995 through December 31, 1997 with duties associated with acting as general
manager of the United States container operations similar to those duties for
which he is now responsible.
2. Performance. The Employee agrees to devote his best
efforts, energies and skills on a full time basis to the performance of his
duties hereunder (except for vacations and reasonable periods of illness or
incapacity). The Employee shall be deemed to have devoted his "full time"
under the requirements of his employment agreement if he devotes at least 180
working days per year to the business affairs of the Company. The principal
place of business at which the Employee's duties are to be performed shall be
located at or within a ten mile radius of the Company's existing principal
office in Fullerton, California. The Employee may be obliged, from time to
time, and for reasonable periods of time, to travel in the performance of the
Employee's duties.
3. Base Salary. During his employment, for all duties to be
performed by the Employee hereunder, the Employee shall receive an annual base
salary (the "Base Salary") of Two Hundred Fifty Thousand Dollars ($250,000),
payable in accordance with the Company's normal payroll periods (prorated for
any partial calendar year).
4. Benefits. During his employment, the Employee will be
entitled to
EXHIBIT 10.15 Page 1
<PAGE> 2
receive fringe benefits comparable to those generally available to all
employees of the Company (including, without limitation, health insurance for
the Employee and his spouse under the Company's existing health plan or a
comparable health insurance plan and the right of participation in the Company
401(k) retirement savings plan or a comparable retirement plan), reimbursement
for travel and related expenses incurred for the Company's business, the right
to first class domestic airline and business class international airline and
first class hotel accommodations when traveling on Company business,
continuation by the Company during the term of employment of premium payments
on one million dollar life insurance policies for the Employee as presently
constituted, and payment by the Company following retirement or in the event of
pre-retirement death or employment severance of all benefits provided by the
Employee's Supplemental Benefits Plan as presently constituted. In addition,
the Company will continue to cover the Employee and his spouse under the
Company's existing or comparable health plan at no cost to the Employee until
he shall attain the age of 65, notwithstanding the termination of his
employment or this Agreement for any reason prior to attaining that age. Upon
termination of his employment with the Company, ownership of the Employee's
life insurance policy shall be transferred to the Employee subject to the
Company's right to receive certain proceeds as presently specified therein and
the obligation of the Employee to make payment of premiums accruing from and
after the termination of his employment with the Company.
5. Performance Bonus. During his employment, the
Employee will be eligible to participate in an incentive bonus program
providing for a payment to the Employee for each fiscal year of the Company in
which he was employed, commencing with the fiscal year ending December 31,
1995, of not more than $250,000 per year, with the actual amount of such
incentive bonus, if any, to be calculated in accordance with the formula set
forth in Exhibit A attached hereto. Such incentive bonus shall be payable
within 90 days after the end of the fiscal year to which it relates. If the
employment of the Employee is terminated for any reason other than (A) acts of
moral turpitude, or (B) failure on the part of the Employee to provide full
time service to the Company within the meaning of Section 2 above, the Employee
will be eligible to receive that percentage of his incentive bonus attributable
to the full year in which his employment was terminated which is in the same
proportion that the number of months worked during such year bears to twelve
months, but he shall not be entitled to an incentive bonus for any subsequent
year.
6. Confidential Information.
(a) Employee acknowledges that in his position as an
executive officer he has had and shall have access to and knowledge of
confidential information and trade secrets of the Company. Employee covenants
and agrees that he will not at any time, either during or after the term of
this Agreement, except to the extent use or disclosure is required by
applicable laws, or authorized in writing by the Company, directly or
indirectly disclose or furnish to any other person, firm or corporation or use
for his own
EXHIBIT 10.15 Page 2
<PAGE> 3
benefit, gain or otherwise:
(i) any corporate or trade name or trademark of the Company
or its Affiliates for any purpose whatsoever; or
(ii) any and all trade secrets, confidential or proprietary
information (the "Confidential Information") relating to the business
of the Company, including, without limitation, financial statements,
client lists, methods of doing business, manufacturing practices,
techniques and processes, marketing programs and plans, customer and
vendor information, know how, techniques and other data and
information of a proprietary nature, of the Company and/or its
Affiliates. Confidential Information shall not include information
which is public knowledge or which shall become part of the public
domain through no fault of the Employee or which Employee shall be
able to show to have been received from a third party which shall not
itself have received and does not possess the information on a
confidential basis. The parties recognize that the Confidential
Information, whether or not developed by Employee, is the exclusive
property of the Company or its Affiliates.
(b) As used in this Agreement, the term "Affiliate" shall
mean any other corporation or other business entity which directly, or
indirectly through one or more intermediaries, controls, is under common
control with or is controlled by the Company.
7. Covenants Not to Compete or Solicit.
(a) So long as the Employee is employed by the Company and
for a period of seven (7) years thereafter, the Employee shall not, directly or
indirectly, by or for himself or as the agent of another or through others as
his agent:
(i) promote, manufacture, sell, lease, license,
distribute or service anywhere in the world (the "Territory")
products, processes or services in existence or under development,
which are similar to or in competition with those of the Company;
(ii) own, manage, operate, be compensated by,
participate in, render advice to, have any right to or interest in any
other business directly or indirectly engaged in the design,
manufacture, production, sale or distribution of products, processes
or services competitive with those of the Company or any Affiliate
anywhere in the Territory;
(iii) divulge, communicate, use or disclose any
nonpublic information concerning the Company, its businesses and
affairs, including the Confidential Information; or
EXHIBIT 10.15 Page 3
<PAGE> 4
(iv) interfere with the business relationships or
disparage the good name or reputation of the Company or any Affiliate
or take any action which brings the Company or the business of the
Company into public ridicule or disrepute.
(b) So long as the Employee is employed by the Company and
for a period of seven (7) years thereafter, the Employee shall not (except in
connection with the rendering of services hereunder), directly or indirectly,
by or for himself, or as the agent of another, or through another as his agent:
(i) solicit or accept any business from any
customer, purchaser or supplier of the Company; provided, however,
that after the termination of the Employee's employment hereunder, he
may solicit or accept business from such a party as an employee of, or
other adviser to, a business which is not engaged in the design,
manufacture, production, sale or distribution of products, processes
or services competitive with those of the Company or any Affiliate;
(ii) solicit for employment or employ or become
employed by any customer, past, present or future employee of the
Company, or request, induce or advise any employee to leave the employ
of the Company; provided, however, that after the termination of the
Employee's employment hereunder, the Employee may be employed by a
customer or past employee of the Company if such participation is not
enagaged in the design, manufacture, production, sale or distribution
of products, processes or services competitive with those of the
Company or any Affiliate;
(iii) use or disclose the names and/or addresses of
any customer, purchaser, supplier or employee of the Company to any
person for any purposes whatsoever;
(c) If the Employee violates any provision of this Section,
then the Company shall not, as a result of the time involved in obtaining
relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, each restrictive covenant shall be deemed to have the
duration specified in Subsections 7(a) and 7(b) hereof, computed from the date
the relief is granted, but reduced by the time between the period when the
restriction began to run and the date of the first violation of the covenant by
the Employee.
(d) The Employee agrees that if Employee shall violate any of
the provisions of this Section, the Company shall be entitled to an accounting
and repayment of all profits, compensation, remuneration or other benefits that
the Employee, directly or indirectly, may realize arising from or related to
any such violation.
EXHIBIT 10.15 Page 4
<PAGE> 5
These remedies shall be in addition to, and not in limitation of, any
injunctive relief or other rights to which the Company may be entitled.
(e) The parties agree and acknowledge that the duration,
scope and geographic areas applicable to the covenant not to compete described
in this Section are fair, reasonable and necessary, that adequate compensation
has been received by the Employee for such obligations (including compensation
hereunder), and that these obligations do not prevent the Employee from earning
a livelihood. If, however, for any reason any court determines that the
restrictions in this Section 7 are not reasonable, that consideration is
inadequate or that the Employee has been prevented from earning a livelihood,
such restrictions shall be interpreted, modified or rewritten to include as
much of the duration, scope and geographic area identified in this Section as
will render such restrictions valid and enforceable.
(f) Nothing herein shall prohibit the Employee from owning in
the aggregate not more than 1% of the outstanding stock of any corporation
which is publicly traded and engaged in the design, manufacture, production,
sale or distribution of products, processes or services competitive with those
of the Company or any Affiliate, so long as the Employee has no active
participation in the business of such corporation.
8. Consideration for Confidentiality and Noncompetition.
In consideration of the covenants against competition and disclosure of
Confidential Information, the Company shall pay the Employee the aggregate sum
of $1,320,000, payable in equal monthly installments over a term of six years
commencing with the first month after the latter of (A) the last month in which
he was employed, or (B) the last month in which he is entitled to receive
severance payments required under Section 9(a)(ii) below. Such payments shall
be made directly to the employee and in the event of his death or disability
while employed or during such six year term, then to his spouse (and if his
spouse shall not survive, then to his heirs, legatees and devisees) for the
remaining term of such six year payment period and notwithstanding the death or
disability of the Employee.
9. Termination.
(a) Termination by Company.
(i) Notwithstanding any other provision hereof, the
Company may terminate the Employee's employment under this Agreement without
prior notice at any time subject to the provisions of this Section 9. The
termination shall be evidenced by notice thereof to the Employee.
(ii) If the employment of the Employee is terminated
by the Company for any reason or for no reason prior to the expiration of the
term of this
EXHIBIT 10.15 Page 5
<PAGE> 6
Agreement, then the Employee will receive severance payments payable monthly
for the remaining original term of his employment agreement equal to 150% of
the amount of his aggregate base salary for such unexpired term of this
Agreement; provided, however, the Company shall have no obligation to make such
severance payments to the employee if his employment was terminated by reason
of (y) acts of moral turpitude, or (z) failure on the part of the employee to
provide full time service to the Company within the meaning of Section 2 above.
For purposes hereof, the term "acts of moral turpitude" shall include, without
limitation, dishonest, fraudulent or illegal conduct; misappropriation of
Company funds; or breach of any statutory or common law duty of loyalty to the
Company.
(b) Resignation and Retirement. Should the Employee elect to
resign or retire voluntarily prior to the expiration of the original term of
this Agreement, the Employee shall provide at least six months prior written
notice to the Company of the date of his voluntary retirement or resignation
except in the event his retirement or resignation is caused by death or
disability. Except in the event of death or disability, failure to provide
such prior six months notice shall relieve the Company from liability to pay an
incentive bonus for any portion of the year in which he shall retire or resign
and shall also relieve the Company from liability to pay any incentive bonus
for the immediately preceding prior year if the same has accrued but is not yet
payable.
(c) Board Resignation. Upon termination of this Agreement
for any reason, Employee shall hereby be deemed to have resigned from the
Company's Board of Directors effective as of the date of termination.
10. Remedies. The Employee acknowledges that the
confidentiality and non-competition provisions contained in Section 6 and
Section 7 herein are essential to induce the Company to enter into this
Agreement, that any breach thereof will result in serious and irreparable
damage to the Company and that money damages will not afford the Company an
adequate remedy. Therefore, if the Employee breaches any provision of Section
6 or Section 7 herein, the parties agree that the Company shall be entitled, in
addition to all other rights and remedies as may be provided by law, to
specific performance, as well as injunctive and other equitable relief to
prevent or restrain a breach of this Agreement or to enforce this Agreement.
The Company shall also be entitled to seek a protective order to ensure the
continued confidentiality of the Confidential Information. Employee hereby
waives any requirement of proof that such breach will cause serious or
irreparable injury to the Company, or that there is not an adequate remedy at
law. The existence of any claim or cause of action of the Employee against the
Company or any Affiliate, whether or not predicated on the terms of this
Agreement, shall not constitute a defense to the enforcement of the Employee's
obligations under this Agreement. The Employee shall pay or reimburse the
Company for all costs and expenses, including court costs and reasonable
attorneys' fees incurred or paid by the Company in protecting or enforcing its
rights and remedies hereunder.
EXHIBIT 10.15 Page 6
<PAGE> 7
11. Notice. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five (5) days after
deposit in the mail if sent by registered or certified mail; (c) one (1) day
after having been sent by commercial overnight courier as evidenced by the
written verification of receipt; or (d) on the date of confirmation if
telecopied, as set forth below:
To Employee:
Robert E. Roper
3802 Holden Circle
Los Alamitos, CA 90720
To Company:
Ropak Corporation
660 South State College Blvd.
Fullerton, CA 92631
Telecopy: (714) 447-3871
Attention: Chief Financial Officer
With a copy to:
LINPAC MOULDINGS LIMITED
Deykin Avenue
Witton
Birmingham B6 7HY
ENGLAND
Attention: David Williams
Telecopy : 011-44-021-327-6757
and
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Stanley H. Meadows
Telecopy: (312) 984-3669
Any party may change its address for receiving notice given by written notice
given to the others named above.
EXHIBIT 10.15 Page 7
<PAGE> 8
12. Amendments and Waiver. No amendment, waiver or consent
with respect to any provision of this Agreement shall in any event be
effective, unless the same shall be in writing and signed by the parties
hereto, and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. Failure of
the Company to take action with respect to any breach or violation of any
provision of this Agreement by Employee, whether or not the Company had
knowledge thereof, shall not operate as a waiver of any subsequent breach or
violation by Employee.
13. Counterparts. This Agreement may be executed
simultaneously in two counterparts each of which shall be deemed an original,
but both of which together constitute one and the same instrument.
14. Taxes. The Company shall be entitled to withhold the
amount of any tax attributable to any payments hereunder.
15. Transferability. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and assigns and
Employee, his heirs, executors and legal representatives. Except as expressly
provided herein, in no event is the Employee's right to payments hereunder
assignable in any manner.
16. Assignment. This Agreement is for personal services and
may not be assigned or pledged by Employee in any manner, by operation of law
or otherwise, without the written consent of the Company.
17. Entire Agreement. This Agreement and the documents
referred to herein contain the entire understanding among the parties with
respect to the actions contemplated hereby and supersedes all other agreements,
understandings and undertakings among the parties on the subject matter hereof.
18. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
California, and the parties hereby consent to the jurisdiction of California
courts over all matters relating to this Agreement.
19. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
20. Severability. If any provision of this Agreement shall
be prohibited by or invalid under applicable law, or otherwise determined to be
unenforceable, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
EXHIBIT 10.15 Page 8
<PAGE> 9
21. Cessation of Obligations. All obligations of the
Company and rights of Employee under this Agreement shall cease upon any
termination of this Agreement, except as otherwise provided herein.
Notwithstanding anything to the contrary in this Agreement, the provisions of
Sections 4, 5 and 9 which by their terms survive termination of employment and
the provisions of Sections 6, 7, 8, 10 and 18 shall survive any termination of
this Agreement or employment and shall remain in full force and effect.
22. Beneficiary. As the purchaser of Employee's equity
interest in the Company, LINPAC MOULDINGS LIMITED shall be entitled to enforce
the provisions of Sections 6, 7 and 10 in the name of the Company and these
Sections and this Section 22 shall not be amended without the prior written
consent of LINPAC MOULDINGS LIMITED.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
ROPAK CORPORATION
By: WILLIAM H. ROPER
Its: Chairman
/S/ ROBERT E. ROPER
Robert E. Roper
EXHIBIT 10.15 Page 9
<PAGE> 10
EXHIBIT A
FORMULA FOR INCENTIVE COMPENSATION
1. In each year during the term of full time employment as
defined in the employee's employment agreement, incentive compensation shall be
paid to the Employee if Company Adjusted Earnings for such year (as defined
below) exceeds that year's Target Base (as defined below). If the Company's
Adjusted Earnings for the year shall exceed that year's Target Base, each
eligible employee's incentive compensation shall be 9.26% of the amount by
which Company Adjusted Earnings for the year exceeds the Target Base for the
year, but in no event shall each eligible employee's incentive compensation for
any year exceed the sum of $250,000.
2. Certain Definitions.
(a) "Company Adjusted Earnings" shall mean the Company's income from
operations determined in accordance with generally accepted accounting
principles consistently applied after audit by its independent public
accountants (which shall be a firm of recognized national standing), and then
adjusted as follows. In calculating Company Adjusted Earnings, there shall be
excluded from income or loss: (i) any extraordinary gains and losses from the
sale of intangible or capital assets; (ii) any gains or losses unrelated to
the current year's operations of the Company and its consolidated subsidiaries;
(iii) any corporate charges of LinPac allocated to the Company; (iv) provision
for federal, provincial, state and local taxes based upon income or profits of
the Company and its consolidated subsidiaries; and (v) any accruals or
provisions for incentive compensation for executive and management employees of
the Company, including without limitation the incentive compensation
contemplated by this Agreement. The Company Adjusted Earnings shall be
determined by the Company's Chief Financial Officer after receipt of audited
financial statements from the Company's independent public accountants. THE
PARTIES AGREE THAT COMPANY ADJUSTED EARNINGS FOR THE YEAR 1994 SHALL BE
$7,156,000.
(b) "Target Base" in each year shall mean:
(i) for the fiscal year ended December 31, 1995 =
$7,871,000. This equals the product, rounded down to
the nearest thousand, obtained by multiplying 1.1 by
actual Company Adjusted Earnings of $7,156,000 for
the fiscal year ended December 31, 1994. THE RESULT
OF $7,871,000 IS CALLED THE "1995 TARGET BASE".
(ii) for the fiscal year ended December 31, 1996 =
$11,628,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1995 Target Base plus $2,700,000). THE
RESULT OF $11,628,000 IS CALLED THE "1996 TARGET
BASE".
EXHIBIT 10.15 Page 10
<PAGE> 11
(iii) for the fiscal year ended December 31, 1997 =
$15,760,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1996 Target Base plus $2,700,000). THE
RESULT OF $15,760,000 IS CALLED THE "1997 TARGET
BASE".
(iv) for the fiscal year ended December 31, 1998 =
$20,306,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1997 Target Base plus $2,700,000). THE
RESULT OF $20,306,000 IS CALLED THE "1998 TARGET
BASE".
EXAMPLE OF APPLICATION OF FORMULA FOR INCENTIVE COMPENSATION:
The 1995 TARGET BASE is $7,871,000 [$7,156,000 x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1995 Company Adjusted Earnings, or any part thereof, to the
extent 1995 Company Adjusted Earnings exceeds $7,871,000.
The 1996 TARGET BASE is $11,628,000 [($7,871,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1996 Company Adjusted Earnings, or any part thereof, to the
extent 1996 Company Adjusted Earnings exceeds $11,628,000.
The 1997 TARGET BASE is $15,760,000 [($11,628,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1997 Company Adjusted Earnings, or any part thereof, to the
extent 1997 Company Adjusted Earnings exceeds $15,760,000.
The 1998 TARGET BASE is $20,306,000 [($15,760,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1998 Company Adjusted Earnings, or any part thereof, to the
extent 1998 Company Adjusted Earnings exceeds $20,306,000.
EXHIBIT 10.15 Page 11
<PAGE> 1
CONTINUING GUARANTY
This AGREEMENT made as of the 20th day of February, 1995 is by and
between LINPAC MOULDINGS LIMITED, with its principal office at Deykin Avenue,
Witton, Birmingham B6 7HY, England (the "Guarantor") and ROBERT E. ROPER, an
individual ("Roper").
WHEREAS, Roper owned a substantial equity position in ROPAK
CORPORATION, a Delaware corporation (the "Employer") which he sold to the
Guarantor concurrent with the execution of this Agreement; and
WHEREAS, Roper and the Employer have executed that certain Employment
Agreement dated as of January 1, 1995 (the "Employment Agreement") in order to
assure Employer with access to Roper's experience and to bind Roper to certain
noncompetition and other covenants which are expressly enforceable by the
Guarantor; and
WHEREAS, to induce Roper to enter into the foregoing agreements and to
sell his equity position in the Employer to the Guarantor, the parties have
agreed to enter into this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto covenant and agree as follows:
The Guarantor hereunder unconditionally and absolutely guarantees the
full and prompt payment when due to, and collection by, Roper and (in the event
of his death or disability) to his successors and assigns, of all sums due and
payable and to become due and payable to Roper under the provisions of the
Employment Agreement. The Guarantor's obligations hereunder (i) are absolute
and unconditional, and (ii) constitute a guaranty of payment and not merely a
guaranty of collection.
If the Employer should breach any of its obligations under the
Employment Agreement to Roper or otherwise be incapable of making payments of
its obligations thereunder when due, and such breach or nonpayment thereof
remains uncured by the Employer for more than ten (10) business days after the
Employer and the Guarantor have received written notice of breach or nonpayment
from Roper, then the Guarantor shall forthwith pay or cause to be paid to Roper
all sums then due and past due under the terms of the Employment Agreement.
The Guarantor hereby waives notice of the acceptance of this Guaranty
by Roper and the Guarantor hereby consents without further notice to (i) any
extension of time that may be given by Roper to the Employer for payment or
performance under the Employment Agreement or (ii) any failure, omission or
delay on the part of Roper, whether intentional or unintentional, in enforcing,
assenting to or exercising any right, remedy or power of Roper under the
Employment Agreement or this Agreement.
EXHIBIT 10.16 Page 1
<PAGE> 2
Notwithstanding anything to the contrary set forth herein, the
Guarantor shall be subrogated to the rights of the Employer under the
Employment Agreement and may assert any defense to a claim hereunder that could
be asserted by the Employer under the terms of the Employment Agreement. The
Employment Agreement shall not be modified or amended by Roper and the Employer
in any material respects without the prior consent in writing of the Guarantor.
If an action is brought by either party to enforce its rights
hereunder, the prevailing party shall be entitled to recover, in addition to
such other relief as may be granted, its reasonable costs and attorney's fees.
This Agreement is governed by and shall be construed in accordance
with the laws of the State of California. The parties to this agreement submit
to the jurisdiction of the Superior Court of the County of Orange, State of
California in the event any action shall be brought by Roper or the Guarantor
hereunder.
IN WITNESS WHEREOF, this Guaranty has been executed and delivered by
the undersigned as of the day and year first written above.
"Guarantor" LINPAC MOULDINGS LIMITED
By: /S/ DAVID A. WILLIAMS
Title: ____________________________
"Roper"
/S/ ROBERT E. ROPER
ROBERT E. ROPER
EXHIBIT 10.16 Page 2
<PAGE> 1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 1st day of
January, 1995, by and between Ropak Corporation, a Delaware corporation (the
"Company"), and C. Richard Roper (the "Employee").
WHEREAS, Employee was one of the founders of the Company and
possesses intimate knowledge and expertise about all aspects of the business
and operations of the Company;
WHEREAS, Employee owned a substantial equity position in the
Company which he sold to LINPAC MOULDINGS LIMITED concurrent with the execution
of this Agreement; and
WHEREAS, the Company desires to enter into an employment
agreement with Employee in order to assure access to his experience with the
Company and to bind him to certain noncompetition and other covenants.
NOW, THEREFORE, in consideration of the premises and promises
contained herein, the parties agree as follows:
1. Employment. The Company hereby employs the Employee, and
the Employee hereby accepts employment with the Company, as an executive
officer of the Company for a term of four years commencing as of January 1,
1995 through December 31, 1998 to perform duties associated with acting as
manager of design and engineering and management of raw materials purchases
similar to those duties for which he is now responsible.
2. Performance. The Employee agrees to devote his best
efforts, energies and skills on a full time basis to the performance of his
duties hereunder (except for vacations and reasonable periods of illness or
incapacity). The Employee shall be deemed to have devoted his "full time"
under the requirements of his employment agreement if he devotes at least 180
working days per year to the business affairs of the Company. The principal
place of business at which the Employee's duties are to be performed shall be
located at or within a ten mile radius of the Company's existing principal
office in Fullerton, California. The Employee may be obliged, from time to
time, and for reasonable periods of time, to travel in the performance of the
Employee's duties.
3. Base Salary. During his employment, for all duties to be
performed by the Employee hereunder, the Employee shall receive an annual base
salary (the "Base Salary") of Two Hundred Fifty Thousand Dollars ($250,000),
payable in accordance with the Company's normal payroll periods (prorated for
any partial calendar year).
4. Benefits. During his employment, the Employee will be
entitled to
EXHIBIT 10.17 Page 1
<PAGE> 2
receive fringe benefits comparable to those generally available to all
employees of the Company (including, without limitation, health insurance for
the Employee and his spouse under the Company's existing health plan or a
comparable health insurance plan and the right of participation in the Company
401(k) retirement savings plan or a comparable retirement plan), reimbursement
for travel and related expenses incurred for the Company's business, the right
to first class domestic airline and business class international airline and
first class hotel accommodations when traveling on Company business,
continuation by the Company during the term of employment of premium payments
on one million dollar life insurance policies for the Employee as presently
constituted, and payment by the Company following retirement or in the event of
pre-retirement death or employment severance of all benefits provided by the
Employee's Supplemental Benefits Plan as presently constituted. In addition,
the Company will continue to cover the Employee and his spouse under the
Company's existing or comparable health plan at no cost to the Employee until
he shall attain the age of 65, notwithstanding the termination of his
employment or this Agreement for any reason prior to attaining that age. Upon
termination of his employment with the Company, ownership of the Employee's
life insurance policy shall be transferred to the Employee subject to the
Company's right to receive certain proceeds as presently specified therein and
the obligation of the Employee to make payment of premiums accruing from and
after the termination of his employment with the Company.
5. Performance Bonus. During his employment, the
Employee will be eligible to participate in an incentive bonus program
providing for a payment to the Employee for each fiscal year of the Company in
which he was employed, commencing with the fiscal year ending December 31,
1995, of not more than $250,000 per year, with the actual amount of such
incentive bonus, if any, to be calculated in accordance with the formula set
forth in Exhibit A attached hereto. Such incentive bonus shall be payable
within 90 days after the end of the fiscal year to which it relates. If the
employment of the Employee is terminated for any reason other than (A) acts of
moral turpitude, or (B) failure on the part of the Employee to provide full
time service to the Company within the meaning of Section 2 above, the Employee
will be eligible to receive that percentage of his incentive bonus attributable
to the full year in which his employment was terminated which is in the same
proportion that the number of months worked during such year bears to twelve
months, but he shall not be entitled to an incentive bonus for any subsequent
year.
6. Confidential Information.
(a) Employee acknowledges that in his position as an
executive officer he has had and shall have access to and knowledge of
confidential information and trade secrets of the Company. Employee covenants
and agrees that he will not at any time, either during or after the term of
this Agreement, except to the extent use or disclosure is required by
applicable laws, or authorized in writing by the Company, directly or
indirectly disclose or furnish to any other person, firm or corporation or use
for his own
EXHIBIT 10.17 Page 2
<PAGE> 3
benefit, gain or otherwise:
(i) any corporate or trade name or trademark of the Company
or its Affiliates for any purpose whatsoever; or
(ii) any and all trade secrets, confidential or proprietary
information (the "Confidential Information") relating to the business
of the Company, including, without limitation, financial statements,
client lists, methods of doing business, manufacturing practices,
techniques and processes, marketing programs and plans, customer and
vendor information, know how, techniques and other data and
information of a proprietary nature, of the Company and/or its
Affiliates. Confidential Information shall not include information
which is public knowledge or which shall become part of the public
domain through no fault of the Employee or which Employee shall be
able to show to have been received from a third party which shall not
itself have received and does not possess the information on a
confidential basis. The parties recognize that the Confidential
Information, whether or not developed by Employee, is the exclusive
property of the Company or its Affiliates.
(b) As used in this Agreement, the term "Affiliate" shall
mean any other corporation or other business entity which directly, or
indirectly through one or more intermediaries, controls, is under common
control with or is controlled by the Company.
7. Covenants Not to Compete or Solicit.
(a) So long as the Employee is employed by the Company and
for a period of seven (7) years thereafter, the Employee shall not, directly or
indirectly, by or for himself or as the agent of another or through others as
his agent:
(i) promote, manufacture, sell, lease, license,
distribute or service anywhere in the world (the "Territory")
products, processes or services in existence or under development,
which are similar to or in competition with those of the Company;
(ii) own, manage, operate, be compensated by,
participate in, render advice to, have any right to or interest in any
other business directly or indirectly engaged in the design,
manufacture, production, sale or distribution of products, processes
or services competitive with those of the Company or any Affiliate
anywhere in the Territory;
(iii) divulge, communicate, use or disclose any
nonpublic information concerning the Company, its businesses and
affairs, including the Confidential Information; or
EXHIBIT 10.17 Page 3
<PAGE> 4
(iv) interfere with the business relationships or
disparage the good name or reputation of the Company or any Affiliate
or take any action which brings the Company or the business of the
Company into public ridicule or disrepute.
(b) So long as the Employee is employed by the Company and
for a period of seven (7) years thereafter, the Employee shall not (except in
connection with the rendering of services hereunder), directly or indirectly,
by or for himself, or as the agent of another, or through another as his agent:
(i) solicit or accept any business from any
customer, purchaser or supplier of the Company; provided, however,
that after the termination of the Employee's employment hereunder, he
may solicit or accept business from such a party as an employee of, or
other adviser to, a business which is not engaged in the design,
manufacture, production, sale or distribution of products, processes
or services competitive with those of the Company or any Affiliate;
(ii) solicit for employment or employ or become
employed by any customer, past, present or future employee of the
Company, or request, induce or advise any employee to leave the employ
of the Company; provided, however, that after the termination of the
Employee's employment hereunder, the Employee may be employed by a
customer or past employee of the Company if such participation is not
enagaged in the design, manufacture, production, sale or distribution
of products, processes or services competitive with those of the
Company or any Affiliate;
(iii) use or disclose the names and/or addresses of
any customer, purchaser, supplier or employee of the Company to any
person for any purposes whatsoever.
(c) If the Employee violates any provision of this Section,
then the Company shall not, as a result of the time involved in obtaining
relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, each restrictive covenant shall be deemed to have the
duration specified in Subsections 7(a) and 7(b) hereof, computed from the date
the relief is granted, but reduced by the time between the period when the
restriction began to run and the date of the first violation of the covenant by
the Employee.
(d) The Employee agrees that if Employee shall violate any of
the provisions of this Section, the Company shall be entitled to an accounting
and repayment of all profits, compensation, remuneration or other benefits that
the Employee, directly or indirectly, may realize arising from or related to
any such violation.
EXHIBIT 10.17 Page 4
<PAGE> 5
These remedies shall be in addition to, and not in limitation of, any
injunctive relief or other rights to which the Company may be entitled.
(e) The parties agree and acknowledge that the duration,
scope and geographic areas applicable to the covenant not to compete described
in this Section are fair, reasonable and necessary, that adequate compensation
has been received by the Employee for such obligations (including compensation
hereunder), and that these obligations do not prevent the Employee from earning
a livelihood. If, however, for any reason any court determines that the
restrictions in this Section 7 are not reasonable, that consideration is
inadequate or that the Employee has been prevented from earning a livelihood,
such restrictions shall be interpreted, modified or rewritten to include as
much of the duration, scope and geographic area identified in this Section as
will render such restrictions valid and enforceable.
(f) Nothing herein shall prohibit the Employee from owning in
the aggregate not more than 1% of the outstanding stock of any corporation
which is publicly traded and engaged in the design, manufacture, production,
sale or distribution of products, processes or services competitive with those
of the Company or any Affiliate, so long as the Employee has no active
participation in the business of such corporation.
8. Consideration for Confidentiality and Noncompetition.
In consideration of the covenants against competition and disclosure of
Confidential Information, the Company shall pay the Employee the aggregate sum
of $1,320,000, payable in equal monthly installments over a term of six years
commencing with the first month after the latter of (A) the last month in which
he was employed, or (B) the last month in which he is entitled to receive
severance payments required under Section 9(a)(ii) below. Such payments shall
be made directly to the employee and in the event of his death or disability
while employed or during such six year term, then to his spouse (and if his
spouse shall not survive, then to his heirs, legatees and devisees) for the
remaining term of such six year payment period and notwithstanding the death or
disability of the Employee.
9. Termination.
(a) Termination by Company.
(i) Notwithstanding any other provision hereof, the
Company may terminate the Employee's employment under this Agreement without
prior notice at any time subject to the provisions of this Section 9. The
termination shall be evidenced by notice thereof to the Employee.
(ii) If the employment of the Employee is terminated
by the Company for any reason or for no reason prior to the expiration of the
term of this
EXHIBIT 10.17 Page 5
<PAGE> 6
Agreement, then the Employee will receive severance payments payable monthly
for the remaining original term of his employment agreement equal to 150% of
the amount of his aggregate base salary for such unexpired term of this
Agreement; provided, however, the Company shall have no obligation to make such
severance payments to the employee if his employment was terminated by reason
of (y) acts of moral turpitude, or (z) failure on the part of the employee to
provide full time service to the Company within the meaning of Section 2 above.
For purposes hereof, the term "acts of moral turpitude" shall include, without
limitation, dishonest, fraudulent or illegal conduct; misappropriation of
Company funds; or breach of any statutory or common law duty of loyalty to the
Company.
(b) Resignation and Retirement. Should the Employee elect to
resign or retire voluntarily prior to the expiration of the original term of
this Agreement, the Employee shall provide at least six months prior written
notice to the Company of the date of his voluntary retirement or resignation
except in the event his retirement or resignation is caused by death or
disability. Except in the event of death or disability, failure to provide
such prior six months notice shall relieve the Company from liability to pay an
incentive bonus for any portion of the year in which he shall retire or resign
and shall also relieve the Company from liability to pay any incentive bonus
for the immediately preceding prior year if the same has accrued but is not yet
payable.
(c) Board Resignation. Upon termination of this Agreement
for any reason, Employee shall hereby be deemed to have resigned from the
Company's Board of Directors effective as of the date of termination.
10. Remedies. The Employee acknowledges that the
confidentiality and non-competition provisions contained in Section 6 and
Section 7 herein are essential to induce the Company to enter into this
Agreement, that any breach thereof will result in serious and irreparable
damage to the Company and that money damages will not afford the Company an
adequate remedy. Therefore, if the Employee breaches any provision of Section
6 or Section 7 herein, the parties agree that the Company shall be entitled, in
addition to all other rights and remedies as may be provided by law, to
specific performance, as well as injunctive and other equitable relief to
prevent or restrain a breach of this Agreement or to enforce this Agreement.
The Company shall also be entitled to seek a protective order to ensure the
continued confidentiality of the Confidential Information. Employee hereby
waives any requirement of proof that such breach will cause serious or
irreparable injury to the Company, or that there is not an adequate remedy at
law. The existence of any claim or cause of action of the Employee against the
Company or any Affiliate, whether or not predicated on the terms of this
Agreement, shall not constitute a defense to the enforcement of the Employee's
obligations under this Agreement. The Employee shall pay or reimburse the
Company for all costs and expenses, including court costs and reasonable
attorneys' fees incurred or paid by the Company in protecting or enforcing its
rights and remedies hereunder.
EXHIBIT 10.17 Page 6
<PAGE> 7
11. Notice. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five (5) days after
deposit in the mail if sent by registered or certified mail; (c) one (1) day
after having been sent by commercial overnight courier as evidenced by the
written verification of receipt; or (d) on the date of confirmation if
telecopied, as set forth below:
To Employee:
C. Richard Roper
1383 North Mustang
Orange, CA 92667
To Company:
Ropak Corporation
660 South State College Blvd.
Fullerton, CA 92631
Telecopy: (714) 447-3871
Attention: Chief Financial Officer
With a copy to:
LINPAC MOULDINGS LIMITED
Deykin Avenue
Witton
Birmingham B6 7HY
ENGLAND
Attention: David Williams
Telecopy : 011-44-021-327-6757
and
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Stanley H. Meadows
Telecopy: (312) 984-3669
Any party may change its address for receiving notice given by written notice
given to the others named above.
EXHIBIT 10.17 Page 7
<PAGE> 8
12. Amendments and Waiver. No amendment, waiver or consent
with respect to any provision of this Agreement shall in any event be
effective, unless the same shall be in writing and signed by the parties
hereto, and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. Failure of
the Company to take action with respect to any breach or violation of any
provision of this Agreement by Employee, whether or not the Company had
knowledge thereof, shall not operate as a waiver of any subsequent breach or
violation by Employee.
13. Counterparts. This Agreement may be executed
simultaneously in two counterparts each of which shall be deemed an original,
but both of which together constitute one and the same instrument.
14. Taxes. The Company shall be entitled to withhold the
amount of any tax attributable to any payments hereunder.
15. Transferability. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and assigns and
Employee, his heirs, executors and legal representatives. Except as expressly
provided herein, in no event is the Employee's right to payments hereunder
assignable in any manner.
16. Assignment. This Agreement is for personal services and
may not be assigned or pledged by Employee in any manner, by operation of law
or otherwise, without the written consent of the Company.
17. Entire Agreement. This Agreement and the documents
referred to herein contain the entire understanding among the parties with
respect to the actions contemplated hereby and supersedes all other agreements,
understandings and undertakings among the parties on the subject matter hereof.
18. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
California, and the parties hereby consent to the jurisdiction of California
courts over all matters relating to this Agreement.
19. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
20. Severability. If any provision of this Agreement shall
be prohibited by or invalid under applicable law, or otherwise determined to be
unenforceable, such provision shall be ineffective to the extent of such
prohibition or invalidity without
EXHIBIT 10.17 Page 8
<PAGE> 9
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
21. Cessation of Obligations. All obligations of the
Company and rights of Employee under this Agreement shall cease upon any
termination of this Agreement, except as otherwise provided herein.
Notwithstanding anything to the contrary in this Agreement, the provisions of
Sections 4, 5, and 9 which by their terms survive termination of employment and
the provisions of Sections 6, 7, 8, 10 and 18 shall survive any termination of
this Agreement or employment and shall remain in full force and effect.
22. Beneficiary. As the purchaser of Employee's equity
interest in the Company, LINPAC MOULDINGS LIMITED shall be entitled to enforce
the provisions of Sections 6, 7 and 10 in the name of the Company and these
Sections and this Section 22 shall not be amended without the prior written
consent of LINPAC MOULDINGS LIMITED.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
ROPAK CORPORATION
By: /S/ WILLIAM H. ROPER
Its Chairman
/S/ C. RICHARD ROPER
C. Richard Roper
EXHIBIT 10.17 Page 9
<PAGE> 10
EXHIBIT A
FORMULA FOR INCENTIVE COMPENSATION
1. In each year during the term of full time employment as
defined in the employee's employment agreement, incentive compensation shall be
paid to the Employee if Company Adjusted Earnings for such year (as defined
below) exceeds that year's Target Base (as defined below). If the Company's
Adjusted Earnings for the year shall exceed that year's Target Base, each
eligible employee's incentive compensation shall be 9.26% of the amount by
which Company Adjusted Earnings for the year exceeds the Target Base for the
year, but in no event shall each eligible employee's incentive compensation for
any year exceed the sum of $250,000.
2. Certain Definitions.
(a) "Company Adjusted Earnings" shall mean the Company's income from
operations determined in accordance with generally accepted accounting
principles consistently applied after audit by its independent public
accountants (which shall be a firm of recognized national standing), and then
adjusted as follows. In calculating Company Adjusted Earnings, there shall be
excluded from income or loss: (i) any extraordinary gains and losses from the
sale of intangible or capital assets; (ii) any gains or losses unrelated to
the current year's operations of the Company and its consolidated subsidiaries;
(iii) any corporate charges of LinPac allocated to the Company; (iv) provision
for federal, provincial, state and local taxes based upon income or profits of
the Company and its consolidated subsidiaries; and (v) any accruals or
provisions for incentive compensation for executive and management employees of
the Company, including without limitation the incentive compensation
contemplated by this Agreement. The Company Adjusted Earnings shall be
determined by the Company's Chief Financial Officer after receipt of audited
financial statements from the Company's independent public accountants. THE
PARTIES AGREE THAT COMPANY ADJUSTED EARNINGS FOR THE YEAR 1994 SHALL BE
$7,156,000.
(b) "Target Base" in each year shall mean:
(i) for the fiscal year ended December 31, 1995 =
$7,871,000. This equals the product, rounded down to
the nearest thousand, obtained by multiplying 1.1 by
actual Company Adjusted Earnings of $7,156,000 for
the fiscal year ended December 31, 1994. THE RESULT
OF $7,871,000 IS CALLED THE "1995 TARGET BASE".
(ii) for the fiscal year ended December 31, 1996 =
$11,628,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1995 Target Base plus $2,700,000). THE
RESULT OF $11,628,000 IS CALLED THE "1996 TARGET
BASE".
EXHIBIT 10.17 Page 10
<PAGE> 11
(iii) for the fiscal year ended December 31, 1997 =
$15,760,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1996 Target Base plus $2,700,000). THE
RESULT OF $15,760,000 IS CALLED THE "1997 TARGET
BASE".
(iv) for the fiscal year ended December 31, 1998 =
$20,306,000. This equals the product, rounded down
to the nearest thousand, obtained by multiplying 1.1
by (the 1997 Target Base plus $2,700,000). THE
RESULT OF $20,306,000 IS CALLED THE "1998 TARGET
BASE".
EXAMPLE OF APPLICATION OF FORMULA FOR INCENTIVE COMPENSATION:
The 1995 TARGET BASE is $7,871,000 [$7,156,000 x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1995 Company Adjusted Earnings, or any part thereof, to the
extent 1995 Company Adjusted Earnings exceeds $7,871,000.
The 1996 TARGET BASE is $11,628,000 [($7,871,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1996 Company Adjusted Earnings, or any part thereof, to the
extent 1996 Company Adjusted Earnings exceeds $11,628,000.
The 1997 TARGET BASE is $15,760,000 [($11,628,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1997 Company Adjusted Earnings, or any part thereof, to the
extent 1997 Company Adjusted Earnings exceeds $15,760,000.
The 1998 TARGET BASE is $20,306,000 [($15,760,000 + 2,700,000) x 1.1]
As a result, the Employee will receive 9.26% of the first $2,700,000
in actual 1998 Company Adjusted Earnings, or any part thereof, to the
extent 1998 Company Adjusted Earnings exceeds $20,306,000.
EXHIBIT 10.17 Page 11
<PAGE> 1
CONTINUING GUARANTY
This AGREEMENT made as of the 20th day of February, 1995 is by and
between LINPAC MOULDINGS LIMITED, with its principal office at Deykin Avenue,
Witton, Birmingham B6 7HY, England (the "Guarantor") and C. RICHARD ROPER, an
individual ("Roper").
WHEREAS, Roper owned a substantial equity position in ROPAK
CORPORATION, a Delaware corporation (the "Employer") which he sold to the
Guarantor concurrent with the execution of this Agreement; and
WHEREAS, Roper and the Employer have executed that certain Employment
Agreement dated as of January 1, 1995 (the "Employment Agreement") in order to
assure Employer with access to Roper's experience and to bind Roper to certain
noncompetition and other covenants which are expressly enforceable by the
Guarantor; and
WHEREAS, to induce Roper to enter into the foregoing agreements and to
sell his equity position in the Employer to the Guarantor, the parties have
agreed to enter into this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto covenant and agree as follows:
The Guarantor hereunder unconditionally and absolutely guarantees the
full and prompt payment when due to, and collection by, Roper and (in the event
of his death or disability) to his successors and assigns, of all sums due and
payable and to become due and payable to Roper under the provisions of the
Employment Agreement. The Guarantor's obligations hereunder (i) are absolute
and unconditional, and (ii) constitute a guaranty of payment and not merely a
guaranty of collection.
If the Employer should breach any of its obligations under the
Employment Agreement to Roper or otherwise be incapable of making payments of
its obligations thereunder when due, and such breach or nonpayment thereof
remains uncured by the Employer for more than ten (10) business days after the
Employer and the Guarantor have received written notice of breach or nonpayment
from Roper, then the Guarantor shall forthwith pay or cause to be paid to Roper
all sums then due and past due under the terms of the Employment Agreement.
The Guarantor hereby waives notice of the acceptance of this Guaranty
by Roper and the Guarantor hereby consents without further notice to (i) any
extension of time that may be given by Roper to the Employer for payment or
performance under the Employment Agreement or (ii) any failure, omission or
delay on the part of Roper, whether intentional or unintentional, in enforcing,
assenting to or exercising any right, remedy or power of Roper under the
Employment Agreement or this Agreement.
EXHIBIT 10.18 Page 1
<PAGE> 2
Notwithstanding anything to the contrary set forth herein, the
Guarantor shall be subrogated to the rights of the Employer under the
Employment Agreement and may assert any defense to a claim hereunder that could
be asserted by the Employer under the terms of the Employment Agreement. The
Employment Agreement shall not be modified or amended by Roper and the Employer
in any material respects without the prior consent in writing of the Guarantor.
If an action is brought by either party to enforce its rights
hereunder, the prevailing party shall be entitled to recover, in addition to
such other relief as may be granted, its reasonable costs and attorney's fees.
This Agreement is governed by and shall be construed in accordance
with the laws of the State of California. The parties to this agreement submit
to the jurisdiction of the Superior Court of the County of Orange, State of
California in the event any action shall be brought by Roper or the Guarantor
hereunder.
IN WITNESS WHEREOF, this Guaranty has been executed and delivered by
the undersigned as of the day and year first written above.
"Guarantor" LINPAC MOULDINGS LIMITED
By: /S/ DAVID A. WILLIAMS
Title: ____________________________
"Roper"
/S/ C. RICHARD ROPER
C. RICHARD ROPER
EXHIBIT 10.18 Page 2
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated January 18, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and WILLIAM H. ROPER (the
"Indemnified Party").
WHEREAS, the Indemnified Party has acted, and may continue to act,
as a member of the Board of Directors of the Company; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate counsel, or (b) the
Company shall have failed to assume the defense of such action within a
reasonable time after notice from the Indemnified Party, or (c) the named
parties to any such
EXHIBIT 10.19 Page 1
<PAGE> 2
action or proceeding (including any impleaded parties) include both the
Indemnified Party and the Company and the Indemnified Party shall have been
advised in writing by counsel that there may be one or more legal defenses
available to the Indemnified Party which are different from or additional to
those available to the Company, in which case the Indemnified Party may elect
in writing to employ separate counsel reasonably acceptable to the Company at
the expense of the Company (after which the Company shall not have the right to
defense of such action or proceeding on behalf of such Indemnified Party), it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time. The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent (which shall not be
unreasonably withheld), but if any such action or proceeding is settled with
its written consent, the Company agrees to indemnify and hold harmless the
Indemnified Party from and against any loss, claim, damage, or liability (to
the extent stated above) by reason of such settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.19 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ ROBERT E. ROPER
ROBERT E. ROPER
PRESIDENT
"Indemnified Party" /S/ WILLIAM H. ROPER
WILLIAM H. ROPER
EXHIBIT 10.19 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated January 18, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and ROBERT E. ROPER (the
"Indemnified Party").
WHEREAS, the Indemnified Party has acted, and may continue to act,
as a member of the Board of Directors of the Company; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate counsel, or (b) the
Company shall have failed to assume the defense of such action within a
reasonable time after notice from the Indemnified Party, or (c) the named
parties to any such
EXHIBIT 10.20 Page 1
<PAGE> 2
action or proceeding (including any impleaded parties) include both the
Indemnified Party and the Company and the Indemnified Party shall have been
advised in writing by counsel that there may be one or more legal defenses
available to the Indemnified Party which are different from or additional to
those available to the Company, in which case the Indemnified Party may elect
in writing to employ separate counsel reasonably acceptable to the Company at
the expense of the Company (after which the Company shall not have the right to
defense of such action or proceeding on behalf of such Indemnified Party), it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time. The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent (which shall not be
unreasonably withheld), but if any such action or proceeding is settled with
its written consent, the Company agrees to indemnify and hold harmless the
Indemnified Party from and against any loss, claim, damage, or liability (to
the extent stated above) by reason of such settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.20 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ ROBERT E. ROPER
ROBERT E. ROPER
EXHIBIT 10.20 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated January 18, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and C. RICHARD ROPER (the
"Indemnified Party").
WHEREAS, the Indemnified Party has acted, and may continue to act,
as a member of the Board of Directors of the Company; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate counsel, or (b) the
Company shall have failed to assume the defense of such action within a
reasonable time after notice from the Indemnified Party, or (c) the named
parties to any such
EXHIBIT 10.21 Page 1
<PAGE> 2
action or proceeding (including any impleaded parties) include both the
Indemnified Party and the Company and the Indemnified Party shall have been
advised in writing by counsel that there may be one or more legal defenses
available to the Indemnified Party which are different from or additional to
those available to the Company, in which case the Indemnified Party may elect
in writing to employ separate counsel reasonably acceptable to the Company at
the expense of the Company (after which the Company shall not have the right to
defense of such action or proceeding on behalf of such Indemnified Party), it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time. The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent (which shall not be
unreasonably withheld), but if any such action or proceeding is settled with
its written consent, the Company agrees to indemnify and hold harmless the
Indemnified Party from and against any loss, claim, damage, or liability (to
the extent stated above) by reason of such settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.21 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ C. RICHARD ROPER
C. RICHARD ROPER
EXHIBIT 10.21 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated January 18, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and DOUGLAS H. MACDONALD
(the "Indemnified Party").
WHEREAS, the Indemnified Party has acted, and may continue to act,
as a member of the Board of Directors of the Company and has served on
committees of the Board of Directors including, without limitation, a Special
Committee formed in September and October 1994 as described in minutes of
proceedings of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the
EXHIBIT 10.22 Page 1
<PAGE> 2
defense thereof if: (a) the Indemnified Party shall pay the fees and expenses
of such separate counsel, or (b) the Company shall have failed to assume the
defense of such action within a reasonable time after notice from the
Indemnified Party, or (c) the named parties to any such action or proceeding
(including any impleaded parties) include both the Indemnified Party and the
Company and the Indemnified Party shall have been advised in writing by counsel
that there may be one or more legal defenses available to the Indemnified Party
which are different from or additional to those available to the Company, in
which case the Indemnified Party may elect in writing to employ separate
counsel reasonably acceptable to the Company at the expense of the Company
(after which the Company shall not have the right to defense of such action or
proceeding on behalf of such Indemnified Party), it being understood, however,
that the Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time. The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent (which shall not be
unreasonably withheld), but if any such action or proceeding is settled with
its written consent, the Company agrees to indemnify and hold harmless the
Indemnified Party from and against any loss, claim, damage, or liability (to
the extent stated above) by reason of such settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.22 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ DOUGLAS H. MACDONALD
DOUGLAS H. MACDONALD
EXHIBIT 10.22 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated January 18, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and TERRY L. NAGELVOORT
(the "Indemnified Party").
WHEREAS, the Indemnified Party has acted, and may continue to act,
as a member of the Board of Directors of the Company and has served on
committees of the Board of Directors including, without limitation, a Special
Committee formed in September and October 1994 as described in minutes of
proceedings of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the
EXHIBIT 10.23 Page 1
<PAGE> 2
defense thereof if: (a) the Indemnified Party shall pay the fees and expenses
of such separate counsel, or (b) the Company shall have failed to assume the
defense of such action within a reasonable time after notice from the
Indemnified Party, or (c) the named parties to any such action or proceeding
(including any impleaded parties) include both the Indemnified Party and the
Company and the Indemnified Party shall have been advised in writing by counsel
that there may be one or more legal defenses available to the Indemnified Party
which are different from or additional to those available to the Company, in
which case the Indemnified Party may elect in writing to employ separate
counsel reasonably acceptable to the Company at the expense of the Company
(after which the Company shall not have the right to defense of such action or
proceeding on behalf of such Indemnified Party), it being understood, however,
that the Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time. The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent (which shall not be
unreasonably withheld), but if any such action or proceeding is settled with
its written consent, the Company agrees to indemnify and hold harmless the
Indemnified Party from and against any loss, claim, damage, or liability (to
the extent stated above) by reason of such settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.23 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ TERRY L. NAGELVOORT
TERRY L. NAGELVOORT
EXHIBIT 10.23 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated January 18, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and JOHN H. STAFFORD (the
"Indemnified Party").
WHEREAS, the Indemnified Party has acted, and may continue to act,
as a member of the Board of Directors of the Company and has served on
committees of the Board of Directors including, without limitation, a Special
Committee formed in September and October 1994 as described in minutes of
proceedings of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate
EXHIBIT 10.24 Page 1
<PAGE> 2
counsel, or (b) the Company shall have failed to assume the defense of such
action within a reasonable time after notice from the Indemnified Party, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both the Indemnified Party and the Company and the Indemnified
Party shall have been advised in writing by counsel that there may be one or
more legal defenses available to the Indemnified Party which are different from
or additional to those available to the Company, in which case the Indemnified
Party may elect in writing to employ separate counsel reasonably acceptable to
the Company at the expense of the Company (after which the Company shall not
have the right to defense of such action or proceeding on behalf of such
Indemnified Party), it being understood, however, that the Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time. The Company shall not
be liable for any settlement of any such action or proceeding effected without
its written consent (which shall not be unreasonably withheld), but if any such
action or proceeding is settled with its written consent, the Company agrees
to indemnify and hold harmless the Indemnified Party from and against any loss,
claim, damage, or liability (to the extent stated above) by reason of such
settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.24 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ JOHN H. STAFFORD
JOHN H. STAFFORD
EXHIBIT 10.24 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated January 18, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and DAVID A. WILLIAMS (the
"Indemnified Party").
WHEREAS, the Indemnified Party has acted, and may continue to act,
as a member of the Board of Directors of the Company and has served on
committees of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate counsel, or (b) the
Company shall have failed to assume the defense of such action within a
EXHIBIT 10.25 Page 1
<PAGE> 2
reasonable time after notice from the Indemnified Party, or (c) the named
parties to any such action or proceeding (including any impleaded parties)
include both the Indemnified Party and the Company and the Indemnified Party
shall have been advised in writing by counsel that there may be one or more
legal defenses available to the Indemnified Party which are different from or
additional to those available to the Company, in which case the Indemnified
Party may elect in writing to employ separate counsel reasonably acceptable to
the Company at the expense of the Company (after which the Company shall not
have the right to defense of such action or proceeding on behalf of such
Indemnified Party), it being understood, however, that the Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time. The Company shall not
be liable for any settlement of any such action or proceeding effected without
its written consent (which shall not be unreasonably withheld), but if any such
action or proceeding is settled with its written consent, the Company agrees
to indemnify and hold harmless the Indemnified Party from and against any loss,
claim, damage, or liability (to the extent stated above) by reason of such
settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.25 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ DAVID A. WILLIAMS
DAVID A. WILLIAMS
EXHIBIT 10.25 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated February 1, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and JOHN L. DOUGHTY (the
"Indemnified Party").
WHEREAS, the Indemnified Party has been elected to act, and may
continue to act, as a member of the Board of Directors of the Company and
may be elected to serve on committees of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate counsel, or (b) the
Company shall have failed to assume the defense of such action within a
EXHIBIT 10.26 Page 1
<PAGE> 2
reasonable time after notice from the Indemnified Party, or (c) the named
parties to any such action or proceeding (including any impleaded parties)
include both the Indemnified Party and the Company and the Indemnified Party
shall have been advised in writing by counsel that there may be one or more
legal defenses available to the Indemnified Party which are different from or
additional to those available to the Company, in which case the Indemnified
Party may elect in writing to employ separate counsel reasonably acceptable to
the Company at the expense of the Company (after which the Company shall not
have the right to defense of such action or proceeding on behalf of such
Indemnified Party), it being understood, however, that the Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time. The Company shall not
be liable for any settlement of any such action or proceeding effected without
its written consent (which shall not be unreasonably withheld), but if any such
action or proceeding is settled with its written consent, the Company agrees
to indemnify and hold harmless the Indemnified Party from and against any loss,
claim, damage, or liability (to the extent stated above) by reason of such
settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.26 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ JOHN L. DOUGHTY
JOHN L. DOUGHTY
EXHIBIT 10.26 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated February 1, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and ROBERT ALEXANDER LANG
(the "Indemnified Party").
WHEREAS, the Indemnified Party has been elected to act, and may
continue to act, as a member of the Board of Directors of the Company and
may be elected to serve on committees of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate
EXHIBIT 10.27 Page 1
<PAGE> 2
counsel, or (b) the Company shall have failed to assume the defense of such
action within a reasonable time after notice from the Indemnified Party, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both the Indemnified Party and the Company and the Indemnified
Party shall have been advised in writing by counsel that there may be one or
more legal defenses available to the Indemnified Party which are different from
or additional to those available to the Company, in which case the Indemnified
Party may elect in writing to employ separate counsel reasonably acceptable to
the Company at the expense of the Company (after which the Company shall not
have the right to defense of such action or proceeding on behalf of such
Indemnified Party), it being understood, however, that the Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time. The Company shall not
be liable for any settlement of any such action or proceeding effected without
its written consent (which shall not be unreasonably withheld), but if any such
action or proceeding is settled with its written consent, the Company agrees
to indemnify and hold harmless the Indemnified Party from and against any loss,
claim, damage, or liability (to the extent stated above) by reason of such
settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.27 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ ROBERT A. LANG
ROBERT ALEXANDER LANG
EXHIBIT 10.27 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated February 1, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and NIGEL VICTOR DAVID ROE
(the "Indemnified Party").
WHEREAS, the Indemnified Party has been elected to act, and may
continue to act, as a member of the Board of Directors of the Company and
may be elected to serve on committees of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate
EXHIBIT 10.28 Page 1
<PAGE> 2
counsel, or (b) the Company shall have failed to assume the defense of such
action within a reasonable time after notice from the Indemnified Party, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both the Indemnified Party and the Company and the Indemnified
Party shall have been advised in writing by counsel that there may be one or
more legal defenses available to the Indemnified Party which are different from
or additional to those available to the Company, in which case the Indemnified
Party may elect in writing to employ separate counsel reasonably acceptable to
the Company at the expense of the Company (after which the Company shall not
have the right to defense of such action or proceeding on behalf of such
Indemnified Party), it being understood, however, that the Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time. The Company shall not
be liable for any settlement of any such action or proceeding effected without
its written consent (which shall not be unreasonably withheld), but if any such
action or proceeding is settled with its written consent, the Company agrees
to indemnify and hold harmless the Indemnified Party from and against any loss,
claim, damage, or liability (to the extent stated above) by reason of such
settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.28 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ NIGEL V. ROE
NIGEL VICTOR DAVID ROE
EXHIBIT 10.28 Page 3
<PAGE> 1
INDEMNIFICATION AGREEMENT
This Agreement dated February 1, 1995 by and between ROPAK
CORPORATION, a Delaware corporation (the "Company") and JOHN THORP (the
"Indemnified Party").
WHEREAS, the Indemnified Party has been elected to act, and may
continue to act, as a member of the Board of Directors of the Company and
may be elected to serve on committees of the Board of Directors; and
WHEREAS, in consideration of such services, and pursuant to authority
of its Board of Directors, the Company has agreed to enter into this Agreement
and to amend its By-Laws to incorporate the following provisions into the By-
Laws of the Company:
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the Company's certificate of incorporation, the Company
hereby agrees to indemnify and hold harmless the Indemnified Party against any
and all losses, claims, damages, judgments, liabilities or costs, including
related attorneys' fees and other costs of investigation, preparation, defense
and providing evidence, whether or not in connection with litigation in which
the Indemnified Party is a party, as and when such losses, claims, damages,
judgments, liabilities or costs are incurred, which are directly or indirectly
caused by, relating to, based upon or arising out of any act or omission on the
part of the Indemnified Party in his capacity as a director, agent or fiduciary
of the Company or in connection with any transactions undertaken as a result of
such relationships, including without limitation any actions taken or decisions
made as a director or as a member of any committee of the Board of Directors
with respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
Company to advance expenses pursuant hereto shall be subject to the condition
that if, when and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed) to the
effect that the Indemnified Party is not permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by the
Indemnified Party (who, with reference to Section 9(a) of Article Sixth of the
Company's certificate of incorporation, hereby agrees to so reimburse the
Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the Company in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the Company hereunder, and (subject to clause (c) below) the
Company shall promptly assume the defense thereof with counsel of the Company's
choice reasonably acceptable to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof if: (a) the Indemnified
Party shall pay the fees and expenses of such separate counsel, or (b) the
Company shall have failed to assume the defense of such action within a
EXHIBIT 10.29 Page 1
<PAGE> 2
reasonable time after notice from the Indemnified Party, or (c) the named
parties to any such action or proceeding (including any impleaded parties)
include both the Indemnified Party and the Company and the Indemnified Party
shall have been advised in writing by counsel that there may be one or more
legal defenses available to the Indemnified Party which are different from or
additional to those available to the Company, in which case the Indemnified
Party may elect in writing to employ separate counsel reasonably acceptable to
the Company at the expense of the Company (after which the Company shall not
have the right to defense of such action or proceeding on behalf of such
Indemnified Party), it being understood, however, that the Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time. The Company shall not
be liable for any settlement of any such action or proceeding effected without
its written consent (which shall not be unreasonably withheld), but if any such
action or proceeding is settled with its written consent, the Company agrees
to indemnify and hold harmless the Indemnified Party from and against any loss,
claim, damage, or liability (to the extent stated above) by reason of such
settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the losses, claims, damages, judgments,
liabilities or costs to which the Indemnified Parties may be subject in
accordance with the relative benefits received by, and the relative fault of,
the Company in connection with the statements, acts or omissions which resulted
in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the Company agrees to
compensate the Indemnified Party at the per diem rate of $600 per day for each
day or portion of a day devoted to attendance at depositions or as a witness at
trial. The Company shall have no obligation to compensate the Indemnified
Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the Company and the Indemnified Party; (ii) inure to the benefit of
any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
6. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to Delaware
principles of conflicts of laws.
EXHIBIT 10.29 Page 2
<PAGE> 3
IN WITNESS WHEREAS, this Agreement has been executed by the parties
hereto on the date first written above.
"Company" ROPAK CORPORATION
BY: /S/ WILLIAM H. ROPER
WILLIAM H. ROPER,
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
"Indemnified Party" /S/ JOHN THORP
JOHN THORP
EXHIBIT 10.29 Page 3
<PAGE> 1
As Amended February 24, 1994
ROPAK CORPORATION
1988 INCENTIVE STOCK OPTION PLAN
1. Purpose of the Plan. The purpose of the Ropak Corporation
1988 Incentive Stock Option Plan ("Plan") is to encourage ownership of the
common stock of Ropak Corporation, a Delaware corporation ("Company"), by
eligible key employees, directors and officers of the Company and its
subsidiaries and to provide increased incentive for such employees to render
services to the Company and its subsidiaries in the future and to exert maximum
effort for the success of the business of the Company and its subsidiaries.
2. Definitions. As used herein, and in any Option granted
hereunder, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of Ropak Corporation.
(b) "Common Stock" shall mean the Common Stock of Ropak
Corporation.
(c) "Company" shall mean Ropak Corporation.
(d) "Committee" shall mean a Committee of two or more members of
the Board which shall be composed of only disinterested directors of the
Company as defined in Rule 16-3(c)(2) promulgated under the Securities Exchange
Act of 1934 ("Exchange Act") who have not, during their period of service on
the Committee and during the period of 12 months prior to service on the
Committee, received an option to acquire or purchase equity securities of the
Company or any of its affiliates under the Plan or under any other stock option
or other stock incentive plan of the Company and its affiliates except for
participation in a plan expressly permitted under the provisions of subsection
(i) of Rule 16-3(c)(2) promulgated under the Exchange Act.
(e) "Continuous Employment" or "Continuous Status as an Employee"
shall mean the absence of any interruption or termination of employment by the
Company or any Subsidiary. Continuous Employment shall not be considered
interrupted in the case of sick leave, military leave or any other leave of
absence approved by the Company or in the case of transfers between locations
of the Company or between the Company, its Subsidiaries or its successor.
(f) "Employee" shall mean any person, including officers,
directors, employees and consultants employed by the Company or any Subsidiary.
(g) "Incentive Stock Option" shall mean any option granted under
this Plan after January 1, 1988 and any other option granted to an Employee in
accordance with the provisions of Section 422A of the Internal Revenue Code of
1954, as amended from time to time including, without limitation, the
amendments contemplated by Public Law 97-34 (8-31-81) and by the Tax Reform
Act of 1986 (herein called the "Code").
(h) "Option" shall mean a stock option granted pursuant to the
Plan.
(i) "Optioned Shares" shall mean the Common Stock subject to an
Option granted pursuant to the Plan.
(j) "Optionee" shall mean an Employee who receives an Option under
the Plan.
(k) "Plan" shall mean this 1988 Incentive Stock Option Plan.
EXHIBIT 10.30 Page 1
<PAGE> 2
(l) "Share" shall mean a share of the Common Stock, as adjusted in
accordance with Section 6(i) of the Plan.
(m) "Subsidiary" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, at the time of
the granting of the Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50 percent or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
(n) Pronouns. The masculine pronoun shall include the feminine
and neuter, and the singular shall include the plural, where the context so
indicates.
3. Administration of the Plan.
(a) Procedure. The Plan shall be administered by the Board. The
Board may appoint a Committee consisting of not less than three members of the
Board to administer the Plan on behalf of the Board, subject to such terms and
conditions as the Board may prescribe. Once appointed, the Committee shall
continue to serve until otherwise directed by the Board. From time to time,
the Board may increase the size of the Committee and appoint additional members
thereof, remove members (with or without cause) and appoint new members in
substitutions therefore, fill vacancies, however caused, and remove all members
of the Committee and, thereafter, directly administer the Plan.
Members of the Board or Committee who are either eligible for Options
or have been granted Options may vote on any matters affecting the
administration of the Plan or the grant of any Options pursuant to the Plan
except that no such member shall act upon the granting of an Option to himself,
but any such member may be counted in determining the existence of a quorum at
any meeting of the Board or the Committee during which action is taken with
respect to the granting of an Option to him.
(b) Powers of the Committee. Subject to the provisions of the
Plan, the Committee shall have the authority: (i) to determine, upon review of
relevant information, the fair market value of the Common Stock; (ii) to
determine the exercise price of Options to be granted, the Employees to whom
and the time or times at which Options shall be granted, and the number of
Shares to be represented by each Option; (iii) to interpret the Plan; (iv) to
prescribe, amend and rescind rules and regulations relating to the Plan, (v) to
determine the terms and provisions of each Option granted under the Plan (which
need not be identical) and, with the consent of the holder thereof, to modify
or amend any Option; (vi) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option previously
granted by the Committee, and (vii) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) Effect of Committee's Decision. All decisions, determinations
and interpretations of the Committee shall be final and binding on all
Optionees and any other holders of any Options granted under the Plan.
4. Stock Reserved for the Plan. Subject to adjustment as
provided in paragraph 6(i) hereof and to the provisions of Section 9 hereof, a
total of 200,000 shares of Common Stock shall be subject to the Plan. The
Shares subject to the Plan shall consist of unissued shares or previously
issued shares reacquired and held by the Company, and such amount of shares
shall be and is hereby reserved for sale for such purpose. Any of such shares
which may remain unsold and which are not subject to outstanding options at the
termination of the Plan shall cease to be reserved for the purpose of the Plan,
but until termination of the Plan the Company shall at all times reserve a
sufficient number of shares to meet the requirements of the Plan. Should any
option expire or be cancelled prior to its exercise in full, the shares
theretofore subject to such option may again be made subject to an option under
the Plan.
EXHIBIT 10.30 Page 2
<PAGE> 3
5. Eligibility.
(a) Options under the Plan may be granted only to Employees for a
reason connected with their employment by the Company or any Subsidiary. An
Employee who has been granted an option, if he or she is otherwise eligible,
may be granted an additional Option or Options.
(b) The aggregate fair market value (determined at the time the
option is granted) of the stock with respect to which Incentive Stock Options
are exercisable for the first time by an optionee during any calendar year
(under all Incentive Stock Options plans of the Company and its Subsidiaries)
shall not exceed $100,000.
The Plan shall not confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with his right or the Company's right to terminate his employment at any time.
6. Terms and Conditions. Each option granted under the Plan
shall be evidenced by an agreement, in a form approved by the Committee, which
shall be subject to the following express terms and conditions and to such
other terms and conditions as the Committee may deem appropriate.
(a) Option Period. Each option agreement shall specify the period
for which the option thereunder is granted (which in no event shall exceed ten
years from the date of grant) and shall provide that the option shall expire at
the end of such period.
(b) Option Price. The purchase price of each share of Common
Stock subject to each option granted pursuant to the Plan shall be determined
by the Committee at the time the option is granted and shall not be less than
the fair market value of a share of Common Stock on the date the option is
granted, as determined by the Committee. If the optionee owns more than ten
percent (10%) of the outstanding stock of the Company (determined in accordance
with Section 425(d) of the Internal Revenue Code) on the date the option is
granted to him, the option price shall not be less than 110% of the fair market
value of a share of Common Stock on such date.
(c) Exercise Period. No part of any option may be exercised until
the optionee shall have remained in the employ of the Company or any of its
subsidiaries for such period after the date on which the option is granted as
the Committee may specify in the option agreement.
(d) Procedure for Exercise. Options shall be exercised by the
delivery of written notice to the Company setting forth the number of shares
with respect to which the option is to be exercised. An option may not be
exercised for fractional shares. Unless stock of the Company is used to
acquire such shares in accordance with paragraph 6(k), such notice shall be
accompanied by cash or certified check, bank draft, or postal or express money
order payable to the order of the Company for an amount equal to the option
price of such shares and specifying the address to which the certificates for
such shares are to be mailed. As promptly as practicable after receipt of such
written notification and payment, the Company shall deliver to the optionee
certificates for the number of shares with respect to which such option has
been so exercised, issued in the optionee's name; provided, however, that such
delivery shall be deemed effected for all purposes when a stock transfer agent
of the Company shall have deposited such certificates in the United States
mail, addressed to the optionee, at the address specified pursuant to this
paragraph 6(d). Until the issuance of the stock certificates, no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to the optioned shares.
(e) Termination of Employment. If an employee to whom an option
has been granted ceases to be employed by the Company or any of its
subsidiaries for any reason other than death or disability, the options granted
to him shall thereupon terminate. Any options which are exercisable on the
date of such termination of employment may be exercised during a three month
period beginning on such date.
EXHIBIT 10.30 Page 3
<PAGE> 4
(f) Disability or Death of Optionee. In the event of the
disability or death of the holder of an option under the Plan while he is
employed by the Company or any of its subsidiaries, the options previously
granted to him may be exercised (to the extent he would have been entitled to
do so at the date of his disability or death) at any time and from time to
time, within a period of one year after his disability or death, by the former
employee, by the executor or administrator of his estate or by the person or
persons to whom his rights under the option shall pass by will or the laws of
descent and distribution, but in no event may the option be exercised after its
expiration. An employee shall be deemed to be disabled if, in the opinion of a
physician selected by the Committee, he is incapable of performing services for
the Company or any of its subsidiaries by reason of any medically determinable
physical or mental impairment which can be expected to result in death or to be
of long, continued and indefinite duration.
(g) No Rights as Stockholder. No optionee shall have any rights
as a stockholder with respect to shares covered by an option until the date of
issuance of a stock certificate for such shares; except as provided in
paragraph 6(i), no adjustment for dividends, or otherwise, shall be made if the
record date therefore is prior to the date of issuance of such certificate.
(h) Extraordinary Corporate Transactions. If the Company is
dissolved or liquidated, or is merged or consolidated into or with another
corporation, other than by a merger or consolidation in which the Company is
the surviving corporation, the then exercisable but unexercised options granted
under the Plan shall not be exercisable after the date of such dissolution,
liquidation, merger or consolidation, unless such other surviving corporation
makes provision for adoption of the Plan and the assumption of the Company's
obligations thereunder.
(i) Changes in Company's Capital Structure. The existence of
outstanding options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalization, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or
any issuance of Common Stock or subscription rights thereto, or any issuance of
bonds, debentures, preferred or prior preference stock ahead of or affecting
the Common Stock or the rights thereof, or the dissolution or liquidation of
the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, whether of a similar
character or otherwise. Provided, however, that if the outstanding shares of
Common Stock of the Company shall at any time be changed or exchanged by
declaration of a stock dividend, stock split, combination of shares, or
recapitalization, the number and kind of shares subject to the Plan or subject
to any options theretofore granted, and the option prices, shall be
appropriately and equitably adjusted so as to maintain the proportionate number
of shares without changing the aggregate option price.
(j) Investment Representation. Each option agreement shall
contain an agreement that, upon demand by the Committee for such a
representation, the optionee (or any person acting under paragraph 6(f)) shall
deliver to the Committee at the time of any exercise of an option a written
representation that the shares to be acquired upon such exercise are to be
acquired for investment and not for resale or with a view to the distribution
thereof. Upon such demand, delivery of representation prior to the delivery of
any shares issued upon exercise of an option and prior to the expiration of the
option period shall be a condition precedent to the right of the optionee or
such other person to purchase any shares.
(k) Payment with Stock. Subject to approval of the Committee, an
employee may pay for any shares of Common Stock with respect to which an option
has been exercised by tendering to the Company other shares of Common Stock at
the time of the exercise of such option, provided, however, that at the time of
such exercise, the Company shall have a Committee consisting of three (3) or
more disinterested directors who shall approve the payment for option shares
with other shares. The certificates representing such other shares of Common
Stock must be accompanied by a stock power duly executed with signature
guaranteed. The value of Common Stock so tendered shall be determined by the
Committee in its sole discretion. The Committee may, in its sole and absolute
discretion, refuse any tender of shares of Common Stock, in which case it shall
deliver the tendered shares of Common Stock back to the employee and notify the
employee of
EXHIBIT 10.30 Page 4
<PAGE> 5
such refusal. In order to preserve his rights under any option, the employee
must, within three business days after such notification, tender to the Company
the cash required to pay for the shares of Common Stock with respect to which
such option is being exercised.
(l) Options Not Transferable. No Option or interest or right
therein or part thereof shall be liable for the debts, contracts or engagements
of the Optionee or his successors in interest or shall be subject to
disposition by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy) and any
attempted disposition thereof shall be null and void and of no effect;
provided, however, that nothing in this Section 6(l) shall prevent transfers by
will or by the applicable laws of descent and distribution.
(m) SIX MONTH RESTRICTION ON SALE OR DISPOSITION. NO PART OF ANY
SHARES ACQUIRED ON EXERCISE OF AN OPTION GRANTED UNDER THE PLAN MAY BE SOLD OR
OTHERWISE DISPOSED OF BY AN OPTIONEE UNTIL THE EXPIRATION OF AT LEAST SIX
MONTHS FOLLOWING THE DATE ON WHICH SUCH OPTION SO EXERCISED WAS ORIGINALLY
GRANTED BY THE COMPANY. IN THE EVENT AN OPTION IS EXERCISED WITHIN SIX MONTHS
OF ITS DATE OF GRANT, THE SECURITIES EVIDENCING THE SHARES MAY BEAR A LEGEND
REFERRING TO THE RESTRICTIONS SET FORTH IN THIS SECTION.
7. Amendments or Termination. The Board of Directors may amend,
alter or discontinue the Plan, but no amendment or alteration shall be made
which would impair the rights of any participant under any option theretofore
granted without his consent, or which without the approval of the shareholders,
would: (i) except as is provided in paragraph 6(i) of the Plan, increase the
total number of shares reserved for the purposes of the Plan or decrease the
option price provided for in paragraph 6(b) of the Plan, (ii) change the class
of persons eligible to participate in the Plan as provided in paragraph 5 of
the Plan, (iii) extend the option period provided for in paragraph 6(a) of the
Plan, or (iv) extend the expiration date of this Plan set forth in paragraph 9
of the Plan.
8. Compliance with Other Laws and Regulations. The Plan, the
grant and exercise of options thereunder, and the obligation of the Company to
sell and deliver shares under such options, shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by the
governmental or regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of Common Stock prior
to the completion of any registration or qualification of such shares under any
federal or state law, or any ruling or regulation of any government body which
the Company shall, in its sole discretion, determine to be necessary or
advisable.
9. Effectiveness and Expiration of Plan. The Plan shall be
effective on February 17, 1988, the date the Board of Directors of the Company
initially adopted the Plan, subject to the express condition that stockholders
of the Company shall have approved and ratified the Plan within one year
thereafter. Notwithstanding anything to the contrary set forth in the Plan or
any option agreement pursuant to the Plan, no option under the Plan may be
exercised unless stockholders of the Company shall have approved and ratified
the Plan within one year of its effective date. For the purpose of granting
options hereunder, this Plan shall expire on February 16, 1998, ten years after
the effective date of the Plan and thereafter no option shall be granted
pursuant to the Plan.
EXHIBIT 10.30 Page 5
<PAGE> 1
As Amended February 24, 1994
ROPAK CORPORATION
1991 STOCK OPTION PLAN
1. Purpose of the Plan. The purpose of the Ropak Corporation
1991 Stock Option Plan ("Plan") is to encourage ownership of the common stock
of Ropak Corporation, a Delaware corporation ("Company"), by eligible key
employees, directors and officers providing service to the Company and its
subsidiaries and to provide increased incentive for such employees and other
persons to render services to the Company and its subsidiaries in the future
and to exert maximum effort for the success of the business of the Company and
its subsidiaries.
2. Definitions. As used herein, and in any Option granted
hereunder, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of Ropak Corporation.
(b) "Common Stock" shall mean the Common Stock of Ropak
Corporation.
(c) "Company" shall mean Ropak Corporation.
(d) "Committee" shall mean a Committee of two or more members of
the Board which shall be composed of only disinterested
directors of the Company as defined in Rule 16-3(c)(2)
promulgated under the Securities Exchange Act of 1934
("Exchange Act") who have not, during their period of service
on the Committee and during the period of 12 months prior to
service on the Committee, received an option to acquire or
purchase equity securities of the Company or any of its
affiliates under the Plan or under any other stock option or
other stock incentive plan of the Company and its affiliates
except for participation in a plan expressly permitted under
the provisions of subsection (i) of Rule 16-3(c)(2)
promulgated under the Exchange Act.
(e) "Continuous Employment" or "Continuous Status as an Employee"
shall mean the absence of any interruption or termination of
employment by the Company or any Subsidiary. Continuous
Employment shall not be considered interrupted in the case of
sick leave, military leave or any other leave of absence
approved by the Company or in the case of transfers between
locations of the Company or between the Company, its
Subsidiaries or its successor.
(f) "Employee" shall mean any person, including officers,
directors, employees and consultants, employed by the Company
or any Subsidiary on either a full-time or part-time basis.
(g) "Incentive Stock Option" shall mean any Option granted under
this Plan, or any other option granted to an Employee, which
complies with the provisions of Section 422A of the Internal
Revenue Code of 1986, as amended from time to time (herein
called the "Code").
(h) "Non-Qualified Stock Option" shall mean any Option granted
under this Plan which does not qualify in whole or in part as
an "incentive stock option" under the provisions of Section
422A of the Code.
(i) "Option" shall mean a stock option granted pursuant to the
Plan.
EXHIBIT 10.31 Page 6
<PAGE> 2
(j) "Optioned Shares" shall mean the Common Stock subject to an
Option granted pursuant to the Plan.
(k) "Optionee" shall mean a person who receives an Option under
the Plan.
(l) "Plan" shall mean this 1991 Stock Option Plan.
(m) "Share" shall mean a share of the Common Stock, as adjusted in
accordance with Section 6(i) of the Plan.
(n) "Subsidiary" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company
if, at the time of the granting of the Option, each of the
corporations other than the last corporation in the unbroken
chain owns stock possessing 50 percent or more of the total
combined voting power of all classes of stock in one of the
other corporations in such chain.
3. Administration of the Plan.
(a) Procedure. The Plan shall be administered by the Board. The
Board may appoint a Committee consisting of not less than three members of the
Board to administer the Plan on behalf of the Board, subject to such terms and
conditions as the Board may prescribe. Once appointed, the Committee shall
continue to serve until otherwise directed by the Board. From time to time,
the Board may increase the size of the Committee and appoint additional members
thereof, remove members (with or without cause) and appoint new members in
substitutions therefore, fill vacancies, however caused, and remove all members
of the Committee and, thereafter, directly administer the Plan.
Members of the Board or Committee who are either eligible for Options
or have been granted Options may vote on any matters affecting the
administration of the Plan or the grant of any Options pursuant to the Plan;
provided that no such member shall act upon the granting, amendment or
modification of an Option to himself, but any such member may be counted in
determining the existence of a quorum at any meeting of the Board or the
Committee during which action is taken with respect to the granting of an
Option to him.
(b) Powers of the Committee. Subject to the provisions of the
Plan, the Committee shall have the authority: (i) to determine, upon review of
relevant information, the fair market value of the Common Stock; (ii) to
determine the exercise price of Options to be granted (which price, in the case
of Incentive Stock Options, shall be not less than the minimum specified in
Section 6(b) hereof), the Employees to whom and the time or times at which
Options shall be granted, and the number of Shares to be represented by each
Option; (iii) to interpret the Plan; (iv) to prescribe, amend and rescind rules
and regulations relating to the Plan, (v) to determine the terms and provisions
of each Option granted under the Plan (which need not be identical) and, with
the consent of the holder thereof, to modify or amend any Option; (vi) to
authorize any person to execute on behalf of the Company any instrument
required to effectuate the grant of an Option previously granted by the
Committee, and (vii) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) Effect of Committee's Decision. All decisions, determinations
and interpretations of the Committee shall be final and binding on all
Optionees and any other holders of any Options granted under the Plan.
4. Stock Reserved for the Plan. Subject to adjustment as
provided in paragraph 6(h) and 6(i) hereof and to the provisions of Section 9
hereof, a total of 300,000 shares of Common Stock shall be subject to the Plan.
The Shares subject to the Plan shall consist of unissued shares or previously
issued shares
EXHIBIT 10.31 Page 7
<PAGE> 3
reacquired and held by the Company, and such amount of shares shall be and is
hereby reserved for sale for such purpose. Any of such shares which may remain
unsold and which are not subject to outstanding Options at the termination of
the Plan shall cease to be reserved for the purpose of the Plan, but until
termination of the Plan the Company shall at all times reserve a sufficient
number of shares to meet the requirements of the Plan. Should any Option
expire or be cancelled prior to its exercise in full, the shares theretofore
subject to such Option may again be made subject to an Option under the Plan.
5. Eligibility.
(a) Incentive Stock Options under the Plan may be granted only to
Employees for a reason connected with their employment by the Company or any
Subsidiary. Non-Qualified Stock Options may be granted under the Plan to
Employees for a reason connected with their employment or other service to the
Company or any Subsidiary. An Employee who has been granted an Incentive Stock
Option or a Non-Qualified Stock Option, if he or she is otherwise eligible, may
be granted additional Incentive Stock Options or Non-Qualified Stock Options.
(b) The aggregate fair market value (determined at the time an
Incentive Stock Option is granted) of the Common Stock with respect to which
any Incentive Stock Option may be exercisable for the first time by an Optionee
during any calendar year (under this Plan and any other stock option plans of
the Company and its Subsidiaries) shall not exceed $100,000.
The Plan shall not confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with his right or the Company's right to terminate his employment or other
position at any time.
6. Terms and Conditions. Each Option granted under the Plan
shall be evidenced by an agreement, in a form approved by the Committee, which
shall be subject to the following express terms and conditions and to such
other terms and conditions as the Committee may deem appropriate.
(a) Option Period. Each option agreement shall specify the period
for which the Option thereunder is granted (which in no event shall exceed ten
years from the date of grant) and shall provide that the Option shall expire at
the end of such period. In the case of Incentive Stock Options, if the
Optionee owns more than ten percent (10%) of the outstanding stock of the
Company (determined in accordance with Section 425(d) of the Code) on the date
the Incentive Stock Option is granted to him, the option period shall not
exceed five years from the date of grant.
(b) Option Price. The purchase price of each share of Common
Stock subject to each Option granted pursuant to the Plan shall be determined
by the Committee at the time the Option is granted. In the case of Incentive
Stock Options, such purchase price shall not be less than the fair market value
of a share of Common Stock on the date the Option is granted, as determined by
the Committee; provided, however, that in the case of an Incentive Stock Option
granted to an Optionee who owns more than ten percent (10%) of the outstanding
stock of the Company (determined in accordance with Section 425(d) of the Code)
on the date the Option is granted to him, the option price shall not be less
than 110% of the fair market value of a share of Common Stock on such date.
(c) Exercise Period. No part of any Option may be exercised until
the Optionee shall have remained in the employ of the Company or any of its
Subsidiaries for such period after the date on which the Option is granted as
the Committee may specify in the option agreement.
(d) Procedure for Exercise. Options shall be exercised by the
delivery of written notice to the Company setting forth the number of shares
with respect to which the Option is to be exercised. An Option
EXHIBIT 10.31 Page 8
<PAGE> 4
may not be exercised for fractional shares. Unless stock of the Company is
used to acquire such shares in accordance with paragraph 6(k), such notice
shall be accompanied by cash or certified check, bank draft, or postal or
express money order payable to the order of the Company for an amount equal to
the Option price of such shares and specifying the address to which the
certificates for such shares are to be mailed. As promptly as practicable
after receipt of such written notification and payment, the Company shall
deliver to the Optionee certificates for the number of shares with respect to
which such Option has been so exercised, issued in the Optionee's name;
provided, however, that such delivery shall be deemed effected for all purposes
when a stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the Optionee, at the
address specified pursuant to this paragraph 6(d). Until the issuance of the
stock certificates, no right to vote or receive dividends or any other rights
as a stockholder shall exist with respect to the optioned shares.
(e) Termination of Employment. If an Optionee to whom an Option
has been granted ceases to be employed by the Company or any of its
Subsidiaries for any reason other than death or disability, the Options granted
to him shall thereupon terminate. Any Options which are exercisable on the
date of such termination of employment may be exercised during a three month
period beginning on such date.
(f) Disability or Death of Optionee. In the event of the
disability or death of the holder of an Option under the Plan while he is
employed by the Company or any of its Subsidiaries, the Options previously
granted to him may be exercised (to the extent he would have been entitled to
do so at the date of his disability or death) at any time and from time to
time, within a period of one year after his disability or death, by the
Optionee, by the executor or administrator of his estate or by the person or
persons to whom his rights under the Option shall pass by will or the laws of
descent and distribution, but in no event may the Option be exercised after its
expiration. An employee shall be deemed to be disabled if, in the opinion of a
physician selected by the Committee, he is incapable of performing services for
the Company or any of its subsidiaries by reason of any medically determinable
physical or mental impairment which can be expected to result in death or to be
of long, continued and indefinite duration lasting not less than 12 months.
(g) No Rights as Stockholder. No Optionee shall have any rights
as a stockholder with respect to shares covered by an Option until the date of
issuance of a stock certificate for such shares; except as provided in
paragraphs 6(h) or 6(i), no adjustment for dividends, or otherwise, shall be
made if the record date therefore is prior to the date of issuance of such
certificate.
(h) Extraordinary Corporate Transactions; Adjustment for
Recapitalization, Merger, etc.
If the Company is dissolved or liquidated, or is merged or
consolidated into or with another corporation, other than by a merger or
consolidation in which the Company is the surviving corporation, the then
exercisable but unexercised Options granted under the Plan shall not be
exercisable after the date of such dissolution, liquidation, merger or
consolidation, unless such other surviving corporation makes provision for
adoption of the Plan and the assumption of the Company's obligations
thereunder.
Notwithstanding any provision of this Plan, the Committee is
authorized to take such action as it determines to be necessary or advisable,
and fair and equitable to Optionees, with respect to Options held by Optionees
in the event of a sale or transfer of all or substantially all of the Company's
assets, or merger or consolidation (other than a merger or consolidation in
which the Company is the surviving corporation and no shares are converted into
or exchanged for securities, cash or any other thing of value). Such action
may include (but is not limited to) the following:
(A) Accelerating the exercisability of any Option to
permit its exercise in full during such period as the Committee in its
sole discretion shall prescribe following the public announcement of a
sale or transfer of assets or merger or consolidation.
(B) Permitting an Optionee, at any time during such
period as the Committee in its sole
EXHIBIT 10.31 Page 9
<PAGE> 5
discretion shall prescribe following the consummation of such a
merger, consolidation or sale or transfer of assets, to surrender any
Option (or any portion thereof) to the Company for cancellation.
(C) Requiring any Optionee, at any time following the
consummation of such a merger, consolidation or sale or transfer of
assets, if required by the terms of the agreements relating thereto,
to surrender any Option (or any portion thereof) to the Company in
return for a substitute Option which is issued by the corporation
surviving such merger or consolidation or the corporation which
acquired such assets (or by an affiliate of such corporation) and
which the Committee, in its sole discretion, determines to have a
value to the Optionee substantially equivalent to the value to the
Optionee of the Option (or portion thereof) so surrendered.
Subject to any action which the Committee may take pursuant to the
provisions of this paragraph 6(h) and paragraph 6(i), in the event of any
merger, consolidation or sale or transfer of assets referred to in this
paragraph 6(h) or paragraph 6(i), upon any exercise thereafter of an Option,
and Optionee shall, at no additional cost other than payment of the exercise
price of the Option, be entitled to receive in lieu of Shares, (1) the number
and class of Shares or other security, or (2) the amount of cash, or (3)
property, or (4) a combination of the foregoing, to which the Optionee would
have been entitled pursuant to the terms of such merger, consolidation or sale
or transfer of assets, if immediately prior thereto the Optionee had been the
holder of record of the number of Shares for which such Option shall be so
exercised.
(i) Changes in Company's Capital Structure. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalization, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or
any issuance of Common Stock or subscription rights thereto, or any issuance of
bonds, debentures, preferred or prior preference stock ahead of or affecting
the Common Stock or the rights thereof, or the dissolution or liquidation of
the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, whether of a similar
character or otherwise. Provided, however, that if the outstanding shares of
Common Stock of the Company shall at any time be changed or exchanged by
declaration of a stock dividend, stock split, combination of shares, or
recapitalization, the number and kind of shares subject to the Plan or subject
to any Options theretofore granted, and the option prices, shall be
appropriately and equitably adjusted so as to maintain the proportionate number
of shares without changing the aggregate option price.
(j) Investment Representation. Each option agreement shall
contain an agreement that, upon demand by the Committee for such a
representation, the Optionee [or any person acting under paragraph 6(f)] shall
deliver to the Committee at the time of any exercise of an Option a written
representation that the shares to be acquired upon such exercise are to be
acquired for investment and not for resale or with a view to the distribution
thereof. Upon such demand, delivery of such a representation prior to the
delivery of any shares issued upon exercise of an Option and prior to the
expiration of the option period shall be a condition precedent to the right of
the Optionee or such other person to purchase any shares.
(k) Payment with Stock. Subject to approval of the Committee, an
Employee may pay for any shares of Common Stock with respect to which an Option
has been exercised by tendering to the Company other shares of Common Stock at
the time of the exercise of such Option, provided, however, that at the time of
such exercise, the Company shall have a Committee consisting of three (3) or
more disinterested directors who shall approve the payment for option shares
with other shares. The certificates representing such other shares of Common
Stock must be accompanied by a stock power duly executed with signature
guaranteed. The value of Common Stock so tendered shall be determined by the
Committee in its sole discretion. The Committee may, in its sole and absolute
discretion, refuse any tender of shares of Common Stock, in which case it shall
deliver the tendered shares of Common Stock back to the employee and notify the
employee of such refusal.
(l) Options Not Transferable. No Option or interest or right
therein or part thereof shall be
EXHIBIT 10.31 Page 10
<PAGE> 6
liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy) and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that nothing in this
Section 6(l) shall prevent transfers by will or by the applicable laws of
descent and distribution.
(m) Six Month Restriction on Sale or Disposition. No part of any
shares acquired on exercise of an Option granted under the Plan may be sold or
otherwise disposed of by an Optionee until the expiration of at least six
months following the date on which such Option so exercised was originally
granted by the Company. In the event an Option is exercised within six months
of its date of grant, the securities evidencing the shares may bear a legend
referring to the restrictions set forth in this Section.
7. Amendments or Termination. The Board of Directors may amend,
alter or discontinue the Plan, but no amendment or alteration shall be made
which would impair the rights of any participant under any Option theretofore
granted without his consent, or which without the approval of the shareholders,
would: (i) except as is provided in paragraphs 6(h) and 6(i) of the Plan,
increase the total number of shares reserved for the purposes of the Plan or
decrease the option price provided for in paragraph 6(b) of the Plan, (ii)
change the class of persons eligible to participate in the Plan as provided in
paragraph 5 of the Plan, (iii) extend the option period provided for in
paragraph 6(a) of the Plan, or (iv) extend the expiration date of this Plan set
forth in paragraph 9 of the Plan.
8. Compliance with Other Laws and Regulations. The Plan, the
grant and exercise of Options thereunder, and the obligation of the Company to
sell and deliver shares under such Options, shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by the
governmental or regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of Common Stock prior
to the completion of any registration or qualification of such shares under any
federal or state law, or any ruling or regulation of any government body which
the Company shall, in its sole discretion, determine to be necessary or
advisable. Further, it is the intention of the Company that the Plan comply in
all respects with the provisions of Rule 16b-3 of the United States Securities
and Exchange Act of 1934, as amended. If any Plan provision is found or
determined not to be in compliance with such Rule 16b-3, the provision shall be
deemed null and void.
9. Effectiveness and Expiration of Plan. The Plan shall be
effective on February 19, 1991, the date the Board of Directors of the Company
initially adopted the Plan, subject to the express condition that stockholders
of the Company shall have approved and ratified the Plan within one year
thereafter. Notwithstanding anything to the contrary set forth in the Plan or
any option agreement pursuant to the Plan, no Option under the Plan may be
exercised unless stockholders of the Company shall have approved and ratified
the Plan within one year of its effective date. For the purpose of granting
Options hereunder, this Plan shall expire on February 18, 2001, ten years after
the effective date of the Plan and thereafter no Option shall be granted
pursuant to the Plan.
10. Cancellation and Issuance. The Committee may, at its sole
discretion, subject to the provisions of the Plan, cancel outstanding Options
and issue replacement Options under the Plan under terms and at exercise prices
it deems beneficial to the Company and the Optionees, to further the purposes
of the Plan. Notwithstanding this paragraph 10, no Option may be cancelled, or
otherwise amended or modified, without the written consent of the Optionee.
EXHIBIT 10.31 Page 11
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1991 STOCK OPTION PLAN
-----------------------------
Date: February 19, 1991
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to WILLIAM H. ROPER (the "Optionee"), pursuant to the 1991 Stock Option
Plan of the Company (the "Plan"), a copy of which is appended hereto and made a
part hereof as Schedule I, an option to purchase a total of FORTY THOUSAND
(40,000) shares of Common Stock of the Company at a price of SIX DOLLARS
($6.00) per share (subject to adjustment as provided in Section 6(i) of the
Plan), on the terms and conditions set forth in the Plan and hereinafter. This
option shall not be exercisable later than on February 18, 1996, (hereinafter
referred to as the "Expiration Date"), except as provided in paragraphs 6(e)
and 6(f) of the Plan in the event of termination of employment, death or
disability of the Optionee.
1. Vesting.
1.1. Subject to the terms and conditions of this Agreement, this
option shall be exercisable as follows:
(a) The first 10,000 shares subject to this option shall
be exercisable immediately.
(b) The next 15,000 shares subject to the option shall be
exercisable on or after February 19, 1992.
(c) The final 15,000 shares subject to the option shall
be exercisable on or after February 19, 1993.
provided, however, that this option shall not be exercisable later than the
Expiration Date.
1.2. Notwithstanding the foregoing provisions of this Section 1,
in the event (any such event being herein called a "Disposition Event") of a
sale or transfer of all or substantially all of the Company's assets, or merger
or consolidation (other than a merger or consolidation in which the Company is
the surviving corporation and no shares of the Company's common stock are
converted into or exchanged for securities, cash or any other thing of value),
all of the shares covered by this option shall be immediately exercisable upon
the following terms and conditions:
(a) during the period commencing on the date of the first public
announcement of a sale or transfer of assets or merger or
consolidation constituting a Disposition Event, all of the shares then
covered by this option may be fully exercised by the
EXHIBIT 10.32 Page 1
<PAGE> 2
Optionee for such period thereafter, and (if so specified by the
Optionee) subject to the consummation of the transaction constituting
the Disposition Event, as shall be determined by the Board of
Directors of the Company; such period in any event shall be not less
than sixty (60) days and shall terminate not earlier than the first
business day after the consummation of the transaction constituting
the Disposition Event; and
(b) if required by the terms of the agreement(s) relating to the
Disposition Event or by resolutions duly adopted by the Board of
Directors of the Company, this option (or any unexercised portion
thereof) shall be either (i) terminated and cancelled at the close of
business on the first business day after the consummation of the
Disposition Event, or (ii) surrendered, cancelled and exchanged in
return for a substitute option which is issued by the corporation
surviving such merger or consolidation or the corporation which
acquired such assets (or by an affiliate of such corporation) which
the Committee, in its sole discretion, determines to have a value to
the Optionee substantially equivalent to the value to the Optionee of
this option (or portion thereof) so surrendered.
Subject to the right of the Committee to take any other action permitted by the
terms and provisions of paragraph 6(h) and/or 6(i) of the Plan, the provisions
of this Section 1.2 shall be deemed to constitute action of the Committee taken
in accordance with the provisions of paragraphs 6(h) and 6(i) of the Plan and
shall terminate any right of the Optionee, in the event of any merger,
consolidation or sale or transfer of assets constituting a Disposition Event,
to exercise this Option after the close of business on the first business day
following the consummation of a Disposition Event.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant
EXHIBIT 10.32 Page 2
<PAGE> 3
to the terms and conditions of Section 6(h) of the Plan and/or Section 1.2 of
this Agreement.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal or state
securities law or regulation.
EXHIBIT 10.32 Page 3
<PAGE> 4
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, THIS OPTION MAY NOT BE EXERCISED UNLESS STOCKHOLDERS OF THE
COMPANY SHALL HAVE APPROVED AND RATIFIED THE 1991 STOCK OPTION PLAN PRIOR TO
FEBRUARY 19, 1992.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ ROBERT E. ROPER
President
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.32 Page 4
<PAGE> 1
WILLIAM H. ROPER
12 Rue Biarritz
Newport Beach, California 92660
Date: February 27, 1995
ROPAK Corporation
660 S. State College Blvd.
Fullerton, CA 92631-5138
Attention: Ronald W. Cameron, Chief Financial Officer
RE: CANCELLATION OF STOCK OPTION
Gentlemen:
This letter will confirm my agreement to the cancellation of that
certain stock option granted to me on February 19, 1991 under the 1991 Stock
Option Plan of Ropak Corporation covering 44,000 shares of the Company's common
stock. The option has been cancelled in consideration of the payment to the
undersigned of $222,002.00 by LinPac Mouldings Ltd., receipt of which is hereby
acknowledged.
Sincerely,
/S/ WILLIAM H. ROPER
William H. Roper
cc: Scott M. Williams
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606-5096
EXHIBIT 10.33 Page 1
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1991 STOCK OPTION PLAN
----------------------------
Date: February 19, 1991
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to C. RICHARD ROPER (the "Optionee"), pursuant to the 1991 Stock Option
Plan of the Company (the "Plan"), a copy of which is appended hereto and made a
part hereof as Schedule I, an option to purchase a total of FORTY THOUSAND
(40,000) shares of Common Stock of the Company at a price of SIX DOLLARS
($6.00) per share (subject to adjustment as provided in Section 6(i) of the
Plan), on the terms and conditions set forth in the Plan and hereinafter. This
option shall not be exercisable later than on February 18, 1996, (hereinafter
referred to as the "Expiration Date"), except as provided in paragraphs 6(e)
and 6(f) of the Plan in the event of termination of employment, death or
disability of the Optionee.
1. Vesting.
1.1 Subject to the terms and conditions of this Agreement, this
option shall be exercisable as follows:
(a) The first 10,000 shares subject to this option shall
be exercisable immediately.
(b) The next 15,000 shares subject to the option shall be
exercisable on or after February 19, 1992.
(c) The final 15,000 shares subject to the option shall
be exercisable on or after February 19, 1993.
provided, however, that this option shall not be exercisable later than the
Expiration Date.
1.2. Notwithstanding the foregoing provisions of this Section 1,
in the event (any such event being herein called a "Disposition Event") of a
sale or transfer of all or substantially all of the Company's assets, or merger
or consolidation (other than a merger or consolidation in which the Company is
the surviving corporation and no shares of the Company's common stock are
converted into or exchanged for securities, cash or any other thing of value),
all of the shares covered by this option shall be immediately exercisable upon
the following terms and conditions:
(a) during the period commencing on the date of the first public
announcement of a sale or transfer of assets or merger or
consolidation constituting a Disposition Event, all of the shares then
covered by this option may be fully exercised by the
EXHIBIT 10.34 Page 1
<PAGE> 2
Optionee for such period thereafter, and (if so specified by the
Optionee) subject to the consummation of the transaction constituting
the Disposition Event, as shall be determined by the Board of
Directors of the Company; such period in any event shall be not less
than sixty (60) days and shall terminate not earlier than the first
business day after the consummation of the transaction constituting
the Disposition Event; and
(b) if required by the terms of the agreement(s) relating to the
Disposition Event or by resolutions duly adopted by the Board of
Directors of the Company, this option (or any unexercised portion
thereof) shall be either (i) terminated and cancelled at the close of
business on the first business day after the consummation of the
Disposition Event, or (ii) surrendered, cancelled and exchanged in
return for a substitute option which is issued by the corporation
surviving such merger or consolidation or the corporation which
acquired such assets (or by an affiliate of such corporation) which
the Committee, in its sole discretion, determines to have a value to
the Optionee substantially equivalent to the value to the Optionee of
this option (or portion thereof) so surrendered.
Subject to the right of the Committee to take any other action permitted by the
terms and provisions of paragraph 6(h) and/or 6(i) of the Plan, the provisions
of this Section 1.2 shall be deemed to constitute action of the Committee taken
in accordance with the provisions of paragraphs 6(h) and 6(i) of the Plan and
shall terminate any right of the Optionee, in the event of any merger,
consolidation or sale or transfer of assets constituting a Disposition Event,
to exercise this Option after the close of business on the first business day
following the consummation of a Disposition Event.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant
EXHIBIT 10.34 Page 2
<PAGE> 3
to the terms and conditions of Section 6(h) of the Plan and/or Section 1.2 of
this Agreement.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal
EXHIBIT 10.34 Page 3
<PAGE> 4
or state securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, THIS OPTION MAY NOT BE EXERCISED UNLESS STOCKHOLDERS OF THE
COMPANY SHALL HAVE APPROVED AND RATIFIED THE 1991 STOCK OPTION PLAN PRIOR TO
FEBRUARY 19, 1992.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.34 Page 4
<PAGE> 1
C. RICHARD ROPER
1383 North Mustang
Orange, California 92667
Date: February 27, 1995
ROPAK Corporation
660 S. State College Blvd.
Fullerton, CA 92631-5138
Attention: Ronald W. Cameron, Chief Financial Officer
RE: CANCELLATION OF STOCK OPTION
Gentlemen:
This letter will confirm my agreement to the cancellation of that
certain stock option granted to me on February 19, 1991 under the 1991 Stock
Option Plan of Ropak Corporation covering 44,000 shares of the Company's common
stock. The option has been cancelled in consideration of the payment to the
undersigned of $222,002.00 by LinPac Mouldings Ltd., receipt of which is hereby
acknowledged.
Sincerely,
/S/ C. RICHARD ROPER
C. Richard Roper
cc: Scott M. Williams
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606-5096
EXHIBIT 10.35 Page 1
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1991 STOCK OPTION PLAN
----------------------------
Date: February 19, 1991
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to ROBERT E. ROPER (the "Optionee"), pursuant to the 1991 Stock Option
Plan of the Company (the "Plan"), a copy of which is appended hereto and made a
part hereof as Schedule I, an option to purchase a total of FORTY THOUSAND
(40,000) shares of Common Stock of the Company at a price of SIX DOLLARS
($6.00) per share (subject to adjustment as provided in Section 6(i) of the
Plan), on the terms and conditions set forth in the Plan and hereinafter. This
option shall not be exercisable later than on February 18, 1996, (hereinafter
referred to as the "Expiration Date"), except as provided in paragraphs 6(e)
and 6(f) of the Plan in the event of termination of employment, death or
disability of the Optionee.
1. Vesting.
1.1. Subject to the terms and conditions of this Agreement, this
option shall be exercisable as follows:
(a) The first 10,000 shares subject to this option shall
be exercisable immediately.
(b) The next 15,000 shares subject to the option shall be
exercisable on or after February 19, 1992.
(c) The final 15,000 shares subject to the option shall
be exercisable on or after February 19, 1993.
provided, however, that this option shall not be exercisable later than the
Expiration Date.
1.2. Notwithstanding the foregoing provisions of this Section 1,
in the event (any such event being herein called a "Disposition Event") of a
sale or transfer of all or substantially all of the Company's assets, or merger
or consolidation (other than a merger or consolidation in which the Company is
the surviving corporation and no shares of the Company's common stock are
converted into or exchanged for securities, cash or any other thing of value),
all of the shares covered by this option shall be immediately exercisable upon
the following terms and conditions:
(a) during the period commencing on the date of the first public
announcement of a sale or transfer of assets or merger or
consolidation constituting a Disposition Event, all of the shares then
covered by this option may be fully exercised by the
EXHIBIT 10.36 Page 1
<PAGE> 2
Optionee for such period thereafter, and (if so specified by the
Optionee) subject to the consummation of the transaction constituting
the Disposition Event, as shall be determined by the Board of
Directors of the Company; such period in any event shall be not less
than sixty (60) days and shall terminate not earlier than the first
business day after the consummation of the transaction constituting
the Disposition Event; and
(b) if required by the terms of the agreement(s) relating to the
Disposition Event or by resolutions duly adopted by the Board of
Directors of the Company, this option (or any unexercised portion
thereof) shall be either (i) terminated and cancelled at the close of
business on the first business day after the consummation of the
Disposition Event, or (ii) surrendered, cancelled and exchanged in
return for a substitute option which is issued by the corporation
surviving such merger or consolidation or the corporation which
acquired such assets (or by an affiliate of such corporation) which
the Committee, in its sole discretion, determines to have a value to
the Optionee substantially equivalent to the value to the Optionee of
this option (or portion thereof) so surrendered.
Subject to the right of the Committee to take any other action permitted by the
terms and provisions of paragraph 6(h) and/or 6(i) of the Plan, the provisions
of this Section 1.2 shall be deemed to constitute action of the Committee taken
in accordance with the provisions of paragraphs 6(h) and 6(i) of the Plan and
shall terminate any right of the Optionee, in the event of any merger,
consolidation or sale or transfer of assets constituting a Disposition Event,
to exercise this Option after the close of business on the first business day
following the consummation of a Disposition Event.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant
EXHIBIT 10.36 Page 2
<PAGE> 3
to the terms and conditions of Section 6(h) of the Plan and/or Section 1.2 of
this Agreement.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal or state
securities law or regulation.
EXHIBIT 10.36 Page 3
<PAGE> 4
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, THIS OPTION MAY NOT BE EXERCISED UNLESS STOCKHOLDERS OF THE
COMPANY SHALL HAVE APPROVED AND RATIFIED THE 1991 STOCK OPTION PLAN PRIOR TO
FEBRUARY 19, 1992.
ROPAK CORPORATION
[CORPORATE SEAL] By:/S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.36 Page 4
<PAGE> 1
ROBERT E. ROPER
3802 Holden Circle
Los Alamitos, California 90720
Date: February 27, 1995
ROPAK Corporation
660 S. State College Blvd.
Fullerton, CA 92631-5138
Attention: Ronald W. Cameron, Chief Financial Officer
RE: CANCELLATION OF STOCK OPTION
Gentlemen:
This letter will confirm my agreement to the cancellation of that
certain stock option granted to me on February 19, 1991 under the 1991 Stock
Option Plan of Ropak Corporation covering 44,000 shares of the Company's common
stock. The option has been cancelled in consideration of the payment to the
undersigned of $222,002.00 by LinPac Mouldings Ltd., receipt of which is hereby
acknowledged.
Sincerely,
/S/ ROBERT E. ROPER
Robert E. Roper
cc: Scott M. Williams
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606-5096
EXHIBIT 10.37 Page 1
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1991 STOCK OPTION PLAN
----------------------------
Date: February 19, 1991
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to JAMES R. CONNELL (the "Optionee"), pursuant to the 1991 Stock Option
Plan of the Company (the "Plan"), a copy of which is appended hereto and made a
part hereof as Schedule I, an option to purchase a total of TWENTY-FIVE
THOUSAND (25,000) shares of Common Stock of the Company at a price of SIX
DOLLARS ($6.00) per share (subject to adjustment as provided in Section 6(i) of
the Plan), on the terms and conditions set forth in the Plan and hereinafter.
This option shall not be exercisable later than on February 18, 1996,
(hereinafter referred to as the "Expiration Date"), except as provided in
paragraphs 6(e) and 6(f) of the Plan in the event of termination of employment,
death or disability of the Optionee.
1. Vesting.
1.1. Subject to the terms and conditions of this Agreement, this
option shall be exercisable as follows:
(a) The first 10,000 shares subject to this option shall
be exercisable immediately.
(b) The next 10,000 shares subject to the option shall be
exercisable on or after February 19, 1992.
(c) The final 5,000 shares subject to the option shall be
exercisable on or after February 19, 1993.
provided, however, that this option shall not be exercisable later than the
Expiration Date.
1.2. Notwithstanding the foregoing provisions of this Section 1,
in the event (any such event being herein called a "Disposition Event") of a
sale or transfer of all or substantially all of the Company's assets, or merger
or consolidation (other than a merger or consolidation in which the Company is
the surviving corporation and no shares of the Company's common stock are
converted into or exchanged for securities, cash or any other thing of value),
all of the shares covered by this option shall be immediately exercisable upon
the following terms and conditions:
(a) during the period commencing on the date of the first public
announcement of a sale or transfer of assets or merger or con-
EXHIBIT 10.38 Page 1
<PAGE> 2
solidation constituting a Disposition Event, all of the shares then
covered by this option may be fully exercised by the Optionee for such
period thereafter, and (if so specified by the Optionee) subject to
the consummation of the transaction constituting the Disposition
Event, as shall be determined by the Board of Directors of the
Company; such period in any event shall be not less than sixty (60)
days and shall terminate not earlier than the first business day after
the consummation of the transaction constituting the Disposition
Event; and
(b) if required by the terms of the agreement(s) relating to the
Disposition Event or by resolutions duly adopted by the Board of
Directors of the Company, this option (or any unexercised portion
thereof) shall be either (i) terminated and cancelled at the close of
business on the first business day after the consummation of the
Disposition Event, or (ii) surrendered, cancelled and exchanged in
return for a substitute option which is issued by the corporation
surviving such merger or consolidation or the corporation which
acquired such assets (or by an affiliate of such corporation) which
the Committee, in its sole discretion, determines to have a value to
the Optionee substantially equivalent to the value to the Optionee of
this option (or portion thereof) so surrendered.
Subject to the right of the Committee to take any other action permitted by the
terms and provisions of paragraph 6(h) and/or 6(i) of the Plan, the provisions
of this Section 1.2 shall be deemed to constitute action of the Committee taken
in accordance with the provisions of paragraphs 6(h) and 6(i) of the Plan and
shall terminate any right of the Optionee, in the event of any merger,
consolidation or sale or transfer of assets constituting a Disposition Event,
to exercise this Option after the close of business on the first business day
following the consummation of a Disposition Event.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolida-
EXHIBIT 10.38 Page 2
<PAGE> 3
tion with, or sale or transfer of all or substantially all of the assets of the
Company, except under the circumstances and pursuant to the terms and
conditions of Section 6(h) of the Plan and/or Section 1.2 of this Agreement.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal
EXHIBIT 10.38 Page 3
<PAGE> 4
or state securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, THIS OPTION MAY NOT BE EXERCISED UNLESS STOCKHOLDERS OF THE
COMPANY SHALL HAVE APPROVED AND RATIFIED THE 1991 STOCK OPTION PLAN PRIOR TO
FEBRUARY 19, 1992.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.38 Page 4
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1991 STOCK OPTION PLAN
----------------------------
Date: February 19, 1991
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to JAMES R. DOBELL (the "Optionee"), pursuant to the 1991 Stock Option
Plan of the Company (the "Plan"), a copy of which is appended hereto and made a
part hereof as Schedule I, an option to purchase a total of TWENTY-FIVE
THOUSAND (25,000) shares of Common Stock of the Company at a price of SIX
DOLLARS ($6.00) per share (subject to adjustment as provided in Section 6(i) of
the Plan), on the terms and conditions set forth in the Plan and hereinafter.
This option shall not be exercisable later than on February 18, 1996,
(hereinafter referred to as the "Expiration Date"), except as provided in
paragraphs 6(e) and 6(f) of the Plan in the event of termination of employment,
death or disability of the Optionee.
1. Vesting.
1.1. Subject to the terms and conditions of this Agreement, this
option shall be exercisable as follows:
(a) The first 10,000 shares subject to this option shall
be exercisable immediately.
(b) The next 10,000 shares subject to the option shall be
exercisable on or after February 19, 1992.
(c) The final 5,000 shares subject to the option shall be
exercisable on or after February 19, 1993.
provided, however, that this option shall not be exercisable later than the
Expiration Date.
1.2. Notwithstanding the foregoing provisions of this Section 1,
in the event (any such event being herein called a "Disposition Event") of a
sale or transfer of all or substantially all of the Company's assets, or merger
or consolidation (other than a merger or consolidation in which the Company is
the surviving corporation and no shares of the Company's common stock are
converted into or exchanged for securities, cash or any other thing of value),
all of the shares covered by this option shall be immediately exercisable upon
the following terms and conditions:
(a) during the period commencing on the date of the first public
announcement of a sale or transfer of assets or merger or con-
EXHIBIT 10.39 Page 1
<PAGE> 2
solidation constituting a Disposition Event, all of the shares then
covered by this option may be fully exercised by the Optionee for such
period thereafter, and (if so specified by the Optionee) subject to
the consummation of the transaction constituting the Disposition
Event, as shall be determined by the Board of Directors of the
Company; such period in any event shall be not less than sixty (60)
days and shall terminate not earlier than the first business day after
the consummation of the transaction constituting the Disposition
Event; and
(b) if required by the terms of the agreement(s) relating to the
Disposition Event or by resolutions duly adopted by the Board of
Directors of the Company, this option (or any unexercised portion
thereof) shall be either (i) terminated and cancelled at the close of
business on the first business day after the consummation of the
Disposition Event, or (ii) surrendered, cancelled and exchanged in
return for a substitute option which is issued by the corporation
surviving such merger or consolidation or the corporation which
acquired such assets (or by an affiliate of such corporation) which
the Committee, in its sole discretion, determines to have a value to
the Optionee substantially equivalent to the value to the Optionee of
this option (or portion thereof) so surrendered.
Subject to the right of the Committee to take any other action permitted by the
terms and provisions of paragraph 6(h) and/or 6(i) of the Plan, the provisions
of this Section 1.2 shall be deemed to constitute action of the Committee taken
in accordance with the provisions of paragraphs 6(h) and 6(i) of the Plan and
shall terminate any right of the Optionee, in the event of any merger,
consolidation or sale or transfer of assets constituting a Disposition Event,
to exercise this Option after the close of business on the first business day
following the consummation of a Disposition Event.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolida-
EXHIBIT 10.39 Page 2
<PAGE> 3
tion with, 10.or sale or transfer of all or substantially all of the assets of
the Company, except under the circumstances and pursuant to the terms and
conditions of Section 6(h) of the Plan and/or Section 1.2 of this Agreement.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal
EXHIBIT 10.39 Page 3
<PAGE> 4
or state securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, THIS OPTION MAY NOT BE EXERCISED UNLESS STOCKHOLDERS OF THE
COMPANY SHALL HAVE APPROVED AND RATIFIED THE 1991 STOCK OPTION PLAN PRIOR TO
FEBRUARY 19, 1992.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.39 Page 4
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1991 STOCK OPTION PLAN
----------------------------
Date: February 19, 1991
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to RONALD W. CAMERON (the "Optionee"), pursuant to the 1991 Stock Option
Plan of the Company (the "Plan"), a copy of which is appended hereto and made a
part hereof as Schedule I, an option to purchase a total of TWENTY-FIVE
THOUSAND (25,000) shares of Common Stock of the Company at a price of SIX
DOLLARS ($6.00) per share (subject to adjustment as provided in Section 6(i) of
the Plan), on the terms and conditions set forth in the Plan and hereinafter.
This option shall not be exercisable later than on February 18, 1996,
(hereinafter referred to as the "Expiration Date"), except as provided in
paragraphs 6(e) and 6(f) of the Plan in the event of termination of employment,
death or disability of the Optionee.
1. Vesting.
1.1. Subject to the terms and conditions of this Agreement, this
option shall be exercisable as follows:
(a) The first 10,000 shares subject to this option shall
be exercisable immediately.
(b) The next 10,000 shares subject to the option shall be
exercisable on or after February 19, 1992.
(c) The final 5,000 shares subject to the option shall be
exercisable on or after February 19, 1993.
provided, however, that this option shall not be exercisable later than the
Expiration Date.
1.2. Notwithstanding the foregoing provisions of this Section 1,
in the event (any such event being herein called a "Disposition Event") of a
sale or transfer of all or substantially all of the Company's assets, or merger
or consolidation (other than a merger or consolidation in which the Company is
the surviving corporation and no shares of the Company's common stock are
converted into or exchanged for securities, cash or any other thing of value),
all of the shares covered by this option shall be immediately exercisable upon
the following terms and conditions:
(a) during the period commencing on the date of the first public
announcement of a sale or transfer of assets or merger or con-
EXHIBIT 10.40 Page 1
<PAGE> 2
solidation constituting a Disposition Event, all of the shares then
covered by this option may be fully exercised by the Optionee for such
period thereafter, and (if so specified by the Optionee) subject to
the consummation of the transaction constituting the Disposition
Event, as shall be determined by the Board of Directors of the
Company; such period in any event shall be not less than sixty (60)
days and shall terminate not earlier than the first business day after
the consummation of the transaction constituting the Disposition
Event; and
(b) if required by the terms of the agreement(s) relating to the
Disposition Event or by resolutions duly adopted by the Board of
Directors of the Company, this option (or any unexercised portion
thereof) shall be either (i) terminated and cancelled at the close of
business on the first business day after the consummation of the
Disposition Event, or (ii) surrendered, cancelled and exchanged in
return for a substitute option which is issued by the corporation
surviving such merger or consolidation or the corporation which
acquired such assets (or by an affiliate of such corporation) which
the Committee, in its sole discretion, determines to have a value to
the Optionee substantially equivalent to the value to the Optionee of
this option (or portion thereof) so surrendered.
Subject to the right of the Committee to take any other action permitted by the
terms and provisions of paragraph 6(h) and/or 6(i) of the Plan, the provisions
of this Section 1.2 shall be deemed to constitute action of the Committee taken
in accordance with the provisions of paragraphs 6(h) and 6(i) of the Plan and
shall terminate any right of the Optionee, in the event of any merger,
consolidation or sale or transfer of assets constituting a Disposition Event,
to exercise this Option after the close of business on the first business day
following the consummation of a Disposition Event.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolida-
EXHIBIT 10.40 Page 2
<PAGE> 3
tion with, or sale or transfer of all or substantially all of the assets of the
Company, except under the circumstances and pursuant to the terms and
conditions of Section 6(h) of the Plan and/or Section 1.2 of this Agreement.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal
EXHIBIT 10.40 Page 3
<PAGE> 4
or state securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, THIS OPTION MAY NOT BE EXERCISED UNLESS STOCKHOLDERS OF THE
COMPANY SHALL HAVE APPROVED AND RATIFIED THE 1991 STOCK OPTION PLAN PRIOR TO
FEBRUARY 19, 1992.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.40 Page 4
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1988 INCENTIVE STOCK OPTION PLAN
----------------------------
Date: May 17, 1990
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to JAMES R. CONNELL (the "Optionee"), pursuant to the 1988 Incentive
Stock Option Plan of the Company (the "Plan"), a copy of which is appended
hereto and made a part hereof as Schedule I, an option to purchase a total of
NINE THOUSAND (9,000) shares of Common Stock of the Company at a price of FIVE
DOLLARS AND TWENTY-FIVE CENTS ($5.25) per share (subject to adjustment as
provided in Section 6(i) of the Plan), on the terms and conditions set forth in
the Plan and hereinafter.
This option shall not be exercisable later than on May 17, 1995, (hereinafter
referred to as the "Expiration Date"), except that the Expiration Date may be
accelerated in certain events as provided in Section 1.2 of this Agreement or
as provided in paragraphs 6(e) and 6(f) of the Plan in the event of termination
of employment, death or disability of the Optionee.
1. Vesting and Early Expiration:
1.1. Vesting. Subject to the terms and conditions of this
Agreement, all of the shares of Common Stock subject to this Option shall be
exercisable immediately; provided, however, that this option shall not be
exercisable later than the Expiration Date of May 17, 1995 and, if applicable,
shall not be execisable later than an early expiration date determined in
accordance with Section 1.2.1 below.
1.2. Early Expiration.
1.2.1. Notwithstanding anything to the contrary set forth in this
Agreement, the Option granted by this Agreement SHALL EXPIRE THIRTY (30) DAYS
AFTER THE OPTIONEE HAS RECEIVED WRITTEN NOTICE FROM THE COMPANY THAT THE
COMPANY'S COMMON STOCK HAS TRADED AT THE "LOAN CALL MARKET PRICE," AS THAT TERM
IS HEREIN DEFINED. For the purposes of this Agreement, the "Loan Call Market
Price" shall mean a price of $13.875 per share of Common Stock, subject to
possible adjustment in accordance with Section 1.2.2. In the event the closing
price of the Company's Common Stock, as reported by the National Association of
Securities Dealer Automotaed Quotation System (NASDAQ), shall equal or exceed
the Loan Call Market Price for a period of fifteen (15) consecutive trading
days ending with the date upon which notice is given to the Optionee hereunder,
the Company shall have the right to notify the Optionee in writing that the
Company demands repayment of the Optionee's relocation loan in the principal
amount of $52,000 and that the Option granted herein
EXHIBIT 10.41 Page 1
<PAGE> 2
shall expire on the 30th day after the date of such written notice to the
Optionee. In such event, this Option shall expire on the 30th day after the
date of such written notice except to the extent it has theretofore been duly
exercised by the Optionee. Nothing in this Section 1.2.1 shall be deemed to
prevent the Company from otherwise demanding payment of the Optionee's
relocation loan in accordance with its terms, except that such other type of
demand shall not affect the expiration date of this Option.
1.2.2. Adjustment of Loan Call Market Price. In case the Company
shall hereafter at any time change as a whole, by split-up, subdivision or
combination in any manner or by the making of a stock dividend, the number of
outstanding shares of Common Stock into a different number of shares of Common
Stock with or without par value, the Loan Call Market Price in effect
immediately prior to such change shall be increased or decreased, as the case
may be, in inverse proportion to such increase or decrease in the number of
such shares outstanding immediately prior to such change.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant to the terms and conditions of Section 6(h) of the
Plan.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the
EXHIBIT 10.41 Page 2
<PAGE> 3
Optionee to alienate, assign, pledge, hypothecate or otherwise dispose of the
option or any right thereunder, except as provided for herein, or in the event
of the levy of any attachment, execution or similar process upon the rights or
interest hereby conferred, the Company may terminate the option by notice to
the Optionee and the option shall thereupon become null and void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal or state
securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.41 Page 3
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1988 INCENTIVE STOCK OPTION PLAN
----------------------------
Date: May 17, 1990
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to JAMES R. DOBELL (the "Optionee"), pursuant to the 1988 Incentive
Stock Option Plan of the Company (the "Plan"), a copy of which is appended
hereto and made a part hereof as Schedule I, an option to purchase a total of
NINE THOUSAND (9,000) shares of Common Stock of the Company at a price of FIVE
DOLLARS AND TWENTY-FIVE CENTS ($5.25) per share (subject to adjustment as
provided in Section 6(i) of the Plan), on the terms and conditions set forth in
the Plan and hereinafter.
This option shall not be exercisable later than on May 17, 1995, (hereinafter
referred to as the "Expiration Date"), except that the Expiration Date may be
accelerated in certain events as provided in Section 1.2 of this Agreement or
as provided in paragraphs 6(e) and 6(f) of the Plan in the event of termination
of employment, death or disability of the Optionee.
1. Vesting and Early Expiration:
1.1. Vesting. Subject to the terms and conditions of this
Agreement, all of the shares of Common Stock subject to this Option shall be
exercisable immediately; provided, however, that this option shall not be
exercisable later than the Expiration Date of May 17, 1995 and, if applicable,
shall not be execisable later than an early expiration date determined in
accordance with Section 1.2.1 below.
1.2. Early Expiration.
1.2.1. Notwithstanding anything to the contrary set forth in this
Agreement, the Option granted by this Agreement SHALL EXPIRE THIRTY (30) DAYS
AFTER THE OPTIONEE HAS RECEIVED WRITTEN NOTICE FROM THE COMPANY THAT THE
COMPANY'S COMMON STOCK HAS TRADED AT THE "LOAN CALL MARKET PRICE," AS THAT TERM
IS HEREIN DEFINED. For the purposes of this Agreement, the "Loan Call Market
Price" shall mean a price of $13.875 per share of Common Stock, subject to
possible adjustment in accordance with Section 1.2.2. In the event the closing
price of the Company's Common Stock, as reported by the National Association of
Securities Dealer Automotaed Quotation System (NASDAQ), shall equal or exceed
the Loan Call Market Price for a period of fifteen (15) consecutive trading
days ending with the date upon which notice is given to the Optionee hereunder,
the Company shall have the right to notify the Optionee in writing that the
Company demands repayment of the Optionee's relocation loan in
EXHIBIT 10.42 Page 1
<PAGE> 2
the principal amount of $52,500 and that the Option granted herein shall expire
on the 30th day after the date of such written notice to the Optionee. In such
event, this Option shall expire on the 30th day after the date of such written
notice except to the extent it has theretofore been duly exercised by the
Optionee. Nothing in this Section 1.2.1 shall be deemed to prevent the Company
from otherwise demanding payment of the Optionee's relocation loan in
accordance with its terms, except that such other type of demand shall not
affect the expiration date of this Option.
1.2.2. Adjustment of Loan Call Market Price. In case the Company
shall hereafter at any time change as a whole, by split-up, subdivision or
combination in any manner or by the making of a stock dividend, the number of
outstanding shares of Common Stock into a different number of shares of Common
Stock with or without par value, the Loan Call Market Price in effect
immediately prior to such change shall be increased or decreased, as the case
may be, in inverse proportion to such increase or decrease in the number of
such shares outstanding immediately prior to such change.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant to the terms and conditions of Section 6(h) of the
Plan.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution
EXHIBIT 10.42 Page 2
<PAGE> 3
or other similar process. In the event of any attempt by the Optionee to
alienate, assign, pledge, hypothecate or otherwise dispose of the option or any
right thereunder, except as provided for herein, or in the event of the levy of
any attachment, execution or similar process upon the rights or interest hereby
conferred, the Company may terminate the option by notice to the Optionee and
the option shall thereupon become null and void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal or state
securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM N. CURTIS
Assistant Secretary
EXHIBIT 10.42 Page 3
<PAGE> 1
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1988 INCENTIVE STOCK OPTION PLAN
----------------------------
Date: May 17, 1990
ROPAK CORPORATION, a Delaware corporation (the "Company"), Hereby
grants to RONALD W. CAMERON (the "Optionee"), pursuant to the 1988 Incentive
Stock Option Plan of the Company (the "Plan"), a copy of which is appended
hereto and made a part hereof as Schedule I, an option to purchase a total of
NINE THOUSAND (9,000) shares of Common Stock of the Company at a price of FIVE
DOLLARS AND TWENTY-FIVE CENTS ($5.25) per share (subject to adjustment as
provided in Section 6(i) of the Plan), on the terms and conditions set forth in
the Plan and hereinafter.
This option shall not be exercisable later than on May 17, 1995, (hereinafter
referred to as the "Expiration Date"), except that the Expiration Date may be
accelerated in certain events as provided in Section 1.2 of this Agreement or
as provided in paragraphs 6(e) and 6(f) of the Plan in the event of termination
of employment, death or disability of the Optionee.
1. Vesting and Early Expiration:
1.1. Vesting. Subject to the terms and conditions of this
Agreement, all of the shares of Common Stock subject to this Option shall be
exercisable immediately; provided, however, that this option shall not be
exercisable later than the Expiration Date of May 17, 1995 and, if applicable,
shall not be execisable later than an early expiration date determined in
accordance with Section 1.2.1 below.
1.2. Early Expiration.
1.2.1. Notwithstanding anything to the contrary set forth in this
Agreement, the Option granted by this Agreement SHALL EXPIRE THIRTY (30) DAYS
AFTER THE OPTIONEE HAS RECEIVED WRITTEN NOTICE FROM THE COMPANY THAT THE
COMPANY'S COMMON STOCK HAS TRADED AT THE "LOAN CALL MARKET PRICE," AS THAT TERM
IS HEREIN DEFINED. For the purposes of this Agreement, the "Loan Call Market
Price" shall mean a price of $12.25 per share of Common Stock, subject to
possible adjustment in accordance with Section 1.2.2. In the event the closing
price of the Company's Common Stock, as reported by the National Association of
Securities Dealer Automotaed Quotation System (NASDAQ), shall equal or exceed
the Loan Call Market Price for a period of fifteen (15) consecutive trading
days ending with the date upon which notice is given to the Optionee hereunder,
the Company shall have the right to notify the Optionee in writing that the
Company demands repayment of the Optionee's relocation loan in the principal
amount of $42,000 and that the Option granted herein
EXHIBIT 10.43 Page 1
<PAGE> 2
shall expire on the 30th day after the date of such written notice to the
Optionee. In such event, this Option shall expire on the 30th day after the
date of such written notice except to the extent it has theretofore been duly
exercised by the Optionee. Nothing in this Section 1.2.1 shall be deemed to
prevent the Company from otherwise demanding payment of the Optionee's
relocation loan in accordance with its terms, except that such other type of
demand shall not affect the expiration date of this Option.
1.2.2. Adjustment of Loan Call Market Price. In case the Company
shall hereafter at any time change as a whole, by split-up, subdivision or
combination in any manner or by the making of a stock dividend, the number of
outstanding shares of Common Stock into a different number of shares of Common
Stock with or without par value, the Loan Call Market Price in effect
immediately prior to such change shall be increased or decreased, as the case
may be, in inverse proportion to such increase or decrease in the number of
such shares outstanding immediately prior to such change.
2. Termination. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant to the terms and conditions of Section 6(h) of the
Plan.
3. Exercise. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of the purchase price of such shares.
4. Non-Transferable. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the
EXHIBIT 10.43 Page 2
<PAGE> 3
Optionee to alienate, assign, pledge, hypothecate or otherwise dispose of the
option or any right thereunder, except as provided for herein, or in the event
of the levy of any attachment, execution or similar process upon the rights or
interest hereby conferred, the Company may terminate the option by notice to
the Optionee and the option shall thereupon become null and void.
5. Miscellaneous.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal or state
securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
Assistant Secretary
EXHIBIT 10.43 Page 3
<PAGE> 1
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1988 INCENTIVE STOCK OPTION PLAN
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
DATE: FEBRUARY 7, 1994
ROPAK CORPORATION, a Delaware corporation (the "Company"), hereby
grants to JAMES R. CONNELL (the "Optionee"), pursuant to the 1988 Incentive
Stock Option Plan of the Company (the "Plan"), a copy of which is attached and
made a part hereof as Schedule I, an option to purchase a total of FIVE
THOUSAND (5,000) shares of Common Stock of the Company at a price of FIVE
DOLLARS ($5.00) per share (subject to adjustment as provided in Section 6(i) of
the Plan), on the terms and conditions set forth in the Plan and hereinafter.
This option shall not be exercisable later than on FEBRUARY 7, 1999,
(hereinafter referred to as the "Expiration Date"), except as otherwise
provided in paragraphs 6(e) and 6(f) of the Plan in the event of termination of
employment, death or disability of the Optionee.
1. VESTING. Subject to the terms and conditions of this
Agreement, this option shall be exercisable as follows: ALL 5,000 SHARES
SUBJECT TO THIS OPTION SHALL BE EXERCISABLE ON OR AFTER FEBRUARY 7, 1994;
PROVIDED, HOWEVER, THAT THIS OPTION SHALL NOT BE EXERCISABLE LATER THAN THE
EXPIRATION DATE AS HEREINABOVE DEFINED.
2. TERMINATION. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant to the terms and conditions of Section 6(h) of the
Plan.
3. EXERCISE. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office of the
Secretary of the Company. Each such notice shall be accompanied by payment in
full of
EXHIBIT 10.44 Page 1
<PAGE> 2
the purchase price of such shares.
4. NON-TRANSFERABLE. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. MISCELLANEOUS.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal or state
securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) Six Month Restriction on Sale or Disposition. No
part of any shares acquired on exercise of this option may be sold or otherwise
disposed of by the Optionee until the expiration of at least six months
following the date on which this option was originally granted by the Company.
In the event this option is exercised within six months of its date of grant,
the securities evidencing the shares issued upon exercise shall bear a legend
referring to the restrictions set forth in this Section.
EXHIBIT 10.44 Page 2
<PAGE> 3
IN WITNESS WHEREOF, this Stock Option Agreement has been executed on
behalf of the Company as of the day and year first written above by the
undersigned officers of the Company.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
William H. Roper, Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
William M. Curtis, Assistant Secretary
EXHIBIT 10.44 Page 3
<PAGE> 1
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
ROPAK CORPORATION
STOCK OPTION AGREEMENT
UNDER 1988 INCENTIVE STOCK OPTION PLAN
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
DATE: FEBRUARY 7, 1994
ROPAK CORPORATION, a Delaware corporation (the "Company"), hereby
grants to RONALD W. CAMERON (the "Optionee"), pursuant to the 1988 Incentive
Stock Option Plan of the Company (the "Plan"), a copy of which is attached and
made a part hereof as Schedule I, an option to purchase a total of TWO THOUSAND
FIVE HUNDRED (2,500) shares of Common Stock of the Company at a price of FIVE
DOLLARS ($5.00) per share (subject to adjustment as provided in Section 6(i) of
the Plan), on the terms and conditions set forth in the Plan and hereinafter.
This option shall not be exercisable later than on FEBRUARY 7, 1999,
(hereinafter referred to as the "Expiration Date"), except as otherwise
provided in paragraphs 6(e) and 6(f) of the Plan in the event of termination of
employment, death or disability of the Optionee.
1. VESTING. Subject to the terms and conditions of this
Agreement, this option shall be exercisable as follows: ALL 2,500 SHARES
SUBJECT TO THIS OPTION SHALL BE EXERCISABLE ON OR AFTER FEBRUARY 7, 1994;
PROVIDED, HOWEVER, THAT THIS OPTION SHALL NOT BE EXERCISABLE LATER THAN THE
EXPIRATION DATE AS HEREINABOVE DEFINED.
2. TERMINATION. This option and all rights hereunder to the
extent such rights shall not have been exercised shall terminate and become
null and void if the Optionee ceases to be an employee of the Company or any of
its subsidiaries (whether by resignation, retirement, dismissal, death or
otherwise), except that (a) in the event of the death or disability of the
Optionee while in the employ of the Company, this option may be exercised
within the applicable period of time and by the persons indicated in Section
6(f) of the Plan, and (b) in the event of the termination of the Optionee's
employment by the Company for any other reason, this option shall terminate and
may not be exercised after the expiration of ninety (90) days from the date of
such termination; provided, however, that in no event may this option be
exercised after the Expiration Date. Notwithstanding the foregoing, this
option may in no event be exercised by any one to any extent in the event of a
voluntary dissolution, liquidation or winding up of the affairs of the Company
or in the event of merger into, consolidation with, or sale or transfer of all
or substantially all of the assets of the Company, except under the
circumstances and pursuant to the terms and conditions of Section 6(h) of the
Plan.
3. EXERCISE. This option is exercisable with respect to all, or
from time to time with respect to any portion, of the shares then subject to
such exercise, by delivering written notice of such exercise, in the form
prescribed by the Stock Option Committee, to the principal office
EXHIBIT 10.45 Page 1
<PAGE> 2
of the Secretary of the Company. Each such notice shall be accompanied by
payment in full of the purchase price of such shares.
4. NON-TRANSFERABLE. This option shall during the Optionee's
lifetime be exercisable only by him, and neither it nor any right thereunder
shall be transferable except by will or laws of descent and distribution, or be
subject to attachment, execution or other similar process. In the event of any
attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise
dispose of the option or any right thereunder, except as provided for herein,
or in the event of the levy of any attachment, execution or similar process
upon the rights or interest hereby conferred, the Company may terminate the
option by notice to the Optionee and the option shall thereupon become null and
void.
5. MISCELLANEOUS.
(a) Neither the granting of this option nor the exercise
thereof shall be construed as conferring upon the Optionee any right to
continue in the employment of the Company or any of its subsidiaries, or as
interfering with or restricting in any way the right of such corporations to
terminate such employment at any time.
(b) Neither the Optionee, nor any person entitled to
exercise his rights in the event of his death, shall have any of the rights of
a stockholder with respect to the shares subject to the option, except to the
extent that certificates for such shares shall have been issued upon exercise
of the option as provided for herein.
(c) The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in the issuance or transfer of any
shares of Common Stock subject to this option which results from the inability
of the Company to obtain, or in any delay in obtaining, from each regulatory
body having jurisdiction all requisite authority to issue or transfer shares of
Common Stock of the Company in satisfaction of this option if counsel for the
Company deems such authority necessary for the lawful issuance or transfer of
any such shares.
(d) No Common Stock acquired by exercise of this option
shall be sold or otherwise disposed of in violation of any federal or state
securities law or regulation.
(e) This option shall be exercised in accordance with
such administrative regulations as the Stock Option Committee may from time to
time adopt. All decisions of the Stock Option Committee upon any question
arising under the Plan or under this instrument shall be conclusive and binding
upon the Optionee and all other persons.
(f) Six Month Restriction on Sale or Disposition. No
part of any shares acquired on exercise of this option may be sold or otherwise
disposed of by the Optionee until the expiration of at least six months
following the date on which this option was originally granted by the Company.
In the event this option is exercised within six months of its date of grant,
the securities evidencing the shares issued upon exercise shall bear a legend
referring to the restrictions set forth in this Section.
EXHIBIT 10.45 Page 2
<PAGE> 3
IN WITNESS WHEREOF, this Stock Option Agreement has been executed on
behalf of the Company as of the day and year first written above by the
undersigned officers of the Company.
ROPAK CORPORATION
[CORPORATE SEAL] By: /S/ WILLIAM H. ROPER
William H. Roper, Chairman
ATTEST:
/S/ WILLIAM M. CURTIS
William M. Curtis, Assistant Secretary
EXHIBIT 10.45 Page 3
<PAGE> 1
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT"). ACCORDINGLY, NO TRANSFER OF THESE
SECURITIES OR ANY INTEREST THEREIN MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT UNLESS THE ISSUER HAS RECEIVED AN OPINION
OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION
UNDER THE ACT.
WARRANT
25,000 Shares
Void After June 30, 1990
ROPAK CORPORATION
(Incorporated under the laws of the State of California)
This is to certify that, in consideration of the payment of $.01 per
Warrant, receipt of which is hereby acknowledged, JET PARTNERS, or assigns
(hereinafter collectively called the "holder"), is entitled to purchase from
ROPAK CORPORATION (hereinafter called the "Company"), at the Warrant Price per
share (as hereinafter defined) subject to adjustment as hereinafter provided
(hereinafter called the "Warrant Price"), on or before 5:O0 P.M. (Los Angeles
time) on June 30, 1990 unless terminated earlier as provided in Section 2.1
hereof, TWENTY-FIVE THOUSAND (25,000) fully paid and non-assessable shares of
Common Stock of the Company (hereinafter called "Common Stock"), subject to the
terms and conditions hereof, including such adjustments as may be required
under the terms hereof.
Pursuant to an agreement whereby Terry L. Nagelvoort, a shareholder of
NAGELVOORT & COMPANY, INC. and an affiliate of JET PARTNERS, has agreed to
serve as a member of the Company's Board of Directors and the agreement of
Nagelvoort & Company to provide financial consulting services to the Company
upon request, the Company issued warrants (hereinafter called the "Warrants")
covering an aggregate of 25,000 shares of the Common Stock of the Company to
JET PARTNERS in consideration of a cash purchase price of $.01 per Warrant.
SUBJECT TO ADJUSTMENT AS HEREINAFTER PROVIDED, THE WARRANT PRICE SHALL
BE EIGHT AND NO/1OOTHS DOLLARS ($8.00) PER SHARE.
This Warrant may be exercised by the holder as hereinabove provided as
to the whole or any part of the shares of Common Stock covered hereby, by
surrender of this Warrant at the principal office of any transfer agent for the
Common Stock, or, if the Company shall not have any transfer agent for the
Common Stock, at the principal office of the Company (any such transfer agent,
or the Company acting hereunder, being hereinafter called the "Warrant Agent"),
with the statement of election to subscribe attached
EXHIBIT 10.46 Page 1
<PAGE> 2
hereto duly executed and upon payment to the Company of the Warrant Price for
shares so purchased in cash or by certified check or bank draft. Thereupon
(except that if, upon such date, the stock transfer books of the Company shall
be closed, then upon the next succeeding date on which such transfer books are
open), this Warrant shall be deemed to have been exercised and the person
exercising the same to have become a holder of record of shares of Common Stock
(or of the other securities or property to which such person is entitled upon
such exercise) purchased hereunder for all purposes, and certificates for such
shares so purchased shall be delivered to the purchaser within a reasonable
time (not exceeding 5 business days, except while the transfer books of
the Company are closed) after this Warrant shall have been exercised as
set forth hereinabove. If this Warrant shall be exercised in respect of a
part only of the shares of Common Stock covered hereby, the holder shall be
entitled to receive a similar warrant of like tenor and date covering the
number of shares in respect of which this Warrant shall not have been
exercised.
This Warrant is exchangeable, without charge or expense to holder,
upon the surrender hereof by the holder at said principal office of the Warrant
Agent, for new warrants of like tenor and date representing in the aggregate
the right to subscribe for and purchase the number of shares which may be
subscribed for and purchased hereunder.
In the case of the exercise hereof in part only, the Company will
deliver to the owner a new Warrant of like tenor (it being understood that the
Warrant Price set forth therein shall be based upon the issuance date of this
original Warrant) in the name of the owner evidencing the right to purchase
the number of shares as to which this Warrant has not been exercised, all as
provided in paragraph 3.2 below.
The Company covenants and agrees that all shares which may be issued
upon the exercise of the rights represented by this Warrant will, upon
issuance, be validly issued, fully paid and non-assessable and free from all
taxes, liens and charges with respect to the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue). The
Company further covenants and agrees that, during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized and reserved a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this Warrant.
The Company represents and warrants that this Warrant and the shares
of Common Stock covered hereby have been duly and validly authorized by the
Company, and Nagelvoort & Co. acknowledges that such securities have not been
registered under the Securities Act of 1933, as amended, or qualified by permit
under the California Corporate Securities Act of 1968, as amended, or any other
blue sky state law, in reliance upon the Company's understanding that no
EXHIBIT 10.46 Page 2
<PAGE> 3
such registration or qualification is required prior to the offer and sale
hereof to the registered holder of this Warrant and that issuance of this
Warrant and Common Stock issuable upon exercise by the registered holder is
exempt from the registration (qualification) requirements of said Acts for
transactions by an issuer not involving a public offering.
The rights of the holder of this Warrant shall be subject to the
following terms and conditions:
1.1 In case the Company shall hereafter at any time change as a
whole, by split-up, subdivision or combination in any manner or by the making
of a stock dividend, the number of outstanding shares of Common Stock into a
different number of shares of Common Stock with or without par value, (i) the
number of shares of Common Stock which immediately prior to such change the
holder of this Warrant shall have been entitled to purchase pursuant to this
Warrant shall be increased or decreased in direct proportion to the increase or
decrease, respectively, in the number of shares of Common Stock outstanding
immediately prior to such change, and (ii) the Warrant Price in effect
immediately prior to such change shall be increased or decreased, as the case
may be, in inverse proportion to such increase or decrease in the number of
such shares outstanding immediately prior to such change; in any such event,
the rights of the holder of this Warrant to an adjustment in the number of
shares of Common Stock purchasable on exercise of this Warrant as herein
provided shall continue and be preserved in respect of any shares, securities,
or assets which the holder of this Warrant becomes entitled to purchase
hereafter.
1.2 In case of any capital reorganization or any reclassification
of the capital stock of the Company or in case of the consolidation or merger
of the Company with another corporation, or in case of any sale, transfer or
other disposition to another corporation of all or substantially all the
property, assets, business and goodwill of the Company as an entirety, as the
case may be, the holder of this Warrant shall thereafter be entitled to
purchase [and it shall be a condition to the consummation of any such
reorganization, reclassification, consolidation, merger, sale, transfer or
other disposition, that appropriate provision shall be made so that such holder
shall thereafter be entitled to purchase) the kind and amount of shares of
stock and other securities and property receivable, upon such capital
reorganization, reclassification of capital stock, consideration, merger, sale,
transfer or other disposition, by a holder of the number of shares of Common
Stock which this Warrant entitled the holder thereof to purchase immediately
prior to such capital reorganization, reclassification of capital stock,
consolidation, merger, sale,
EXHIBIT 10.46 Page 3
<PAGE> 4
transfer or other disposition; and in any such case appropriate adjustments [as
determined in good faith by the Board of Directors of the Company or of such
other corporation, as the case may be) shall be made in the application of the
provisions herein set forth with respect to rights and interests thereafter of
the holder of this Warrant, to the end that the provisions set forth herein
[including the specified changes in and other adjustments of the Warrant Price)
shall thereafter be applicable, as near as reasonably may be, in relation to
any shares or other property thereafter purchasable upon the exercise of this
Warrant.
1.3 In case the Company shall hereafter at any time declare a
dividend upon shares of Common Stock payable otherwise than out of retained
earnings or otherwise than in shares Common Stock or in stock or obligations
directly or indirectly convertible into or exchangeable for Common Stock, the
holder of this Warrant shall, upon exercise of this Warrant in whole or in
part, be entitled to receive, in addition to the number of shares of Common
Stock deliverable upon such exercise against payment of the Warrant Price
therefor, but without further consideration, the cash, stock or other
securities or property which the holder of this Warrant would have received as
dividends [otherwise than out of such retained earnings and otherwise than in
shares of Common Stock or in such convertible or exchangeable stock or
obligations) if, continuously since the date set forth at the foot of this
Warrant, such holder (i) had been the holder of record of the number of shares
of Common Stock deliverable upon such exercise and (ii) had retained all
dividends in stock or other securities other than shares of Common Stock or
such convertible or exchangeable stock or obligations) paid or payable in
respect of said number of shares of Common Stock or in respect of any such
stock or other securities so paid or payable as such dividends. For purposes
of this Section 1.3, a dividend payable otherwise than in cash shall be
considered to be payable out of retained earnings only to the extent of the
fair value of such dividend as determined the Board of Directors of the
Company.
If the Company shall, at any time during the life of this Warrant,
declare a dividend payable in cash on its Common Stock and shall at
substantially the same time offer to its shareholders a right to purchase new
Common Stock from the proceeds of such dividend or for an amount substantially
equal to the dividend, all Common Stock so issued shall, for the purpose of
this Warrant, be deemed to have been issued as a share dividend. Any dividend
paid or distributed upon the Common Stock and shares of any other class of
securities convertible into Common Stock shall be treated as a dividend paid in
Common Stock to the extent that the shares of Common Stock are issuable upon
the conversion thereof. The exercise of any Warrants by holder at the initial
Warrant Price or any higher price shall not affect
EXHIBIT 10.46 Page 4
<PAGE> 5
the subsequent Warrant Price and shall not be counted for purposes of
subsequent adjustments thereto.
1.4 No certificates for fractional shares of Common Stock shall be
issued upon the exercise of this Warrant, but in lieu thereof the Company
shall, upon exercise in full of this Warrant, purchase out of funds legally
available therefor any such fractional interest for an amount in cash equal to
the current market value of such fractional interest calculated to the nearest
cent, computed on the basis of the high bid prices, as reported by National
Quotation Bureau, Inc., of the Common Stock in the over-the-counter market on
the most recent day within ten days prior to the date of such exercise for
which such bid prices shall have been so reported, or, if the Common Stock is
listed on a stock exchange registered with the Securities and Exchange
Commission, the last reported sale price on such exchange on such day; and if
there shall have been no sale on said day, then the computation shall be made
on the basis of the last reported sale price on such exchange within ten days
prior to such date. If there have been no reported bid prices, or reported
sales prices, as the case may be, such ten days, the current market value shall
be fixed in a manner determined in good faith by the Company.
1.5 Whenever the Warrant Price is adjusted, as herein provided,
the Company shall forthwith file with the Warrant Agent a statement signed by
the President, Chairman of the Board, or any one of the Vice Presidents of the
Company and by its Treasurer or an Assistant Treasurer, stating the adjusted
Warrant Price determined as herein provided. Such statement shall show in
details the facts requiring such adjustment, including a statement of the
consideration received by the Company for any additional securities issued.
Whenever the Warrant Price is adjusted, the Company will forthwith cause a
notice stating the adjustment and the Warrant Price to be mailed to the
registered holder of this Warrant at the address of such holder shown on the
books of the Company. Where appropriate, such notice may be given in advance
and included as part of a notice required to be mailed under the provisions of
Section 1.6.
1.6 In case at any time:
(i) the Company shall pay any dividend payable in stock
upon its Common Stock or make any distribution (other than
cash dividends) to the holders of its Common Stock; or
(ii) the Company shall effect any capital reorganization
or any reclassification of or change in the outstanding
capital stock of the Company (other than a change in par
value, or a change from par value to no par value, or a change
from no par value to par
EXHIBIT 10.46 Page 5
<PAGE> 6
value, or a change resulting solely from a subdivision or
combination of outstanding shares of Common Stock), or any
consolidation or merger or any sale, transfer or other
disposition of all or substantially all its property,
assets, business and goodwill as an entirety, or the voluntary
or involuntary liquidation, dissolution or winding up of the
Company; or
(iii) the Company shall declare a dividend upon shares of
its Common Stock payable otherwise than out of retained
earnings or otherwise than in shares of Common Stock or any
stock or obligations directly or indirectly convertible into
or exchangeable for Common Stock;
then, in any such case, the Company shall cause notice at least 10 days prior
to the record date or the date on which the transfer books of the Company shall
be closed to be mailed to the Warrant Agent and to the registered holder of
this Warrant at the address of such holder shown on the books of the Company.
Such notice shall also specify the date on which the books of the Company shall
close, or a record be taken, for such stock dividend, or the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution, winding up or dividend, as the case may
be, shall take place, and the date of participation therein by the holders of
Common Stock if any such date is to be fixed, and shall also set forth such
facts with respect thereto as shall be reasonably necessary to indicate the
effect of such action on the rights of the holders of the Warrants.
1.7 In case at any time the Company shall pay any cash dividend
payable upon its Common Stock, and in any such case, the Company shall cause
notice at least five (5) days prior to the record date for such cash dividend
or the date on which the transfer books of the Company shall be closed, to be
given by publication at least once in a daily newspaper printed in the English
language and published and of general circulation in the City of Los Angeles,
California, and such notice shall specify the amount of the cash dividend and
the date on which the books of the Company shall close, or a record be taken,
for such cash dividend; provided, however, that such notice need not be
published if notice of such dividend shall have been mailed to the registered
holder of this Warrant at the address of such holder shown on the books of the
Company at least ten (10) days prior to such record date.
2.1 This Warrant, to the extent not theretofore exercised, will
terminate at 5:O0 P.M. (Los Angeles Time) on June 30, 1990.
2.2 The holder of this Warrant, by acceptance hereof,
EXHIBIT 10.46 Page 6
<PAGE> 7
agrees to give written notice to the Company before exercising or
selling this Warrant of such holder's intention to do so, describing briefly
the manner of any proposed sale of this Warrant or such holder's intention as
to the disposition to be made of shares of Common Stock issuable upon such
proposed exercise hereof. Promptly upon receiving such written notice, the
Company shall present copies thereof to counsel for the Company for such
counsel's opinion. If in the opinion of such counsel the proposed exercise or
sale may be effected without registration under the Securities Act of 1933 of
this Warrant or the shares of Common Stock issuable on the exercise hereof,
the Company, as promptly as practicable, shall notify such holder of such
opinion, whereupon such holder shall be entitled to sell this Warrant, or to
exercise this Warrant in accordance with its terms and dispose of the shares
received upon such exercise, all in accordance with the terms of the notice
delivered by such holder to the Company. If in the opinion of such counsel the
proposed exercise or sale described in said written notice given by the holder
of this Warrant (or any substantially concurrent written notice given by any
other holder of one or more Warrants or shares of Common Stock issued on the
prior exercise in whole or in part of any warrant) may not be effected without
registration of this Warrant or the shares of Common Stock issuable on the
exercise hereof, the Company shall promptly give written notice of such opinion
of this Warrant. The holder of this Warrant agrees that, if the proposed
exercise or sale by such holder cannot, in the opinion of such counsel, be
effected without such registration, the holder will not so exercise or sell
this Warrant or the shares of Common Stock issuable upon the exercise hereof
unless this Warrant or the shares of Common Stock issuable upon the exercise
hereof unless this Warrant or said shares of Common Stock are registered by the
Company.
3.1 The issue of any stock or other certificate upon the exercise
of this Warrant shall be made without charge to the registered holder hereof
for any tax in respect of the issue of such certificate. The Company shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any certificate in a name other
than that of the registered holder of this Warrant, and the Company shall not
be required to issue or deliver any such certificate unless and until the
person or persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
3.2 This Warrant and all rights hereunder or any portion thereof
are transferable on the books of the Company, upon surrender of this Warrant,
with the form of assignment attached hereto duly executed by the registered
holder hereof or by his attorney duly authorized in writing, to the Warrant
agent at its principal office hereinabove referred
EXHIBIT 10.46 Page 7
<PAGE> 8
to, and thereupon there shall be issued in the name of the transferee or
transferees, in exchange for this Warrant, a new Warrant or Warrants of like
tenor and date, representing in the aggregate the right to subscribe for and
purchase the number of shares, or such portion thereof as shall be so
transferred, which may be subscribed for and purchased hereunder and if there
shall be any balance of such shares not so transferred, which may be subscribed
for and purchased hereunder and if there shall be any balance of such shares
not so transferred, there shall be issued in the name of the registered holder
of this Warrant, a new Warrant or Warrants of like tenor and date representing
in the aggregate the right to subscribe for and purchase the balance of the
number of shares which may be subscribed for and purchased hereunder.
3.3 If this Warrant shall be lost, stolen, mutilated or destroyed,
the Company may instruct the Warrant Agent, on such terms as to indemnify or
otherwise as the Company may in its discretion impose, to issue a new Warrant
of like denomination, tenor and date as the Warrant so lost, stolen, mutilated
or destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant shall be at any time enforceable by anyone.
3.4 The Company and any Warrant Agent may deem and treat the
registered holder of this Warrant as the absolute owner of this Warrant for all
purposes and shall not be affected by any notice to the contrary.
3.5 This Warrant shall not entitle the holder to any rights of a
stockholder of the Company, either at law or in equity, including, without
limitation, the right to vote, to receive dividends and other distributions, to
exercise any preemptive rights or to receive any notice of meetings of
stockholders or of any other proceedings of the Company.
3.6 This Warrant shall be governed by the laws of the State of
California.
Dated: July 1, 1985
ROPAK CORPORATION
By: /s/ WILLIAM H. ROPER
Chairman of the Board
EXHIBIT 10.46 Page 8
<PAGE> 1
ROPAK
Corporation
November 28, 1989
JET Partners
c/o Terry L. Nagelvoort
26 Broadway
New York, NY 10004
Re: Common Stock Purchase Warrant dated July 1, 1985 issued
to Jet Partners by Ropak Corporation
Gentlemen:
This will confirm, pursuant to the authorization of the Board of
Directors of Ropak Corporation by resolution adopted on July 25, 1989, that the
expiration date of the above-referenced warrant ("Warrant") has been extended
from June 30, 1990 to June 30, 1995. Accordingly, the references to June 30,
1990 appearing in the eighth line of the first paragraph and in Section 2.1 of
the Warrant are hereby amended to read June 30, 1995. Please retain a copy of
this letter with your original copy of the Warrant.
Pursuant to the antidilution provisions of the Warrant, the Warrant
now covers an aggregate of 30,250 shares of Ropak common stock exercisable at a
price of $6.61157 per share to give effect to adjustments required by 10% stock
dividends paid by Ropak Corporation on June 30, 1988 and on June 30, 1989.
Sincerely yours,
ROPAK CORPORATION
By: /s/ WILLIAM H. ROPER
William H. Roper
Chairman of the Board
Corporate Office
660 S. State College Blvd.
Fullerton, CA 92631
714-870-9757
FAX: 714-447-3871
EXHIBIT 10.47 Page 1
<PAGE> 1
Law Office of William M. Curtis
Attorney at Law
25241 Buckskin Drive
Laguna Hills, California 92653-5736
--------------------
Telephone (714) 831-0400
FAX (714) 831-4141
VIA FAX (212) 308-3939
ORIGINAL TO FOLLOW BY MAIL
October 17, 1994
Terry L. Nagelvoort
Nagelvoort & Company, Inc.
450 Park Avenue
New York, NY 10022
RE: ROPAK WARRANTS ISSUED TO JET PARTNERS
Dear Skip:
The terms of the common stock purchase warrants issued by Ropak
Corporation to Jet Partners requires that the warrant holder be notified
whenever there are events necessitating an adjustment to the warrant exercise
price and number of shares covered by the warrants.
My files indicate you were advised of adjustments resulting from the
10% stock dividends declared on the common stock as of June 30, 1988 and June
30, 1989. As you know, there were two subsequent 10% stock dividends declared
in 1990 and 1991. The attached sheet indicates the effect of all adjustments
required to date for stock dividends declared by Ropak Corporation. The
warrants, therefore, now cover an aggregate of 436,602 shares at a warrant
exercise price of approximately $5.4641 per share.
Sincerely,
/S/ WILLIAM M. CURTIS
William M. Curtis
Assistant Secretary,
Ropak Corporation
WMC/ams
cc: Ronald W. Cameron
EXHIBIT 10.48
<PAGE> 1
Law Office of William M. Curtis
Attorney at Law
25241 Buckskin Drive
Laguna Hills, California 92653-5736
--------------------
Telephone (714) 831-0400
FAX (714) 831-4141
VIA FAX (212) 308-3939
March 3, 1995
Terry L. Nagelvoort
Nagelvoort & Company, Inc.
450 Park Avenue
New York, NY 10022
RE: ROPAK CORPORATION WARRANTS
Dear Skip:
Per my conversation with your son earlier this week, this will confirm
the agreement that ROPAK Corporation has offered and agrees to repurchase all
of the common stock purchase warrants in ROPAK held by Jet Partners at a price
equal to the difference between $11.00 per share less the applicable exercise
price per share. We calculate this figure to be $202,627.50 (representing the
difference between $402,627.50 [$11.00 x 36,602.5 warrants] minus the $200,000
exercise price).
To indicate your agreement and acceptance of this offer, please
complete the information below as to wire-transfer instructions for the
purchase price. You should then return to my office (i) a copy of this letter
signed on behalf of Jet Partners, (ii) the attached TRANSFER OF WARRANT form
signed by Jet Partners (it is not necessary to have your signature guaranteed)
and (iii) if it can be located, the original of the warrant agreement or,
alternatively, a brief letter from you stating the warrant agreement cannot be
located and you represent it has not been assigned to any third party. We will
instruct ROPAK to wire-transfer funds upon receipt by FAX of items (i) and (ii)
properly executed (with the understanding that originals of items (i), (ii) and
(iii) will follow by courier).
The wire transfer information required is as follows:
BANK ABA Routing Number: 021-000-128
------------------------------
Name of BANK Chemical Bank
------------------------------------------
Bank Address 270 Park Avenue
------------------------------------------
New York, NY 10022
------------------------------------------
Bank contact person and telephone number:
Elizabeth Finn (212) 270-0172
------------------------------------------
EXHIBIT 10.49
<PAGE> 2
Terry L. Nagelvoort
March 3, 1995
Page Page 2
Bank account name Nagelvoort & Company, Inc.
-------------------------------------
For credit to bank account number XXX-XXXXXX
---------------------
ROPAK's offer will be valid if accepted by you in writing via FAX as
indicated above at any time on or prior to the close of business on Wednesday,
March 8, 1995. Also enclosed for your reference is historical correspondence
between us concerning the number of warrants and exercise price per share to
reflect adjustments for stock dividends.
In order to confirm in writing the substance of our prior discussions,
I informed you that ROPAK believes LinPac Mouldings Limited remains interested
in pursuing the acquisition of the minority equity interest in ROPAK, probably
either by a tender offer or a merger proposal to the shareholders of ROPAK. We
believe that is a logical conclusion that may be inferred from the continued
purchase by LinPac of additional Ropak shares and the agreement by LinPac to
nominate a majority of ROPAK's board. However, LinPac has not provided ROPAK
with confirmation of that intent nor any indication of the timing of such a
proposed transaction or the price that LinPac would propose in such a
transaction. The Roper family has informed LinPac Mouldings Limited that the
Roper family, absent material adverse changes in the affairs of ROPAK, would be
opposed to any efforts by LinPac to acquire the minority interest in ROPAK at
less than the $10.50 per share recently paid to members of the Roper Family on
February 27, 1995 and would encourage a formal resolution by LinPac of its
intentions by April 30, 1995 if that is legally possible. We are advised via
Schedule 13D filings made by Chesapeake Management and LinPac Mouldings that
LinPac has purchased the shares formerly held by Chesapeake's affiliates at a
price of $11.00 per share. ROPAK is not aware of any other recent purchases of
ROPAK stock at a price higher than $11.00 either by LinPac or others.
Sincerely,
/S/ WILLIAM M. CURTIS
William M. Curtis
Corporate counsel and
Assistant Secretary
ROPAK Corporation
ACCEPTED & AGREED:
JET PARTNERS
By: /S/ TERRY L. NAGELVOORT
Title: Partner (Managing Partner) Jet Partners
cc: William H. Roper, Ropak Corporation
Ronald W. Cameron, Ropak Corporation
EXHIBIT 10.49
<PAGE> 1
EXHIBIT 10.50
<PAGE> 2
ROPAK CORPORATION
SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
(AS AMENDED AND RESTATED DECEMBER 1, 1994)
Article I
Purpose
It is the purpose of this plan to provide to those individuals upon whom
great responsibilities for the successful administration and management of the
Company and its subsidiaries rest, and whose past and future contributions to
the Company are recognized as critical to the continued success of the Company,
provision for certain additional benefits in consideration for their
contributions to the Company. The term "Company" as used in this Plan, shall
mean and include Ropak Corporation, a Delaware corporation, and its
consolidated subsidiary corporations and successors. It is intended that this
Plan constitute a Plan "maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees, "within the meaning of Section 201 (2) et seq. of the Employee
Retirement Income Security Act of 1974. This amended and restated Plan
supersedes in its entirety all prior versions of this Plan and all prior
Supplemental Employee Benefits Agreements under this Plan.
Article II
Eligibility
2.1 Initial Participants
The initial participants in the plan shall be the following persons
1. W. H. Roper
2. R. E. Roper
3. C. R. Roper
4. R. W. Cameron
5. J. R. Connell
6. J. R. Dobell
7. Ralph Kraft
2
<PAGE> 3
2.2 Additional Participants
From time to time the Board of Directors of the Company may designate
additional salaried officers and key employees of the Company or any of its
subsidiaries to participate in this Plan (hereinafter calld "Participants").
Directors of the Company, who are not also salaried officers or employees of
the Company, will not be eligible to receive supplemental benefits.
Article III
Supplemental Employee Benefits Agreement
3.1 Supplemental Employee Benefits Agreement
For each employee who is or who hereafter becomes a participant in this
Plan, a "Supplemental Employee Benefits Agreement" shall be attached as an
Exhibit to this Plan Document for the purpose of enumerating the benefits
payable under this Plan to such Participant. Such Supplemental Employee
Benefits Agreements shall be executed or initialed on behalf of the covered
Participant by such covered participant, on behalf of the Company by a member
of the Board of Directors who is not also a participant of the Plan, and on
behalf of the Trustee, by an officer of the Trustee.
3.2 Modifications
A Supplemental Employee Benefits Agreement may be modified by mutual
agreement of the affected Participant and the Company, by means of a written
amendment to the Supplemental Employee Benefits Agreements, which amendment
shall be delivered to the Trustee and attached by the Trustee as an Exhibit to
this plan, together with the Supplemental Employee Benefits Agreement which it
purports to modify. No Participant shall be paid any amount from assets of the
Trust created hereunder unless such Participant executes a modified
Supplemental Employee Benefits Agreement in the form attached hereto as Exhibit
A. For each such Participant, such modified Supplemental Employee Benefits
Agreement shall be referred to as the initial 1994 Supplemental Employee
Benefits Agreement. Notwithstanding the preceding provisions of this Article
III, no modification of Initial 1994 Supplemental Employee Benefits Agreement
shall become effective unless and until the Trustee determines that the
provisions of such purported modification do not, on an actuarially
determined basis as of the date of the purported modification, adversely affect
the ability of the Trust to discharge accrued obligations of the Trust (whether
or not yet vested) pertaining to this Plan. To the extent determined necessary
for this purpose, the Trustee may engage such actuaries as the Trustee deems
appropriate, and the reasonable cost of such actuaries shall be borne by the
Company.
3
<PAGE> 4
Article IV
Nature of Obligations
4.1 Unsecured General Creditor
Neither Participants, spouses of Participants nor any other person shall
have any legal or equitable rights, interests, or claims in any specific
property or assets of the Company, nor shall they be beneficiaries of, or have
any rights, claims, or interests in any life insurance policies, annuity
contracts, or the proceeds therefrom owned or which may be acquired by the
Company ("Policies"). The Company's obligation under the Plan shall be merely
that of an unfunded and unsecured promise of the Company to pay money in the
future.
4.2 Trust
Contemporaneous with the execution of this amendment and restatement of
the plan, the company has entered into a trust agreement providing for the
creation of a trust to hold assets associated with the liability of this Plan
to pay benefits to Participants and beneficiaries. Such trust is intended to
be a grantor trust, of which the Company is the grantor, within the meaning of
Subpart E, Part I Subchapter J, Chapter 1, Subtitle A of the Internal Revenue
Code of 1986, as amended, and shall be construed in a manner consistent with
such intention. Amounts paid by such trust to a Participant shall apply as an
offset to any obligations of the Company under this Plan, but under no
circumstances shall the existence of such trust or the payment of benefits
thereunder relieve the Company from its obligations to finally and fully pay
all benefits due a Participant or beneficiary hereunder.
Article V
Vesting
Each Participant shall become fully vested and have a nonforfeitable
interest in his retirement benefits under Article VI upon attainment of age 60
while employed with the Company.
Article VI
Payment of Retirement Benefits
In the case of a participant who has become vested in his or her
retirement benefits pursuant to the provisions of Article V, the Company will
make monthly installment payments to the Participant pursuant to the
Participant's Supplemental Employee Benefits Agreement for a period of ten
(10) consecutive years. Said payments shall begin on the first business day
following the Participant's 65th birthday and shall continue on the first
business day of each month thereafter until the specified number of installments
have been paid. Unless otherwise provided by the express terms of an
applicable Supplemental Employee Benefits Agreement, at the election of a
Participant who has become vested in accordance with the provisions of Article
V, such benefit payments may commence on such earlier date as the Participant
designates,
4
<PAGE> 5
provided that (a) such date is on or after the date as of which such
Participant's employment terminates for any reason other than death, and (b)
the date of the Participant's termination of employment is after the date as of
which the Participant became vested pursuant to the provisions of Article V.
Article VII
Benefits Payable After Death
7.1 Death Prior to Termination of Employment
If a Participant dies prior to the termination of his or her employment by
the Company, then, in lieu of any other benefit under this Plan, there shall be
paid to the designated beneficiary of the Participant, the same number of
payments, in the same amount, as would have been payable to the Participant had
the Participant retired on his or her 65th birthday and had the Participant
then commenced to receive benefits. Benefits payable to beneficiaries of the
Participant shall begin on the first business day following the Participant's
death and continue on the first business day of each month thereafter until the
specified number of installments have been paid.
7.2 Death After Termination of Employment
If a Participant dies after his or her employment by the Company
terminates and after such Participant's retirement benefits under Article VII
became vested under Article V and could have commenced, any benefits remaining
unpaid shall be paid to the Participants designated beneficiary in installments
on such dates and in such amounts as would have been payable to the Participant
had the Participant lived.
Article VIII
Benefits Payable in the Event of Termination for Reasons Other that
Retirement or Death
(A) In the event the employment of a Participant terminates for
any reason (other than death) after becoming a Participant but prior to
becoming vested in retirement benefits under Article V, the Participant shall
be eligible for a Specified severance payment, the total amount of which shall
be set forth in the Participant's respective Supplemental Benefits Agreement.
No death benefit shall be payable to any person whose death occurs after
termination of employment and before vesting occurs in such Participant's
retirement benefits except that if such death occurs under such circumstances
and prior to the Participant's receipt of his or her severance payment
contemplated by this Article VIII and such Participant, such severance payment
shall be made to such Participant's designated beneficiary.
(B) Notwithstanding the preceding provisions of this Article VIII,
if the employment of a Participant terminates for any reason (other than
death) prior to becoming vested in retirement benefits under Article V but
after completion of fifteen anniversary years of service, such participant may
elect to receive, for a period of ten (10) consecutive years commencing on the
5
<PAGE> 6
first day of the month following the latter of his termination of employment or
his attainment of age 60, a benefit in the annual amount of $25,000. If
elected by a participant, such benefit shall be in lieu of any other benefit
hereunder (and Article VIII shall not be paid).
Article IX
Beneficiaries
A Participant may designate one or more primary beneficiaries or
contingent beneficiaries to receive all or a specified part of any supplemental
benefits which, at the time of his or her death, or termination, may remain
unpaid under this Plan and may change or revoke any such designation from time
to time. No such designation, change or revocation shall be effective unless
executed by the Participant and accepted by the Company during the
Participant's lifetime. No such change or revocation will require the consent
of any beneficiary theretofore designated by the Participant.
If a Participant fails to designate a beneficiary, or designates a
beneficiary and thereafter revokes such designation without naming another
beneficiary, or designates one or more beneficiaries and all such beneficiaries
so designated fail to survive the Participant, then the beneficiary of
supplemental benefits, or any part thereof as to which the Participant's
designation fails, as the case may be, will be the representative of the
Participant's estate.
Unless the Participant has otherwise specified in the beneficiary
designation, the beneficiary or beneficiaries designated by the Participant
shall become fixed as of the Participant's death so that, if a beneficiary
survives a Participant but dies before the receipt of all payments due such
beneficiary, such remaining payments will be payable to the representative of
such beneficiary's estate.
Participants and their beneficiaries will not have any transmissible
interest in the payments due under this Plan, nor any right to anticipate,
dispose of , pledge or encumber the same prior to actual receipt thereof, or
shall the same be subject to attachment, garnishment, or execution following
judgment or other legal process instituted by a Participant's creditors or any
such beneficiary; provided, however, that the balance of a Participant's
supplemental benefits payments shall at all times be subject to off-set for
debts owed by a Participant to the Company.
Article X
Withholding Taxes
The Company may withhold from any payment made under this Plan (and
transmit to the proper taxing authority) such amounts as it may be required to
withhold under any federal, state, or other law.
6
<PAGE> 7
Article XI
Effect on Rights and Other Benefit Programs
The provisions of this Plan do not give the Participant any rights to
continue to be retained by the Company. This Plan shall be considered a
supplement to any contract of employment, either oral or written, between a
Participant and the Company.
This Plan is in addition to, and not in lieu of, any benefit plan or
program in which the Participant may be eligible to participate by reason of
his or her association with the Company.
Article XII
Binding Effect of Supplemental Benefits
The rights and obligations created by this Plan shall be binding upon and
inure to the benefit of the parties hereto, the successors and assigns of the
Company, and the Participant's beneficiaries, personal representatives, and
heirs.
Article XIII
Arbitration and Costs
13.1 Right to Arbitration
Time is of the essence in the resolution of any and all disputes which
may arise under this Plan and the determination of whether any payments are due
hereunder or the amount or timing thereof. A Participant (or following his or
her death, his or her beneficiary) but not the Company, may, but need not,
submit any such dispute, disagreement or claim for payment thereunder to
arbitration provided herein. In the event that the Company has previously
commenced an action or proceeding in any court against a Participant or
surviving beneficiary, whether with respect to a dispute, disagreement or claim
for payment under this Plan or otherwise, but need not, apply to a court of
competent jurisdiction, within ninety (90) days following receipt of service of
a summons and complaint or the equivalent thereof, for an order discussing or
staying (pending the final completion of arbitration as provided in this
Article XIII) all or so much of such action proceeding as affects or relates to
a dispute, disagreement or claim for payment under this Plan or relieving the
Participant or surviving beneficiary of any obligation to file an affirmative
defense or counterclaim in such action or proceeding to the extent the same
affects or relates to a dispute, disagreement or claim for payment under this
Plan.
The Company hereby consents to the issuance of such an order, upon such
application, with respect to any aspect of the action, proceeding, defense or
counterclaim which the Participant or surviving beneficiary demonstrates to the
court's satisfaction may reasonably affect or relate to any dispute,
disagreement or claim for payment under this Plan. Any such order may be
conditioned upon the prompt initiation of arbitration by the Participant or
surviving beneficiary in accordance with this Article XIII.
7
<PAGE> 8
13.2 Initiation of Arbitration
A Participant or surviving beneficiary who intends to initiate arbitration
hereunder shall first deliver to the Company in writing a claim for payment
under the Plan setting forth in reasonable detail the basis for and calculation
of the claim or proposed resolution of any other dispute or disagreement that
may exist.
If the Company does not deliver to the Participant or surviving
beneficiary cash or a certified or bank cashier's check in the full amount of
the claim for payment, or does not deliver a written, unconditional acceptance
of the proposed resolution within ten (10) days following delivery of the claim
for payment or proposed resolution or upon entry of an order of a court as
provided in Section 13.1 hereof, the Participant or surviving beneficiary may
deliver to the Company a written list of three (3) proposed arbitrators each of
whom must be either (a) a member in good standing of the American Arbitration
Association residing in the State of California, or (b) a retired judge of the
California Supreme Court, the California Court of Appeals, The United States
District Court for the Central or Southern Districts of California or the
United States Court of Appeals for the Ninth Circuit, provided however, that
any such judge must then reside in the State of California. Within seven (7)
days following delivery of such list, the Company shall select one (1) of the
proposed arbitrators as the arbitrator for the dispute, disagreement or claim
for payment in question said shall, within said seven (7) day period, deliver
written notice of such selection to the Participant or surviving beneficiary.
If the Company fails to deliver such written notice within said period, the
Participant or surviving beneficiary shall select one (1) of the proposed
arbitrators, promptly deliver notice thereof to the Company, and such selection
shall be binding upon the Company.
13.3 Conduct of Arbitration
The arbitration proceeding shall commence within seven (7) days following
selection of the arbitrator, or as soon thereafter as possible, and shall
proceed with all due diligence. No continuance or postponement of the
arbitration shall be granted to the Company without the consent of the
Participant or surviving beneficiary. Absence from or the failure to
participate in any hearing or session of the arbitration by the Company shall
not prevent the issuance of an award. Without the consent of the Participant
or surviving beneficiary, no arbitration hearing or session shall be conducted
outside Orange County, California. The arbitration shall be conducted in
accordance with such rules and procedures as may be determined by the
arbitrator. The arbitrator may determine when sufficient evidence has been
submitted to permit the issuance of an award.
The arbitrator's award shall be issued in writing as expeditiously as
possible and in no event more than thirty (30) days following the arbitrator's
determination that sufficient evidence has been received. The arbitrator may,
if he or she deems it necessary to the issuance of an award, engage the service
of an accountant, actuary or other expert to advise and assist in the
arbitration. No decision by the Company or the Trustee in this regard shall be
entitled to any deference in such arbitration.
8
<PAGE> 9
13.4 Arbitration Award
The arbitrator may order the Company to take, or to refrain from taking,
any action and may make a monetary award to the Participant or surviving
beneficiary. The Company acknowledges that in the event it should breach the
provisions of this Plan, it will be extremely difficult, if not impossible, to
calculate the amount of consequential or extracontractual damages suffered by
a Participant or surviving beneficiary. Consequently, the Company agrees that
(a) if the arbitrator makes a monetary award of any amount to the Participant
or surviving beneficiary, the arbitrator shall also award the Participant or
surviving beneficiary and additional amount equal twenty-five percent (25%) of
the monetary award but in no event less than ten thousand dollars ($10,000),
and (b) if the arbitrator does not make a monetary award to the Participant or
surviving beneficiary but makes an affirmative finding the the Company has
breached the provisions of this Plan or orders the Company to take, or refrain
from taking, any action, the arbitrator shall award the Participant or
surviving beneficiary ten thousand dollars ($10,000). All amounts so awarded
shall constitute additional benefits under this plan. Any monetary award, and
any additional awards, shall bear interest at a rate determined by the
arbitrator, that any payment should have been made by the Company to the
Participant or surviving beneficiary.
The arbitrator shall order the losing party in the arbitration to pay for
the costs of the arbitration, including, without limitation, the arbitrator's
fee and expenses, and to reimburse the prevailing party for all reasonable
expenses incurred by him or her or it in connection with the arbitration (and
any action necessary to dismiss or stay a pending action or proceeding)
including, without limitation, the fees and expenses of counsel, accountants,
actuaries or other experts reasonably employed (but excluding, in the case of
the Company, the value of any time devoted to the arbitration by its
Participants); provided, however, that the Participant or surviving beneficiary
shall be deemed to be the prevailing party if the arbitrator (a) finds that the
Company has breached the provisions of this Plan or orders the Company to take,
or to refrain from taking, any action or (b) has made a monetary award of any
amount to the Participant or surviving beneficiary, and provided further,
however that in no event shall the losing party be required to reimburse the
prevailing party for its expenses in an amount in excess of the amount of
expenses incurred by the losing party (including, if the Company is the losing
party, the value of the time devoted to the arbitration by its Participants).
The arbitration award, the additional award, interest, the costs of the
arbitration and the reimbursement of the expenses of the prevailing party shall
be due and payable in cash or by certified or bank cashier's check five (5)
days following the issuance of the award.
13.5 Enforcement of the Award
The award of the arbitrator shall be final, binding and conclusive upon
the parties and shall not be subject to judicial review, except as set forth in
Sections 1286.2 and 1286.6 of the California Code of Civil Procedure or any
successor statute thereto. Any party may apply to a court of competent
jurisdiction for confirmation or enforcement of such award.
9
<PAGE> 10
13.6 No Amendment
Notwithstanding any other provision of this Plan, including, without
limitation, Article XIV hereof, this Article XIII may not be amended, modified,
canceled or terminated, whether or part of the termination of the Plan or
otherwise, as to any Participant without the prior written consent of such
Participant (or the consent of the surviving beneficiary of a deceased
Participant).
Article XIV
Amendment and Termination
The Board of Directors of the Company may terminate the Plan, or make
such changes in it and additions to it as the Board of Directors shall deem
advisable; provided, however, that no termination or amendment of the Plan may,
without the consent of the Participant terminate the Participant's benefits
under the Plan or materially and adversely affect the Participant's rights
under the Plan. In no event shall benefits payable under this Plan offset any
other benefits or compensation generally payable to Participants or to a
reasonably ascertainable class of Participants of which the Participant is a
member.
Article XV
Controlling Law
This Plan shall be construed and the legal relations between the parties
determined in accordance with the laws of the State of California to the extent
that such law is not preempted by federal law.
Article XVI
Effective Date of Plan
This Plan has been adopted by the Company in 1987 and the first year of
this Plan shall be the fiscal year ending December 31, 1987.
10
<PAGE> 11
IN WITNESS WHEREOF, this restatement of the Plan has been duly adopted
and reccommended to the Board of Directors, on behalf of, the Company, as of
December 1, 1994, by the duly authorized representatives of the Company whose
signatures appear below.
ROPAK CORPORATION
By: /s/ WILLIAM ROPER By: /s/ RONALD CAMERON
--------------------- --------------------
William H. Roper Ronald Cameron
Title: Chairman and CEO Title: Chief Financial Officer
By: /s/ GARY MONTGOMERY
---------------------
Gary Montgomery
Title: Director Human Resources and Quality Management
11
<PAGE> 12
SUPPLEMENTAL EMPLOYEE BENEFITS AGREEMENT
UNDER SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
Mr. William H. Roper
Effective December 1, 1994
ROPAK CORPORATION, a California corporation, (the "Company") hereby
grants to Mr. William H. Roper (the "Employee"), pursuant to the Supplemental
Employee Benefits Plan (the "Plan") of the Company and its subsidiaries, all of
the supplemental and severance payment benefits outlined below and provided for
Mr. Roper by the Company pursuant to the terms and conditions set forth in the
Plan and hereinafter:
1. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and provide the Employee with
the following retirement benefits pursuant to Article VI or
Article VII of the Plan:
<TABLE>
<S> <C> <C>
a. Pre-retirement death benefit under Article VII......... $25,000 per year;
b. Retirement benefit under Article VI.................... $25,000 per year.
</TABLE>
These pre-retirement and post-retirement benefits are
expressed on a yearly basis and shall be payable for ten (10)
years. Payment terms shall be governed by the terms of the
Plan.
2. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and, except as provided in
paragraph (B) of Article VIII, in the event of termination of
employment of the Employee for any reason other than death
prior to becoming vested in retirement benefits under Articles
V and VI, the Company shall pay to the Employee a one-time
specified severance payment pursuant to Article VIII of the
Plan as follows:
Severance Payment Schedule
--------------------------
<TABLE>
<CAPTION>
If termination
occurs on or before
December 31 of the year: Severance Payment
------------------------ -----------------
<S> <C>
</TABLE>
Any severance payment required hereunder shall be payable
within thirty (30) days after termination of employment.
<PAGE> 13
This Supplemental Employee Benefits Agreement supersedes all prior Supplemental
Employee Benefits Agreement covering Employee pursuant to the current or any
prior version of the Plan.
ROPAK CORPORATION
By: /s/ GARY MONTGOMERY
-------------------------
By: /s/ RONALD CAMERON
-------------------------
EMPLOYEE
/s/ WILLIAM ROPER
----------------------------
ATTEST:
/s/ RALPH R. KRAFT
-----------------------------
<PAGE> 14
ROPAK CORPORATION
SUPPLEMENTAL EMPLOYEE BENEFITS AGREEMENT
UNDER SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
Mr. C. Richard Roper
Effective December 1, 1994
ROPAK CORPORATION, a California corporation, (the "Company")
hereby grants to Mr. C. Richard Roper (the "Employee") , pursuant to the
Supplemental Employee Benefits Plan (the "Plan") of the Company and its
subsidiaries, all of the supplemental and severance payment benefits outlined
below and provided for Mr. Roper by the Company pursuant to the terms and
conditions set forth in the Plan and hereinafter:
1. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and provide the Employee with
the following retirement benefits pursuant to Article VI or
Article VII of the Plan:
<TABLE>
<S> <C> <C>
a. Pre-retirement death benefit under Article VII......... $25,000 per year;
b. Retirement benefit under Article VI.................... $25,000 per year.
</TABLE>
These pre-retirement and post-retirement benefits are
expressed on a yearly basis and shall be payable for ten (10)
years. Payment terms shall be governed by the terms of the
Plan.
2. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and, except as provided in
paragraph (B) of Article VIII, in the event of termination of
employment of the Employee for any reason other than death
prior to becoming vested in retirement benefits under Articles
V and VI, the Company shall pay to the Employee a one-time
specified severance payment pursuant to Article VIII of the
Plan as follows:
Severance Payment Schedule
--------------------------
<TABLE>
<CAPTION>
If termination
occurs on or before
December 31 of the year: Severance Payment
----------------------- -----------------
<S> <C>
</TABLE>
Any severance payment required hereunder shall be payable
within thirty (30) days after termination of employment.
<PAGE> 15
This Supplemental Employee Benefits Agreement supersedes all prior Supplemental
Employee Benefits Agreement covering Employee pursuant to the current or any
prior version of the Plan.
ROPAK CORPORATION
By: /s/ GARY MONTGOMERY
-------------------------
By: /s/ RONALD CAMERON
-------------------------
EMPLOYEE
/s/ C. RICHARD ROPER
------------------------------
ATTEST:
/s/ JUDY PANTON
-----------------------------
<PAGE> 16
ROPAK CORPORATION
SUPPLEMENTAL EMPLOYEE BENEFITS AGREEMENT
UNDER SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
Mr. JAMES R. DOBELL
Effective December 1, 1994
ROPAK CORPORATION, a California corporation, (the "Company") hereby
grants to Mr. James R. Dobell (the "Employee") , pursuant to the Supplemental
Employee Benefits Plan (the "Plan") of the Company and its subsidiaries, all of
the supplemental and severance payment benefits outlined below and provided for
Mr. Dobell by the Company pursuant to the terms and conditions set forth in the
Plan and hereinafter:
1. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and provide the Employee with
the following retirement benefits pursuant to Article VI or
Article VII of the Plan:
<TABLE>
<S> <C> <C>
a. Pre-retirement death benefit under Article VII......... $67,500 per year;
b. Retirement benefit under Article VI.................... $67,500 per year.
</TABLE>
These pre-retirement and post-retirement benefits are
expressed on a yearly basis and shall be payable for ten (10)
years. Payment terms shall be governed by the terms of the
Plan.
2. This Supplemental Employee Benefits grant shall be
effective as of the date set forth above and, except as
provided in paragraph (B) of Article VIII, in the event of
termination of employment of the Employee for any reason other
than death prior to becoming vested in retirement benefits
under Articles V and VI, the Company shall pay to the Employee
a one-time specified severance payment pursuant to Article
VIII of the Plan as follows:
Severance Payment Schedule
--------------------------
<TABLE>
<CAPTION>
If termination
occurs on or before
December 31 of the year: Severance Payment
------------------------ -----------------
<S> <C>
1995 $47,724
1996 51,541
1997 55,665
1998 60,118
</TABLE>
<PAGE> 17
<TABLE>
<S> <C>
1999 64,927
2000 70,122
2001 75,731
2002 81,790
2003 88,333
2004 95,400
2005 103,032
2006 111,274
2007 120,176
2008 129,790
2009 140,173
</TABLE>
Any severance payment required hereunder shall be payable
within thirty (30) days after termination of employment.
This Supplemental Employee Benefits Agreement supersedes all prior Supplemental
Employee Benefits Agreement covering Employee pursuant to the current or any
prior version of the Plan.
ROPAK CORPORATION
By: /s/ GARY MONTGOMERY
--------------------------
By: /s/ RONALD CAMERON
--------------------------
EMPLOYEE
/s/ JAMES R. DOBELL
------------------------------
ATTEST:
/s/ JUDY PANTON
-----------------------------
<PAGE> 18
ROPAK CORPORATION
SUPPLEMENTAL EMPLOYEE BENEFITS AGREEMENT
UNDER SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
Mr. James R. Connell
Effective December 1, 1994
ROPAK CORPORATION, a California corporation, (the "Company") hereby
grants to Mr. James R. Connell (the "Employee"), pursuant to the Supplemental
Employee Benefits Plan (the "Plan") of the Company and its subsidiaries, all of
the supplemental and severance payment benefits outlined below and provided for
Mr. Connell by the Company pursuant to the terms and conditions set forth in
the Plan and hereinafter:
1. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and provide the Employee with
the following retirement benefits pursuant to Article VI or
Article VII of the Plan:
<TABLE>
<S> <C> <C>
a. Pre-retirement death benefit under Article VII......... $25,600 per year;
b. Retirement benefit under Article VI.................... $25,600 per year.
</TABLE>
These pre-retirement and post-retirement benefits are
expressed on a yearly basis and shall be payable for ten (10)
years. Payment terms shall be governed by the terms of the
Plan.
2. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and, except as provided in
paragraph (B) of Article VIII, in the event of termination of
employment of the Employee for any reason other than death
prior to becoming vested in retirement benefits under Articles
V and VI, the Company shall pay to the Employee a one-time
specified severance payment pursuant to Article VIII of the
Plan as follows:
Severance Payment Schedule
--------------------------
<TABLE>
<CAPTION>
If termination
occurs on or before
December 31 of the year: Severance Payment
----------------------- ----------------
<S> <C>
1995 $ 46,115
1996 49,804
</TABLE>
<PAGE> 19
<TABLE>
<S> <C>
1997 53,789
1998 58,092
</TABLE>
Any severance payment required hereunder shall be payable
within thirty (30) days after termination of employment.
This Supplemental Employee Benefits Agreement supersedes all prior Supplemental
Employee Benefits Agreement covering Employee pursuant to the current or any
prior version of the Plan.
ROPAK CORPORATION
By: /s/ GARY MONTGOMERY
-------------------------
By: /s/ RONALD CAMERON
-------------------------
EMPLOYEE
/s/ JAMES R. CONNELL
-----------------------------
ATTEST:
/s/ JUDY PANTON
-----------------------------
<PAGE> 20
ROPAK CORPORATION
SUPPLEMENTAL EMPLOYEE BENEFITS AGREEMENT
UNDER SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
Mr. RONALD CAMERON
Effective December 1, 1994
ROPAK CORPORATION, a California corporation, (the "Company") hereby
grants to Mr. Ronald Cameron (the "Employee"), pursuant to the Supplemental
Employee Benefits Plan (the "Plan") of the Company and its subsidiaries, all of
the supplemental and severance payment benefits outlined below and provided for
Mr. Cameron by the Company pursuant to the terms and conditions set forth in
the Plan and hereinafter:
1. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and provide the Employee with
the following retirement benefits pursuant to Article VI or
Article VII of the Plan:
<TABLE>
<S> <C> <C>
a. Pre-retirement death benefit under Article VII......... $25,000 per year;
b. Retirement benefit under Article VI.................... $25,000 per year.
</TABLE>
These pre-retirement and post-retirement benefits are
expressed on a yearly basis and shall be payable for ten (10)
years. Payment terms shall be governed by the terms of the
Plan.
2. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and, except as provided in
paragraph (B) of Article VIII, in the event of termination of
employment of the Employee for any reason other than death
prior to becoming vested in retirement benefits under Articles
V and VI, the Company shall pay to the Employee a one-time
specified severance payment pursuant to Article VIII of the
Plan as follows:
Severance Payment Schedule
--------------------------
<TABLE>
<CAPTION>
If termination
occurs on or before
December 31 of the year: Severance Payment
------------------------ -----------------
<S> <C>
</TABLE>
<PAGE> 21
Any severance payment required hereunder shall be payable
within thirty (30) day after termination of employment.
This Supplemental Employee Benefits Agreement supersedes all prior
Supplemental Employee Benefits Agreement covering Employee pursuant to the
current or any prior version of the Plan.
ROPAK CORPORATION
By: /s/ GARY MONTGOMERY
-------------------------
By: /s/ RONALD CAMERON
-------------------------
EMPLOYEE
By: /s/ RONALD CAMERON
-------------------------
ATTEST:
/s/ JUDY PANTON
-----------------------------
<PAGE> 22
ROPAK CORPORATION
SUPPLEMENTAL EMPLOYEE BENEFITS AGREEMENT
UNDER SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
Mr. Robert E. Roper
Effective December 1, 1994
ROPAK CORPORATION, a California corporation, (the "Company")
hereby grants to Mr. Robert E. Roper (the "Employee") , pursuant to the
Supplemental Employee Benefits Plan (the "Plan") of the Company and its
subsidiaries, all of the supplemental and severance payment benefits outlined
below and provided for Mr. Roper by the Company pursuant to the terms and
conditions set forth in the Plan and hereinafter:
1. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and provide the Employee with
the following retirement benefits pursuant to Article VI or
Article VII of the Plan:
<TABLE>
<S> <C> <C>
a. Pre-retirement death benefit under Article VII......... $25,000 per year;
b. Retirement benefit under Article VI.................... $25,000 per year.
</TABLE>
These pre-retirement and post-retirement benefits are
expressed on a yearly basis and shall be payable for ten (10)
years. Payment terms shall be governed by the terms of the
Plan.
2. This Supplemental Employee Benefits grant shall be effective
as of the date set forth above and, except as provided in
paragraph (B) of Article VIII, in the event of termination of
employment of the Employee for any reason other than death
prior to becoming vested in retirement benefits under Articles
V and VI, the Company shall pay to the Employee a one-time
specified severance payment pursuant to Article VIII of the
Plan as follows:
Severance Payment Schedule
-------------------------
<TABLE>
<CAPTION>
If termination
occurs on or before
December 31 of the year: Severance Payment
----------------------- -----------------
<S> <C>
</TABLE>
Any severance payment required hereunder shall be payable
within thirty (30) days after termination of employment.
<PAGE> 23
This Supplemental Employee Benefits Agreement supersedes all prior
Supplemental Employee Benefits Agreement covering Employee pursuant to the
current or any prior version of the Plan.
ROPAK CORPORATION
By: /s/ GARY MONTGOMERY
-------------------------
By: /s/ RONALD CAMERON
-------------------------
EMPLOYEE
By: /s/ ROBERT E. ROPER
-------------------------
ATTEST:
/s/ ROBERT K. ROPER
-----------------------------
<PAGE> 1
EXHIBIT 10.51
<PAGE> 2
TRUST UNDER THE ROPAK CORPORATION
SUPPLEMENTAL EMPLOYEE BENEFITS PLAN
This Agreement made this 1st day of December, 1994 by and between
Ropak Corporation ("Company") and Wells Fargo Bank ("Trustee");
(a) WHEREAS, Company has adopted the nonqualified deferred
compensation Plan(s) attached hereto, in effect from time to time, as
Exhibit A.
(b) WHEREAS, Company has incurred or expects to incur liability
under the terms of such Plan(s) with respect to the individuals participating
in such Plan (s).
(c) WHEREAS, Company wishes to establish a trust (herein-after
called "Trust") and to contribute to the Trust assets that shall be held
therein, subject to the claims of Company's Insolvency, as herein defined,
until paid to Plan participants and their beneficiaries in such manner and at
such times as specified in the Plan(s);
(d) WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the status of the
Plan (s) as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
(e) WHEREAS, it is the intention of the Company to make
contributions to the Trust to provide itself with a source of funds to assist
it in the meeting of its liabilities under the Plan(s);
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be composed, held and disposed of as follows:
Section 1. Establishment Of Trust
(a) Company hereby deposits with Trustee in trust the assets
identified on Exhibit B, which shall become the principal of the Trust to be
held, administered and disposed of by Trustee as provided in the Trust
Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company
is the grantor, within the meaning of subpart E, part 1, subchapter J, chapter
1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan participants and their beneficiaries shall
have no preferred claim on, and any beneficial ownership interest in, any
assets of the Trust. Any
2
<PAGE> 3
rights created under the Plan(s) and this Trust Agreement shall be mere
unsecured contractual rights of Plan Participants and their beneficiaries
against the company. Any assets held by the Trust will be subject to the
claims of Company's general creditors under federal and state law in the event
of Insolvency, as defined under Section 3(a) herein.
(e) The Company shall irrevocably deposit in the Trust an
additional five hundred thousand dollars ($500,000.00).
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) The Trustee shall at all times maintain, as an exhibit to this
Agreement, the current official copy of the Plan, including the Supplemental
Employee Benefits Schedule. Attached hereto as Exhibit C is a schedule
("Payment Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her Beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided) for or available under
the Plan(s)), and the time of commencement for payment of such amounts. Except
as otherwise provided herein Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such Payment Schedule.
The Trustee shall make provision for the reporting and withholding of any
federal, state or local taxes that may be required to be withheld with respect
to the payment of benefits pursuant to the terms of the Plan(s) and shall pay
amounts withheld to the appropriate taxing authorities or detemine that such
amounts have been reported, withheld and paid by Company. In the event Company
determines that any participant's entitlement to benefits shall have been
forfeited or adversely modified in any manner from that set forth in the plan
and the Payment Schedule, the Company shall give the Trustee and the
participant written notice within thirty (30) days following the event
believed by the Company to have resulted in such forfeiture or change. The
participant thereupon may utilize the claim review procedures available under
the plan. If timely notice is not given of such forfeiture or change, unless
such notice is waived by the participant, such forfeiture or change shall not
become effective.
(b) Company may make payment of benefits directly to the Plan
participants or their beneficiaries as they become due under the terms of the
Plan(s). Company shall notify Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to participants or
their beneficiaries. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of benefits in accordance
with the terms of the Plan(s), Company shall make the balance of each such
payment as it falls due. Trustee shall notify Company where principal and
earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust
Beneficiary when Company is Insolvent
(a) Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Company is Insolvent. Company shall be
considered "Insolvent" for purposes of this Trust Agreement if (i) Company is
subject to a pending proceeding as a debtor under the United States Bankruptcy
Code.
3
<PAGE> 4
(b) At all times during the continuance of the Trust, as provided
in Section 1 (d) hereof, the principal and income of the Trust shall be subject
to the claims of general creditors of Company under federal and state law as
set forth below.
(1) The Board of Directors and the Chief Executive
Officer of Company shall have the duty to inform trustee in writing of
Company's Insolvency. If a person claiming to be a creditor of Company alleges
in writing to Trustee that Company has become Insolvent, Trustee shall
determine whether Company is Insolvent and, pending such determination, Trustee
shall discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Company's
Insolvency, or has received notice from Company or a person claiming to be a
creditor alleging that Company is Insolvent, Trustee shall have no duty to
inquire whether Company is Insolvent. Trustee may in all events rely on such
evidence concerning Company's solvency as may be furnished to Trustee and that
provides Trustee with a reasonable basis for making a determination concerning
Company's solvency.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights as general creditors of the Company with respect to
benefits due under the Plan(s) or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
Participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Company is not Insolvent (or
is no longer Insolvent).
(c) Provided that there are sufficient assets, if trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan(s) for the
period of such discontinuance, less the aggregate amount of any payments made
to Plan participants or their beneficiaries by Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
Section 4. Payments to Company
(a) Except as provided in Section 3 hereof, after the Trust has
become irrevocable, Company shall have no right or power to direct Trustee to
return to Company or to divert to others any of the Trust assets before all
payment of benefits have been made to Plan participants and their beneficiaries
pursuant to the terms of the Plan(s).
Section 5. Investment Authority
(a) The Trustee shall have full authority and responsibility to
invest and reinvest assets of the Plan excluding the life insurance policies
identified in Exhibit B. In no event may Trustee
4
<PAGE> 5
invest in securities (including stock or rights to acquire stock) or
obligations issued by Company, other than a de minimis amount held in common
investment vehicles in which Trustee invests. All rights associated with
assets of the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest witn Plan
participants.
Section 6. Disposition of Income.
(a) During the term of this Trust, all income received by the
Trust, net of expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
(a) Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing
between Company and Trustee. Within thirty (30) days following the close of
each calendar year and within thirty days (30) after the removal or resignation
of Trustee, Trustee shall deliver to Company 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
(accrued interest paid or receivable being shown separately), 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.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in 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
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by Company which is contemplated by, and
in conformity, with the terms of the Plan(s) or this Trust and is given in
writing by the Company. In the event of a dispute between Company and party,
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify Trustee against
Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. if Company does not pay such costs, expenses and liabilities in
a reasonably timely manner, Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be
counsel for Company generally) with respect to any of its duties or obligations
hereunder.
5
<PAGE> 6
(d) Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the
Trust, Trustee shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion of the policy
to a different form) other than to a successor Trustee, or to loan to any
person the proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Section 9. Compensation and Expenses of Trustee.
(a) Company shall pay all administrative and Trustee's fees and
expenses. If Company does not pay such costs, expenses and liabilities within
ninety (90) days, Trustee may obtain payment from the Trust.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any given time by written notice to
Company, which shall be effective sixty (60) days after receipt of such notice
unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company oh sixty (60) days notice or
upon shorter notice accepted by Trustee.
(c) Upon a change of control, as defined herein, Trustee may not
be removed by Company for twenty-four (24) full calendar months following the
month in which occurs such a Change in Control.
(d) If Trustee resigns or is removed within twenty-four (24)
months of a Change of Control, as defined herein, Trustee shall select a
successor Trustee in accordance with the provisions of section 11 (b) hereof
prior to the effective date of Trustee's resignation or removal.
(e) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within sixty (60) days
after receipt of notice of resignation, removal or transfer, unless the Company
extends the time limit.
(f) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with section 11 hereof, by the effective date or
resignation or removal under paragraph(s) (a) or (b) of this section. If no
such appointment has been made, Trustee may apply to a court of competent
6
<PAGE> 7
jurisdiction for appointment of a successor or for instructions. All expenses
of Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
Section 11. Appointment of Successor
(a) If Trustee resigns (or is removed) in accordance with Section
10(a) or (b) hereof, Company may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee, who
shall have all of the rights and powers of the former Trustee, including
ownership rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by Company or the successor
Trustee to evidence the transfer.
(b) If Trustee resigns or is removed pursuant to the provisions of
Section 10-(d) hereof and selects a successor Trustee, Trustee may appoint any
third party such as a bank trust department or other party that may be granted
corporate trustee powers under state law. The appointment of a successor
Trustee shall be effective when accepted in writing by the new Trustee. The
new Trustee shall have all the rights and powers of the former Trustee,
including, ownership rights in Trust assets. The former Trustee shall execute
any instrument necessary or reasonably requested by the successor Trustee to
evidence the transfer.
(c) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets, subject
to Sections 7 and 8 hereof The successor Trustee shall not be responsible for
and Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from
any other past event, or any condition existing at the time it becomes
successor Trustee.
Section 12. Amendment or Termination
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan(s) or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1 (b)
hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan(s). Upon termination of the Trust any
assets remaining in the Trust shall be returned to Company.
(c) Upon written approval of participants or beneficiaries
entitled to payment of benefits pursuant to the terms of the Plan(s), Company
may terminate this Trust prior to the time all benefit payments under the
Plan(s) have been made. All assets in the Trust at termination shall be
returned to the Company.
7
<PAGE> 8
(d) This Trust Agreement may not be amended by Company or its
successor with respect to any participant (without such participant's consent)
following a Change in Control, as defined herein.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or
in equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of California to the extent not governed
by federal law.
(d) For purposes of this Trust, Change of Control shall mean the
purchase or other acquisition by any person, entity or group of persons, within
the meaning of section 13(d) or 14(d) of the Securities Exchange Act of 1934
("Act"), or any comparable successor provisions, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Act) of 30 percent or
more of either the outstanding shares of common stock or the combined voting
power of Company's then outstanding voting securities entitled to vote
generally, or the approval by the stockholders of Company of a reorganization,
merger, or consolidation, in each case, with respect to which persons who were
stockholders of Company immediately prior to such reorganization, merger or
consolidation do not immediately thereafter, own more than 50 percent of the
combined voting power entitled to vote generally in the election of directors
of the reorganized, merged or consolidated Company's then outstanding
securities, or a liquidation or dissolution of Company or of the sale of all or
substantially all of Company's assets.
(e) The Trustee shall act with care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character with like aims. However, the Trustee shall
incur no liability to any person for any action taken pursuant to a direction,
request, or approval given by the Company which is contemplated by, and in
conformity with, the terms of the Plan or this Trust and is given in writing by
the Company. In the event of a dispute between the Company and a party, the
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
If the trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee against
the Trustee's costs, expenses, and liabilities (including without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If the Company does not pay such costs, expenses, and
liabilities in a reasonably timely manner, the Trustee may obtain payment from
the Trust.
8
<PAGE> 9
Section 14. Effective Date.
The effective date of this Trust Agreement shall be December 1, 1994
Dated: January 11, 1995 TRUSTEE
By: /s/ JOEL E. BRICK
------------------------
Joel E. Brick
Assistant Vice President
By: /s/ VICKI M. BANDEL
-------------------------
COMPANY
By: /s/ GARY MONTGOMERY
-------------------------
By: /s/ RONALD CAMERON
-------------------------
9
<PAGE> 1
EXHIBIT 10.52
<PAGE> 2
FAX NUMBER (714) 831-0400
March 15, 1995
Ropak Corporation
c/o William M. Curtis, Assistant Secretary
25241 Buckskin Drive
Laguna Hills, California 92653
Gentlemen:
This will refer to the tender offer to purchase all outstanding common
stock of Ropak Corporation at $11.00 per share in cash announced by LINPAC
Mouldings Ltd. ("LINPAC"). You and LINPAC are authorized to indicate in
materials mailed to stockholders of Ropak that I intend to accept LINPAC's
tender offer as to the following shares of common stock in Ropak held by the
undersigned:
Shares of Common Stock: 7,260 shares owned by Admac
Holdings Ltd.
Very truly yours,
/s/ DOUGLAS H. MacDONALD
DOUGLAS H. MacDONALD
EXHIBIT 10.52 Page 1
<PAGE> 1
FAX NUMBER (714) 831-0400
March 15, 1995
Ropak Corporation
c/o William M. Curtis, Assistant Secretary
25241 Buckskin Drive
Laguna Hills, California 92653
Gentlemen:
This will refer to the tender offer to purchase all outstanding common
stock of Ropak Corporation at $11.00 per share in cash announced by LINPAC
Mouldings Ltd. ("LINPAC"). You and LINPAC are authorized to indicate in
materials mailed to stockholders of Ropak that I intend to accept LINPAC's
tender offer as to the following securities of Ropak held by the undersigned:
Shares of Common Stock: 17,800 shares owned by me
22,002 shares owned by my spouse
Shares of Common Stock issuable upon exercise of stock options:
10,890 stock options granted 5/17/90
11,500 stock options granted 2/19/91
5,000 stock options granted 2/7/94
Very truly yours,
/S/ JAMES R. CONNELL
JAMES R. CONNELL
EXHIBIT 10.53 Page 1
<PAGE> 1
FAX NUMBER (714) 831-0400
March 15, 1995
Ropak Corporation
c/o William M. Curtis, Assistant Secretary
25241 Buckskin Drive
Laguna Hills, California 92653
Gentlemen:
This will refer to the tender offer to purchase all outstanding common
stock of Ropak Corporation at $11.00 per share in cash announced by LINPAC
Mouldings Ltd. ("LINPAC"). You and LINPAC are authorized to indicate in
materials mailed to stockholders of Ropak that I intend to accept LINPAC's
tender offer as to the following securities of Ropak held by the undersigned:
Shares of Common Stock: 12,840 shares owned by me
255 shares owned by my spouse
Shares of Common Stock issuable upon exercise of stock options:
10,890 stock options granted 5/17/90
27,500 stock options granted 2/19/91
Very truly yours,
/s/ JAMES R. DOBELL
JAMES R. DOBELL
EXHIBIT 10.54 Page 1
<PAGE> 1
FAX NUMBER (714) 831-0400
March 15, 1995
Ropak Corporation
c/o William M. Curtis, Assistant Secretary
25241 Buckskin Drive
Laguna Hills, California 92653
Gentlemen:
This will refer to the tender offer to purchase all outstanding common
stock of Ropak Corporation at $11.00 per share in cash announced by LINPAC
Mouldings Ltd. ("LINPAC"). You and LINPAC are authorized to indicate in
materials mailed to stockholders of Ropak that I intend to accept LINPAC's
tender offer as to the following securities of Ropak held by the undersigned:
Shares of Common Stock: Approx. 25,251 shares owned by me.
Shares of Common Stock issuable upon exercise of stock options:
10,890 stock options granted 5/17/90
17,500 stock options granted 2/19/91
2,500 stock options granted 2/7/94
Very truly yours,
/s/ RONALD W. CAMERON
RONALD W. CAMERON
EXHIBIT 10.55 Page 1
<PAGE> 1
EXHIBIT 10.56
<PAGE> 2
LICENSE AGREEMENT
THIS AGREEMENT, made this 31 day of December, 1979, by and between
WILLIAM H. ROPER, residing at 12 Rue Biarritz, Newport Beach, California 92660;
ROBERT E. ROPER, residing at 3802 Holden Circle, Los Alamitos, California
90720; CHARLES RICHARD ROPER, residing at 27062 La Paja Lane, Mission Viejo,
California 92675; ELVERE ROPER, residing at 600 South Bay Front, Balboa
Island, California 92662; and RALPH A. MILLER, residing at 600-1/2 South Bay
Front, Balboa Island, California 92662 (hereinafter collectively called
"Licensors") and ROPAK WEST, INC., a California corporation, having a principal
place of business at 14720 Alondra Boulevard, La Mirada, California 90638
(hereinafter called "Licensee").
W I T N E S S E T H:
WHEREAS, Licensors warrant and represent that they are co-owners of
inventions relating to plastic pails (the "Licensed Products"), as set forth in
United States Letters Patents No. 3,515,306, Container with Cover and Hidden
Cover Release, issued June 2, 1970; No. 3,516,571, Container and Cover
Therefor, issued June 23, 1970; No. 3,866,791, Container and Cover Including
Corner Pouring and Bail Nesting Features,
1.
<PAGE> 3
issued February 18, 1975; and No. Des. 232,152, Combined Container and Closure
Therefor, issued July 23, 1974, and Canadian Letters Patents No. 892,980,
Container and Cover Therefor, issued February 15, 1972; Design No. 37247,
Container and Cover Including Corner Pouring and Bail Nesting Features, issued
November 19, 1973; No. 958,661, Container and Cover Including Corner Pouring
and Bail Nesting Features, issued December 3, 1974 (the "U.S. Licensed Rights"
and "Canadian Licensed Rights"), and have the sole right to grant licenses
under said Licensed Rights; and
WHEREAS, Licensee desires to obtain an exclusive license, with the
right to sublicense for the U.S. Licensed Rights and a non-exclusive license,
with the right to a limited sublicense, under the Canadian Licensed Rights (as
hereinafter defined), in all fields and for all purposes; and
WHEREAS, Licensee, in addition to obtaining an exclusive license with
the right to sublicense desires to obtain the Licensed Know-How (as hereinafter
defined) relating to the Licensed Rights and Licensed Products, further subject
to the terms and conditions as hereinafter stated, and
2.
<PAGE> 4
WHEREAS, Licensors are the proprietors of the trademark ROPAK as
applied to Licensed Products (as hereinafter defined) which is the subject of
application for United States trademark registration, Serial No. 181,997, filed
August 14, 1978; and
WHEREAS, Licensee is desirous of obtaining the exclusive license to
utilize said trademark in conjunction with the manufacture and sale of Licensed
Products exclusively in the United States, with the right to sublicense same,
and Licensors are willing to grant said exclusive license;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS:
(a) "Licensed Rights" as used herein shall mean:
(1) only claims (a) pertaining to the Licensed Products
which have not been finally rejected by any final unappealable decision of the
Patent and Trademark Office or of a court of competent jurisdiction, and (b) in
all resulting original and reissue patents which have not expired or been held
invalid in any final unappealable decision of a court of competent
jurisdiction;
3.
<PAGE> 5
(2) any divisional, continuation, or continuation in-part
application for those claims set forth in Paragraph 1(a)(1)(a) and 1(a)(1)(b)
above.
(b) "Licensed Know-How" as used herein shall mean all technical
information in any form now or hereafter developed by the Licensors whether
patentable or unpatentable relating to the manufacturing, marketing or
financial operations involved in the utilization of the Licensed Products which
the Licensors possess or control and which information is desirable or
necessary for Licensee's full and complete enjoyment and exercise of the
exclusive licenses granted hereunder, including, without limitation, materials,
tooling, machinery and equipment, tooling, machinery and product design,
processes, formulae, cost information, blue prints, drawings, engineering and
manufacturing specifications relating to the Licensed Products and Licensed
Rights, but excluding that information which at the date hereof is (i)
contained or published in a patent or printed publication; (ii) enters the
public domain except as a result of a breach of this Agreement of a
confidential relationship; or (iii) obtained from a third person lawfully in
possession of such information and not subject to a contractual or confidential
relationship with respect thereto; or (iv) know-how which does not specifically
relate to Licensed Products.
4.
<PAGE> 6
(c) "Licensed Products" as used herein shall mean all types of
products which may embody, operate upon or be produced in accordance with the
Licensed Know-How or the Licensed Rights.
(d) "Gross Sales Price" shall mean all revenues from sales of
Licensed Products received by Licensee in an arms-length transaction for
commercial purposes (i.e., excluding production for models and testing),
whether a lease, sale or other transaction, less sales, excise and use taxes,
export or import duties and freight. For the purpose of computing "Gross Sales
Price" with respect to any commercial transaction between Licensee and any of
its subsidiaries or affiliated companies, "Gross Sales Price" shall be deemed
to be the average "Gross Sales Price" billed to independent customers for the
same product. In the event that Licensee shall grant sublicenses to third
parties to sell Licensed Products, sales or leases by sublicensees of Licensed
Products shall be deemed sales or leases by the Licensee.
(e) "Improvements" shall mean all products falling within the
claims of the Licensed Rights or the scope of the Licensed Know-How.
5.
<PAGE> 7
2. REPRESENTATIONS AND WARRANTIES OF THE LICENSORS:
The Licensors jointly and severally represent and warrant to Licensee
as follows:
(a) The Licensors have joint right, title and interest in and
power to license with respect to the Licensed Rights and Licensed Know-How, and
such rights and powers are shared only with each other.
(b) Litigation. Licensors are plaintiffs in a Civil Action No.
78 1520 RJK (GX) entitled William H. Roper, C. Richard Roper, Robert E. Roper,
Elvere Roper, Executrix of the Estate of Frank Roper, and Ralph A. Miller,
Plaintiffs, vs. Plant Industries, Inc., a corporation, Roper Plastics, Inc., a
corporation, John Doe I, John Doe II, John Doe III, and John Doe IV,
Defendants. Other than this action, there are not and have not been any
challenges for validity, known interference proceedings, actions, suits,
proceedings or investigations pending, or any actions, suits, proceedings or
investigations pending, or, to the knowledge of the Licensors, threatened
against or affecting any of said Licensors, at law or in equity, or admiralty
or before or by any federal, state, municipal or other governmental department,
commission, board, agency or instrumentality, domestic or foreign, which seek
to enjoin, prevent or nullify
6.
<PAGE> 8
this Agreement or the transactions contemplated hereby or which challenge or
bring into question the Licensors' right, title and interest in or power to
license under the Licensed Rights and Licensed Know-How; and the Licensors are
not subject to, or in default with respect to, any order, writ, injunction or
decree of any court or federal, state, municipal or other governmental
department, commission, board, agency or instrumentality, domestic or foreign
affecting or concerning their right, title and interest in or power to license
under such Licensed Rights or Licensed Know-How.
(c) Patents, Trademarks, etc. To the best knowledge of the
Licensors, the Licensed Rights and Licensed Know-How licensed exclusively to
the Licensee pursuant to this Agreement are such as to permit the Licensee to
sell, use, license, and otherwise deal in the Licensed Products without
hindrance from, liability to, or infringement of any rights of any other
person, and no additional rights, licenses or permits from any other person
will be required to be obtained by Licensee in order to use, manufacture and
sell the Licensed Products with respect to the Licensed Rights and Licensed
Know-How.
7.
<PAGE> 9
3. LICENSING AND DISCLOSURE OF LICENSED KNOW-HOW;
(a) The Licensors hereby jointly and severally grant to Licensee
AND any wholly owned subsidiary thereof, its successors and assigns, exclusive
licenses, with the right to grant sublicenses thereunder, to the Licensed
Rights and Licensed Know-How to manufacture, use and sell the Licensed Products
in the United States, its territories and possessions, and Puerto Rico, and a
non-exclusive license under the Canadian Licensed Rights with the right to
sublicense only Ropak, Ltd., a California limited partnership.
(b) Licensors agree to disclose to Licensee all Licensed Know-How
and trade secrets relating to the Licensed Rights and Licensed Products known
to or in the possession of Licensors.
(c) In the event of termination of this Agreement for any reason
specified in Paragraph 12 hereof, Licensee will immediately turn over to
Licensors all tangible embodiments of Licensed Know-How relating to Licensed
Products in the possession of Licensee.
4. LICENSE PAYMENTS AND ACCOUNTING:
(a) All cash payments to Licensors under this Agreement shall be made
in dollars (U.S.) delivered to Licensors.
8.
<PAGE> 10
(b) Licensee agrees to pay to Licensors an earned royalty of three
percent (3%) of the gross sales price of Licensed Products sold by Licensee or
its sublicensees.
(c) Licensee agrees to pay to Licensors during each and every year
of the term of this Agreement a minimum royalty of Thirty Thousand Dollars
($30,000.00), the earned royalty being applicable against said minimum royalty
and none of said minimum royalty being payable if the earned royalty paid
hereunder equals or exceeds the minimum. If the earned royalty does not equal
or exceed the minimum royalty in any yearly period, Licensee may pay the
difference between the earned and minimum royalties at the time of the last
quarter payment to maintain its rights hereunder.
(d) Licensee agrees to pay to Licensors all payments received by
it on that limited sublicense granted by Ropak, Inc. to Roper Plastics, Inc.
and Plant Industries, Inc.
(e) Licensee agrees to keep separate and accurate records showing
the number of Licensed Products sold by it, the amount of royalties received
from sublicensees, and the associated dollar value of gross sales in sufficient
detail to ascertain the royalties due Licensors. Licensors shall have the
right to inspect such records during reasonable business hours no more than
four times per year. In addition,
9.
<PAGE> 11
Licensors shall have the right to inspect the records of sublicensees of
Licensee, and Licensors shall insure that such right is preserved to Licensors.
In addition, if any other records of Licensee incorporate information
reflecting gross sales of Licensee and its sublicensees, Licensor shall have
the right to inspect the same.
(f) Licensee shall, within thirty (30) days after the close of
each calendar quarter, in respect of which reports are due, furnish to
Licensors quarterly written reports showing with accuracy and detail the
Licensed Products sold by Licensee and each of its sublicensees and the Gross
Sales Price thereof for the preceding full calendar quarter year. Sales by the
Licensee shall be separately stated from the amounts paid by each of the
sublicensees. Each quarterly report shall be accompanied by a payment for the
full amount of any payments payable for the quarter year covered by the report.
Licensee shall not be required to make any payments to Licensors with respect
to any Licensed Products sold by it until such time as Licensee receives
payment therefor from the vendee or lessee, and shall not be required to make
any payments to Licensors with respect to any Licensed Products sold by
sublicensees until such time as Licensee receives royalty payments therefor
10.
<PAGE> 12
from the sublicensee. Licensee undertakes to insure that sublicenses conform
with the terms of the sublicense agreement appended hereto as Exhibit A and to
take such legal action against its sublicensees as may be necessary to enforce
the terms of the sublicense agreement against sublicensees.
5. PATENTS AND APPLICATIONS:
(a) Licensors hereby assume full responsibility for the
preparation, filing and prosecution of all patent applications constituting a
part of the Licensed Rights.
(b) Licensors and Licensee, through their patent attorneys, agree
to keep each other's patent attorneys fully apprised of the status of all
pending U.S. patent applications.
6. IMPROVEMENTS BY LICENSEE AND LICENSORS:
(a) As to each Improvement of Licensed Rights which is hereafter
conceived, developed or acquired by Licensee during the term of this Agreement,
title thereto shall be assigned to Licensors, but during the term of this
Agreement, such Improvements shall be regarded as part of the Licensed Rights
hereunder. Upon termination of this Agreement for any cause, the Licensors
shall grant to Licensee a paid-up, royalty-free non-exclusive license for such
Improvements.
11.
<PAGE> 13
(b) Improvements made by Licensors shall remain the property of
Licensors, but shall be included in the scope of this Agreement at no
additional royalty.
7. LICENSED PATENTS, LITIGATIONS AND PROTECTION:
(a) Licensors shall have the sole and exclusive right to take
steps to prevent infringement of the Licensed Patents, including the right to
(1) institute and prosecute any and all suits to enjoin any and all infringers
of the Licensed Rights; (2) during the continuance of this Agreement, and at
their own expense, institute any other suit or suits which they may deem
necessary; (3) defend any suits against Licensors or Licensee for alleged
infringement or interferences; and (4) employ therefor their own counsel, and
pay for all services rendered by such counsel, and all costs and expenses
incidental thereto.
(b) The Licensee covenants and agrees to (1) give written notice
to Licensors of any infringements of the Licensed Rights which shall come to
its attention; (2) execute any and all papers, documents or other instruments
which may be found necessary or desirable to effect the exclusive rights and
licenses herein granted to Licensee; (3) execute any and all papers which may
be found necessary or desirable in any suit or suits brought under and pursuant
to this
12.
<PAGE> 14
Agreement; and (4) testify in any interference or other proceedings or
litigation, whenever requested to do so by Licensors.
(c) If Licensors shall fail to bring suit to prevent infringement
as aforesaid within ninety (90) days after written request by Licensee so to
do, Licensee may, at its own expense, bring such suit and shall retain for
itself all recovery therefrom; provided, however, that Licensors, at their own
expense, may be represented by their own counsel in such suit.
8. MARKING:
Licensee agrees to mark and require all sublicensees to mark all
Licensed Products manufactured or sold by it or them under this Agreement in
accordance with the applicable statutes of the United States related to the
marking of patented articles so far as the same are applicable following the
grant of Letters Patent, or filing of applications for Letters Patent.
9. INVALIDITY AND NON-USE OF PATENTS:
It is understood and agreed that if, in any suit or proceeding
involving any or all of the Licensed Rights, under and pursuant to which the
exclusive right and license
13.
<PAGE> 15
herein has been granted, charging infringement thereof, any of the claims of
the Licensed Rights should be declared to be invalid by any court or agency, or
be construed by any court or agency so as not to cover the inventions licensed
hereunder to such an extent that any remaining claims do not cover Licensed
Products, then and in such event, the royalty agreed to be paid hereunder shall
be reduced by one percent (1%) and the remaining two percent (2%) royalty shall
continue to be paid in consideration of the Know-How and trademark license
granted hereunder.
10. SPECIAL COVENANTS:
(a) Licensee agrees to exert every reasonable effort to
manufacture and sell Licensed Products or, in the alternative, have its
sublicensees manufacture and sell Licensed Products under the license herein
granted.
11. TRADEMARK LICENSE:
(a) Licensors hereby grant to Licensee the sole and exclusive
right in the United States to utilize the trademark ROPAK in conjunction with
the manufacture, use and sale of Licensed Products.
(b) Licensee agrees to maintain the same uniform standard of quality
in the Licensed Products which it
14.
<PAGE> 16
distributes under the trademark ROPAK as it supplies to Licensors in accordance
with Licensors' specifications for Licensed Products distributed by Licensors
under the trademark ROPAK. Licensors shall at all reasonable times have the
right to inspect the material utilized by Licensee in Licensed Products
distributed in accordance with the terms of the Agreement. If at any time
Licensee does not maintain a standard of quality in conformity with that
established hereinabove or shall use or display the trademark ROPAK in a
manner inconsistent with Licensors' customary use thereof or in such a manner
as to impair Licensors' customary use thereof or in such a manner as to impair
Licensors' ownership of or rights in said trademark, such conduct shall be
deemed a default hereunder.
12. NOTICE AND TERMINATION:
(a) It is covenanted and agreed that this Agreement shall continue
in effect until there no longer exists any Licensed Rights or Licensed
Know-How, then any and all rights which Licensee shall have or possess under
this Agreement shall be relinquished and surrendered by it to the Licensors,
except that Licensee shall have the right to sell all apparatus already
manufactured, embodying said inventions, upon which royalties will be paid as
aforesaid.
15.
<PAGE> 17
(b) In the event of the appointment of a receiver of all or
substantially all of the assets of Licensee, or a filing of a voluntary
petition of bankruptcy by the Licensee, or in the event the Licensee shall make
an assignment for the benefit of creditors, this Agreement may be terminated by
the Licensors.
The foregoing shall be without prejudice to any remedy of the
Licensors for the recovery, free of liens and claims of creditors, rights to
all Licensed Rights, technical and manufacturing data related thereto and any
monies then due them under this Agreement and without prejudice to any other
rights of the Licensors.
(c) Licensors mav terminate this Agreement if Licensee is in
default under any provision hereof and shall fail to remedy such default
within sixty (60) days after receiving written notice thereof.
(d) In the event of termination of this Agreement for any cause
whatsoever, Licensee agrees to surrender immediately to Licensors all Know-How
previously imparted to Licensee by Licensors, including, by way of
illustration, but not limitation, the following: all tooling, dies, fixtures,
drawings, documents, handbooks and anything whatsoever utilized in conjunction
with the manufacture, use and/or
16.
<PAGE> 18
sale of Licensed Products; Licensee also agrees to surrender to Licensors all
customer lists, publications, catalogs and any and all documents utilized in
facilitating the manufacture, distribution and sale of Licensed Products; and
Licensors agree to pay to Licensee the depreciated value of all of the tooling,
dies and fixtures as established by the accounting records of Licensee which
shall be available to Licensor to establish such depreciated value.
13. NOTICES:
Any notice required or permitted herein shall be in writing and shall,
unless otherwise required herein, be deemed given when delivered personally or
deposited in the certified or registered mail, postage prepaid and properly
addressed to the party to be notified at the address specified below:
a) Licensors:
c/o William H. Roper
12 Rue Biarritz
Newport Beach, California 92660
b) Licensee:
Ropak
c/o Ropak West
14720 Alondra
La Mirada, California 90638
or to such other addresses as the parties may from time to time advise the
other of in writing.
17.
<PAGE> 19
14. APPLICABLE LAW:
This Agreement, its validity, interpretation and performance shall be
governed by the laws of the State of California.
15. ATTORNEYS' FEES:
If either party shall initiate litigation because of an alleged
controversy arising as to performance, nonperformance, interpretation or any
other aspect of this Agreement, and shall not prevail in said litigation, said
party shall be compelled to pay the other party's attorneys' fees, costs and
expenses of said litigation. Conversely, if the complaining party shall
prevail, the losing party shall pay the other party's attorneys' fees, costs
and expenses of said litigation.
16. ASSIGNMENT:
The license provided under this Agreement shall not be assignable by
any party hereto, and shall inure to the benefit of the heirs, legatees,
successors and legal representatives of the Licensors.
18.
<PAGE> 20
17. MODIFICATION:
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and shall not be modified except by an
instrument in writing signed by duly authorized representatives of each party.
18. DISSOLUTION:
If, for any reason whatsoever, ROPAK WEST, INC. shall be dissolved and
this Agreement is in full force and effect, Licensors shall have the right to
immediately assume Licensee's contractual obligations with Licensee's
sublicensees, and Licensors shall enter such negotiations with Licensee to
attempt to fairly reimburse Licensee for any costs and expenditures arising out
of the substitution of Licensor for Licensee.
19. ARTICLE HEADINGS AND SEVERABILITY:
(a) Article headings shall serve only as a designation of the
general content of the paragraphs appearing therebelow and shall not be
interpreted in a limiting connotation.
(b) The invalidity of any provision of this Agreement shall not
affect enforceability of any of the provisions thereof.
19.
<PAGE> 21
20. COUNTERPARTS:
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands on the day
and year first above given.
LICENSORS:
/s/ WILLIAM H. ROPER
--------------------------
William H. Roper
/s/ ROBERT E. ROPER
--------------------------
Robert E. Roper
/s/ CHARLES RICHARD ROPER
--------------------------
Charles Richard Roper
/s/ ELVERE ROPER
--------------------------
Elvere Roper
20.
<PAGE> 22
/s/ RALPH A. MILLER
-------------------------
Ralph A. Miller
LICENSEE:
ROPAK WEST, INC.
Attest:
By /s/ C. RICHARD ROPER
------------------------------
C. Richard Roper
/s/ JUDY LONG
-----------------------------
By /s/ ROBERT E. ROPER
------------------------------
Robert E. Roper
21.
<PAGE> 1
EXHIBIT 10.57
<PAGE> 2
AMENDMENT TO LICENSE AGREEMENT
THIS AMENDMENT AGREEMENT of that certain License Agreement dated
December 31, 1979, made this 1st day of November, 1985, by and between WILLIAM
H. ROPER, residing at 12 Rue Biarritz, Newport Beach, California 92660; ROBERT
E. ROPER, residing at 3802 Holden Circle, Los Alamitos, California 90720;
CHARLES RICHARD ROPER, residing at 1383 North Mustang Avenue, Orange,
California 92669; ELVERE ROPER, residing at 600 South Bay Front, Balboa Island,
California 92662; and RALPH A. MILLER, residing at 600-1/2 South Bay Front,
Balboa Island, California 92662 (hereinafter collectively called "Assignors")
and ROPAK CORPORATION, a California corporation, having a principal place of
business at 660 South State College Boulevard, Fullerton, California 92631
(hereinafter called "Assignee").
W I T N E S S E T H:
WHEREAS, Assignors warrant and represent that they are co-owners of
inventions relating to plastic containers as set forth in United States Letters
Patent No. 3,515,306, CONTAINER WITH COVER AND HIDDEN COVER RELEASE, issued
June 2, 1970; No. 3,516,571, CONTAINER AND COVER THEREFOR, issued June 23,
1970; No. 3,866,791, CONTAINER AND COVER INCLUDING
1
<PAGE> 3
CORNER POURING AND BAIL NESTING FEATURES, issued February 18, 1975; and No.
Des. 232,152, COMBINED CONTAINER AND CLOSURE THEREFOR, issued July 23, 1974,
and Canadian Letters Patent No. 892,980, CONTAINER AND COVER THEREFOR, issued
February 15, 1972; and No. 958,661, CONTAINER AND COVER INCLUDING CORNER
POURING AND BAIL NESTING FEATURES, issued December 3, 1974, and have the sole
right to assign said Letters Patent and said inventions; and
WHEREAS, Assignee desires to obtain an assignment of the entire right
and title in and to the aforesaid United States and Canadian Letters Patent and
in and to all of the inventions disclosed in said Letters Patent; and
WHEREAS, Assignee, in addition to the assignment of the aforesaid
United States and Canadian Letters Patent, desires an assignment by Assignors
of the Know-How defined in the Agreement of December 31, 1979 relating to the
assigned patents and the inventions disclosed therein; and
WHEREAS, Assignors are the proprietors of the trademark ROPAK and
Assignee is desirous of obtaining the assignment of said trademark and the
United States and Canadian registrations therefor;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto agree as follows:
2
<PAGE> 4
1. AMENDMENT OF DECEMBER 31, 1979 AGREEMENT:
1.01 Assignors and Assignee hereby agree that all of the licensing
provisions of the Agreement of December 31, 1979 are terminated and that only
those provisions of said December 31, 1979 Agreement specifically incorporated
herein by reference or quotation shall continue in full force and effect.
2. PATENT ASSIGNMENTS:
2.01 Assignors hereby assign all of the United States and Canadian
Letters Patent enumerated hereinabove to Assignee and, in accordance with said
assignments, have executed the assignment documents appended hereto as Exhibits
1, 2 and 3.
2.02 Assignors agree to record the assignments appended hereto as
Exhibits 1, 2 and 3 in the United States Patent and Trademark Office and in the
Canadian Patent Office and to apprise Assignee of the recording data pertinent
thereto and to provide Assignee with copies of said assignments as recorded in
the United States Patent and Trademark Office and Canadian Patent Office all on
behalf of and at the expense of Assignee.
3. KNOW-HOW ASSIGNMENT:
3.01 Assignors hereby assign all of the previously licensed
Know-How enumerated in Paragraph 1(b) of the
3
<PAGE> 5
December 31, 1979 Agreement to Assignee and agree to provide to Assignee all of
said Know-How, including, without limitation, proprietary information relating
to materials, tooling, machinery and equipment, machinery and product design,
processes, formulae, cost information, blueprints, drawings, and engineering
and manufacturing specifications relating to the assigned United States and
Canadian Letters Patent and presently utilized by Assignee in the manufacture
of the products and inventions disclosed in said United States and Canadian
Letters Patent.
3.02 Assignors hereby relinquish all right, title and interest into
said Know-How as defined in Paragraph 3.01 hereof and agree to assist Assignee
in the continuation of the application of said Know-How by Assignee.
3.03 Assignors hereby covenant and agree that, during the course of
their employment by Assignee, all Know-How regarding any of the products,
processes and other Know-How specifically referred to in Paragraph 3.01 of
this article and developed by Assignors, or any one of them, subsequently to
the date of this Agreement, shall be disclosed to Assignee, and Assignors agree
to assist Assignee in the utilization and application of said Know-How
developed subsequently to the date of this Agreement to the relevant
4
<PAGE> 6
products of Assignee in existence at the time of the development of said
subsequent Know-How.
4. TRADEMARK AND TRADEMARK REGISTRATION ASSIGNMENTS:
4.01 Assignors hereby assign to Assignee the trademark ROPAK and
the goodwill of Assignors' appurtenant thereto, together with the United States
and Canadian registrations therefor, all as more particularly evidenced by
Exhibits 4 and 5 appended hereto.
4.02 Assignors agree to record said trademark assignments in the
United States Patent and Trademark Office and the Canadian Trade Marks Office
on behalf of and at the expense of Assignee and to notify Assignee of the
proper recordation of said assignments and to provide Assignee with copies of
said recorded assignments and documents pertaining to the recordation thereof.
5. ASSIGNMENT PAYMENTS AND ACCOUNTING:
5.01 All cash payments to Assignors under this Agreement shall be
made in dollars (U.S.) delivered to Assignors.
5.02 Assignee agrees to pay to Assignors a payment of three percent
(3%) of the gross sales price, as defined in Paragraph 1(d) of the December 31,
1979 License Agreement, of containers manufactured in accordance with said
assigned
5
<PAGE> 7
United States and Canadian Letters Patent and/or said assigned Know-How.
5.03 The maximum payment paid in accordance with Paragraph 5.02 of
this article shall not exceed the payment made to Assignors by Assignee for the
calendar year 1985, adjusted annually. The maximum payment payable shall be
adjusted annually by the current Consumer Price Index for the year of payment,
and the total payment paid in the previous year shall be subject to the
Consumer Price Index adjustment for the current year, e.g., 1987 maximum equals
1986 maximum plus (1986 maximum times 1987 CPI).
5.04 No sublicense or minimum payment shall be payable to Assignors
by Assignee.
5.05 The payments by Assignee to Assignors provided for in
Paragraph 5.02 of this article shall terminate as of December 31, 1995.
5.06 Assignee agrees to keep separate and accurate records showing
the number of containers sold by it and the associated dollar value of gross
sales in sufficient detail to ascertain the payments due Assignors. Assignors
shall have the right to inspect such records during reasonable business hours
no more than four times a year. In addition, if any other records of Assignee
incorporate information
6
<PAGE> 8
reflecting gross sales of Assignee, Assignors shall have the right to inspect
the same.
5.07 Assignee shall, within thirty (30) days after the close of
each calendar quarter, in respect of which reports are due, furnish to
Assignors quarterly written reports showing with accuracy and detail the
containers sold by Assignee and the gross sales price thereof for the preceding
full calendar quarter year. Each quarterly report shall be accompanied by a
payment for the full amount of any payments payable for the quarter year
covered by the report.
6. PATENTS AND PATENT APPLICATIONS:
6.01 Assignee hereby assumes full responsibility for the
preparation, filing, prosecution and maintenance of all patents and patent
applications assigned to Assignee by Assignors hereunder.
6.02 Assignee agrees to assume full responsibility for the
preparation, filing and prosecution of all patent applications on improvements
made by Assignors in accordance with the provisions of Paragraph 1(e) of the
Agreement of December 31, 1979.
7. IMPROVEMENTS BY ASSIGNORS:
7.01 As to each improvement of Assignors which is hereafter
conceived, developed or acquired by Assignors during the term of this
Agreement, or during the employment of
7
<PAGE> 9
Assignors by Assignee, title thereto shall be assigned to Assignee, but no
additional payment shall be paid upon said improvements other than the payment
provided for in Paragraph 5.02 hereof, and this Agreement shall terminate
together with the Agreement of December 31, 1979 in accordance with the
provisions of Paragraph 5.05 hereof.
8. TRADEMARKS:
8.01 Assignee agrees to mark all containers manufactured and sold
by it under this Agreement in accordance with the applicable statutes of the
United States and/or Canada relating to trademark notices and to maintain the
trademark registrations assigned by Assignors in accordance with this Agreement
in full force and effect.
9. LITIGATION:
9.01 Assignee shall have the sole and exclusive right to take steps
to prevent infringment of the assigned patents, including the right to (1)
institute and prosecute any and all suits to enjoin any and all infringers of
said patents; (2) during the continuance of this Agreement, and at its own
expense, institute any other suit or suits which it may deem necessary; (3)
defend any suits against Assignors or Assignee for alleged infringement; and
(4) employ therefor its own counsel, and pay for all services rendered by such
counsel, and all costs and expenses incidental thereto.
8
<PAGE> 10
9.02 Assignee agrees to hold Assignors harmless from attorneys'
fees, costs and judgments arising out of any action arising out of this
Amendment Agreement brought against Assignors by stockholders of Assignee.
10. SPECIAL COVENANTS:
10.01 Assignee agrees to exert every reasonable effort to
manufacture and sell containers manufactured in accordance with the assigned
patents and/or assigned Know-How.
11. NOTICE AND TERMINATION:
11.01 This Agreement shall terminate on December 31, 1995, but all
payments for the calendar year 1995 shall be payable despite the termination of
the Agreement on said termination date.
12. NOTICES:
12.01 Any notice required or permitted herein shall be in writing
and shall, unless otherwise required herein, be deemed given when delivered
personally or deposited in the certified or registered mail, postage prepaid
and properly addressed to the party to be notified at the address specified
below:
Assignors:
c/o William H. Roper
12 Rue Biarritz
Newport Beach, California 92660
Assignee:
Ropak Corporation
660 South State College Boulevard
Fullerton, California 92631
9
<PAGE> 11
or to such other addresses as the parties may from time to time advise the
other of in writing.
13. APPLICABLE LAW:
13.01 This Agreement, its validity, interpretation and performance
shall be governed by the laws of the State of California.
14. ATTORNEYS' FEES:
14.01 If either party shall initiate litigation because of an
alleged controversy arising as to performance, nonperformance, interpretation
or any other aspect of this Agreement, and shall not prevail in said
litigation, said party shall be compelled to pay the other party's attorneys'
fees, costs and expenses of said litigation. Conversely, if the complaining
party shall prevail, the losing party shall pay the other party's attorneys'
fees, costs and expenses of said litigation.
15. ASSIGNMENT:
15.01 This Agreement shall not be assignable by any party hereto,
but shall inure to the benefit of the heirs, legatees, successor and legal
representatives of the Assignors and Assignee.
16. ARTICLE HEADINGS AND SEVERABILITY:
16.01 Article headings shall serve only as a designation of the
general content of the paragraphs appearing
10
<PAGE> 12
therebelow and shall not be interpreted in a limiting connotation.
16.02 The invalidity of any one of the the provisions of this
Agreement shall not affect enforceability of any other of the provisions
thereof.
16.03 This Agreement is an amendment of the Agreement of December
31, 1979 and all provisions of said Agreement of December 31, 1979 inconsistent
with the terms of this Agreement shall be considered as modified, cancelled or
amended by the terms of this Amendment Agreement.
17. COUNTERPARTS:
17.01 This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. WARRANTY:
18.01 Assignors represent and warrant that they are the sole and
exclusive owners of the patents assigned under Article 2 hereof, Patent
Assignments; the Know-How assigned under Article 3 hereof, Know-How Assignment;
and the trademark and trademark registrations assigned under Article 4 hereof,
Trademark and Trademark Registration Assignments.
11
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have set their hands on the day
and year first above given.
ASSIGNORS:
/s/ WILLIAM H. ROPER
-------------------------------
William H. Roper
/s/ ROBERT E. ROPER
-------------------------------
Robert E. Roper
/s/ CHARLES RICHARD ROPER
-------------------------------
Charles Richard Roper
/s/ ELVERE ROPER
-------------------------------
Elvere Roper
/s/ RALPH A. MILLER
-------------------------------
Ralph A. Miller
by Ralph A. Miller II
Attorney in fact
ASSIGNEE:
ROPAK CORPORATION
Attest: By /s/ C. RICHARD ROPER
----------------------------
C. Richard Roper
/s/ NANCY SHREEVE
-----------------------
Nancy Shreeve By /s/ ROBERT E. ROPER
----------------------------
Robert E. Roper
12
<PAGE> 1
EXHIBIT 10.58
<PAGE> 2
STANDARD INDUSTRIAL LEASE
1. PARTIES. This Lease, dated, for reference purposes only, January 25,
1984, is made by and between SIX SIXTY LTD., a California limited partnerhip
(herein called "Lessor") and ROPAK WEST INC., a California corporation (herein
called "Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from
Lessor for the term, at the rental, and upon all of the conditions set forth
herein, that certain real property situated in the County of Orange, State of
California, commonly known as 660 South State College Blvd., Fullerton, CA
92631 consisting of 7,507 sq. ft. and described as ____________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Said real property including the land and all improvements thereon, is herein
called "the Premises".
3. TERM.
3.1 TERM. The term of this Lease shall be for five years
commencing on May 1, 1984 and ending on April 30, 1989 unless sooner terminated
pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date,
if for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date, Lessor shall not be subject to any liability therefor, nor shall
such failure affect the validity of this Lease or the obligations of Lessee
hereunder or extend the term hereof, but in such case Lessee shall not be
obligated to pay rent until possession of the Premises is tendered to
Lessee; provided, however, that if Lessor shall not have delivered possession of
the Premises within sixty (60) days from said commencement date, Lessee may, at
Lessee's option, by notice in writing to Lessor within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Lessee shall pay
rent for such period at the initial monthly rates set forth below.
4. RENT; NET LEASE.
4.1 RENT. Lessee shall pay to Lessor as rent for the Premises Two
Hundred Thirty-Four Thousand dollars ($234,000.00), payable in equal monthly
installments of $3,900.00, in advance, on the first day of each month of the
term hereof. Lessee shall pay Lessor upon the execution hereof $3,900.00 as
rent for May 1, 1984 through May 31, 1984. Rent for any period during the term
hereof which is for less than one month shall be a pro rata portion of the
monthly installment. Rent shall be payable in lawful money of the United States
to Lessor at the address stated herein or to such other persons or at such
other places as Lessor may designate in writing.
4.2 ADDITIONAL RENT. This Lease is what is commonly called a "net
lease", it being understood that Lessor shall receive the rent set forth in
Paragraph 4.1 free and clear of any and all other impositions, taxes, liens,
charges or expenses of any nature whatsoever in connection with the ownership
and operation of the Premises. In addition to the rent reserved by Paragraph
4.1, Lessee shall pay to the parties respectively entitled thereto all
impositions, insurance premiums, operating charges, maintenance charges,
construction costs, and any other charges, costs and expenses which arise or
may be contemplated under any provisions of this Lease during the term hereof.
All of such charges, costs and expenses shall constitute additional rent, and
upon the failure of Lessee to pay any of such costs, charges or expenses,
Lessor shall have the same rights and remedies as otherwise provided in this
Lease for the failure of Lessee to pay rent. It is the intention of the parties
hereto that this Lease shall not be terminable for any reason by the Lessee,
and that Lessee shall in no event be entitled to any abatement of or reduction
in rent payable hereunder, except as herein expressly provided. Any present or
future law to the contrary shall not alter this agreement of the parties.
5. [DELETED]
6. USE.
6.1 USE. The Premises shall be used and occupied only for mold
manufacturing operation and administrative offices.
6.2 COMPLIANCE WITH LAW. Lessee shall, at Lessee's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term of any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or permit
the use of the Premises in any manner that will tend to create waste or a
nuisance or, if there shall be more than one tenant of the building containing
the Premises, which shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. Lessee hereby accepts the Premises in
their condition existing as of the date of the execution hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Lessee acknowledges that neither Lessor nor Lessor's agent has
made any representation or warranty as to the suitability of the Premises for
the conduct of Lessee's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. Lessee shall during the term of this
Lease keep in good order, condition and repair, the Premises and every part
thereof, structural or non-structural, and all adjacent sidewalks, landscaping,
driveways, parking lots, fences and signs located in the areas which are
adjacent to and included with the Premises. Lessor shall incur no expense nor
have any obligation of any kind whatsoever in connection with maintenance of
the Premises, and Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Premises in good order, condition and repair.
7.2 SURRENDER. On the last day of the term hereof, or on any
sooner termination, Lessee shall surrender the Premises to Lessor in the same
condition as when received, broom clean, ordinary wear and tear excepted.
Lessee shall repair any damage to the Premises occasioned by the removal of
Lessee's trade fixtures, furnishings and equipment pursuant to Paragraph
7.4(c), which repair shall include the patching and filling of holes and repair
of structural damage.
7.3 LESSOR'S RIGHTS. If Lessee fails to perform Lessee's
obligations under this Paragraph 7, Lessor may at its option (but shall not be
required to) enter upon the Premises, after ten (10) days' prior written
notice to Lessee, and put the same in good order, condition and repair, and the
cost thereof together with interest thereon at the rate of 10% per annum shall
become due and payable as additional rental to Lessor together with Lessee's
next rental installment.
<PAGE> 3
7.4 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent, make any
alterations, improvements, additions, or utility installations in, on or about
the Premises, except for non-structural alterations not exceeding $1,000 in
cost. As used in this Paragraph 7.4, the term "utility installations" shall
include bus ducting, power panels, fluorescent fixtures, space heaters,
conduits and wiring. As a condition to giving such consent, Lessor may require
that Lessee agree to remove any such alterations, improvements, additions or
utility installations at the expiration of the term, and to restore the
Premises to their prior condition. As a further condition to giving such
consent, Lessor may require Lessee to provide Lessor, at Lessee's sole cost and
expense, a lien and completion bond in an amount equal to one and one-half
times the estimated cost of such improvements, to insure Lessor against any
liability for mechanics' and materialmen's liens and to insure completion of
the work.
(b) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of
any work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law.
(c) Unless Lessor requires their removal, as set forth in Paragraph
7.4(a), all alterations, improvements, additions and utility installations
(whether or not such utility installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall become the property of Lessor
and remain upon and be surrendered with the Premises at the expiration of the
term. Notwithstanding the provisions of this Paragraph 7.4(c), Lessee's
machinery and equipment, other than that which is affixed to the Premises so
that it cannot be removed without material damage to the Premises, shall remain
the property of Lessee and may be removed by Lessee subject to the provisions
of Paragraph 7.2.
8. INSURANCE; INDEMNITY.
8.1 INSURING PARTY. As used in this Paragraph 8, the term "insuring
party" shall mean the party who has the obligation to obtain the insurance
required hereunder. The insuring party in this case shall be designated
following the signatures of the parties below. Whether the insuring party is
the Lessor or the Lessee, Lessee shall, as additional rent for the Premises,
pay the cost of all insurance required hereunder. If Lessor is the insuring
party Lessee shall, within ten (10) days following demand by Lessor, reimburse
Lessor for the cost of the insurance so obtained.
8.2 LIABILITY INSURANCE. The insuring party shall obtain and keep in
force during the term of this Lease a policy of comprehensive public liability
insurance insuring Lessor and Lessee against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in an amount of not less than
$300,000 for injury to or death of one person in any one accident or occurrence
and in an amount of not less than $600,000 for injury to or death of more than
one person in any one accident or occurrence. Such insurance shall further
insure Lessor and Lessee against liability for property damage of at least
$50,000. The limits of said insurance shall not, however, limit the liability
of Lessee hereunder. In the event that the Premises constitute a part of a
larger property said insurance shall have a Lessor's Protective Liability
endorsement attached thereto. If the insuring party shall fail to procure and
maintain said insurance the other party may, but shall not be required to,
procure and maintain the same, but at the expense of Lessee.
8.3 PROPERTY INSURANCE. The insuring party shall obtain and keep in
force during the term of this Lease a policy or policies of insurance covering
loss or damage to the Premises, in the amount of the full replacement value
thereof, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk) and sprinkler leakage. Said insurance shall
provide for payment for loss thereunder to Lessor or to the holder of a first
mortgage or deed of trust on the Premises. If the insuring party shall fail to
procure and maintain said insurance the other party may, but shall not be
required to, procure and maintain the same, but at the expense of Lessee.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in
companies rated AAA or better in "Best's Insurance Guide". The insuring party
shall deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Lessor. No such policy shall be cancellable or
subject to reduction of coverage or other modification except after 10 days
prior written notice to Lessor. If Lessee is the insuring party, Lessee shall,
within 10 days prior to the expiration of such policies, furnish Lessor with
renewals or "binders" thereof, or Lessor may order such insurance and charge
the cost thereof to Lessee, which amount shall be payable by Lessee upon
demand. Lessee shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in Paragraph 8.3. If Lessee does
or permits to be done anything which shall increase the cost of the insurance
policies referred to in Paragraph 8.2, then Lessee shall forthwith upon
Lessor's demand reimburse Lessor for any additional premiums attributable to
any act or omission or operation of Lessee causing such increase in the cost of
insurance. If Lessor is the insuring party, and if the insurance policies
maintained hereunder cover other improvements in addition to the Premises,
Lessor shall deliver to Lessee a written statement setting forth the amount of
any such insurance cost increase and showing in reasonable detail the manner in
which it has been computed.
8.5 WAIVER OF SUBROGATION. Lessee and Lessor each hereby waive any and
all rights of recovery against the other, or against the officers, employees,
agents and representatives of the other, for loss of or damage to such waiving
party or its property or the property of others under its control to the extent
that such loss or damage is insured against under any insurance policy in force
at the time of such loss or damage. The insuring party shall, upon obtaining
the policies of insurance required hereunder, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
8.6 INDEMNITY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises, or elsewhere and
shall further indemnify and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any obligation
on Lessee's part to be performed under the terms of this Lease, or arising from
any negligence of the Lessee, or any of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Lessor by reason of any such claim, Lessee upon notice from Lessor
shall defend the same at Lessee's expense by counsel satisfactory to Lessor.
Lessee, as a material part of the consideration to Lessor, hereby assumes all
risk of damage to property or injury to persons, in, upon or about the Premises
arising from any cause and Lessee hereby waives all claims in respect thereof
against Lessor.
8.7 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or
about the Premises, nor shall Lessor be liable for injury to the person of
Lessee, Lessee's employees, agents or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether said damage or injury results from conditions
arising upon the Premises or upon other portions of the building of which the
Premises are a part, or from other sources or places, and regardless of whether
the cause of such damage or injury or the means of repairing the same is
inaccessible to Lessee. Lessor shall not be liable for any damages arising from
any act or neglect of any other tenant, if any, of the building in which the
Premises are located.
9. DAMAGE OR DESTRUCTION; OBLIGATION TO REBUILD. In the event the
improvements on the Premises are damaged or destroyed, partially or totally,
from any cause whatsoever, whether or not such damage or destruction is covered
by any insurance required to be maintained under Paragraph 8, then Lessee shall
repair, restore, and rebuild the Premises to their condition existing
immediately prior to such damage or destruction and this Lease shall continue
in full force and effect. Such repair, restoration and rebuilding (all of which
are herein called the "repair") shall be commenced within a reasonable time
after such damage or destruction and shall be diligently prosecuted to
completion. There shall be no abatement of rent or of any other obligation of
Lessee hereunder by reason of such damage or destruction. The proceeds of any
insurance maintained under Paragraph 8.3 shall be made available to Lessee for
payment of the cost and expense of the repair; provided, however, that such
proceeds may be made available to Lessee subject to reasonable conditions
including, but not limited to, architect's certification of costs and retention
of a percentage of such proceeds pending final notice of completion. In the
event that such proceeds are not made available to Lessee within ninety (90)
days after such damage or destruction, Lessee shall have the option for 30
days, commencing on the expiration of such 90-day period, of cancelling this
Lease. If Lessee shall exercise such option, Lessee shall have no further
obligation hereunder and shall have no further claim against Lessor; provided,
however, that Lessor shall return to Lessee so much of Lessee's security
deposit as has not theretofore been applied by Lessor. Lessee shall exercise
such option by written notice to Lessor within said 30-day period. Lessor may
require that Lessee provide, at Lessee's sole cost and expense, a lien and
completion bond to insure against mechanics' or materialmen's liens arising out
of the repair, and to insure completion of the repair. In the event that the
insurance proceeds are insufficient to cover the cost of the repair, then any
amount in excess thereof required to complete the repair shall be paid by
Lessee.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessee shall pay all real property taxes
applicable to the Premises during the term of this Lease. All such payments
shall be made at least ten (10) days prior to the delinquency date of such
payment. Lessee shall promptly furnish Lessor with satisfactory evidence that
such taxes have been paid. If any such taxes paid by Lessee shall cover any
period of time prior to or after the expiration of the term hereof, Lessee's
share of such taxes shall be equitably prorated to cover only the period of
time within the tax fiscal year during which this lease shall be in effect, and
Lessor shall reimburse Lessee to the extent required. If Lessee shall fail to
pay any such taxes, Lessor shall have the right to pay the same, in which case
Lessee shall repay such amount to Lessor with Lessee's next rent installment
together with interest at the rate of 10% per annum.
10.2 DEFINITION OF "REAL PROPERTY" TAX. As used herein, the term "real
property tax" shall include any form of assessment, license fee, commercial
rental tax, levy, penalty, or tax (other than inheritance or estate taxes),
imposed by any authority having the direct or indirect power to tax, including
any city, county, state or federal government, or any school, agricultural,
lighting, drainage or other improvement district thereof, as against any legal
or equitable interest of Lessor in the Premises or in the real property of
which the Premises are a part, as against Lessor's right to rent or other
income therefrom, or as against Lessor's business of leasing the Premises.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.4 PERSONAL PROPERTY TAXES. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Lessee contained in the Premises or
elsewhere. When possible, Lessee shall cause said trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor of
all charges jointly metered with other premises.
<PAGE> 4
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease.
12.2 NO RELEASE OF LESSEE. Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligation or alter
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting.
12.3 ATTORNEY'S FEES. In the event that Lessor shall consent to a
sublease or assignment under Paragraph 12.1, Lessee shall pay Lessor's
reasonable attorneys' fees not to exceed $100 incurred in connection with
giving such consent.
13. DEFAULTS; REMEDIES.
13.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or
any other payment required to be made by Lessee hereunder, as and when due,
where such failure shall continue for a period of three days after written
notice thereof from Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Lessee, other than described in paragraph (b) above, where such failure
shall continue for a period of 30 days after written notice hereof from Lessor
to Lessee; provided, however, that if the nature of Lessee's default is such
that more than 30 days are reasonably required for its cure, then Lessee shall
not be deemed to be in default if Lessee commenced such cure within said 30-day
period and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general assignment, or
general arrangement for the benefit of creditors; (ii) the filing by or against
Lessee of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Lessee, the same is dismissed within 60
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within 30
days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within 30 days.
13.2 REMEDIES. In the event of any such default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises
by any lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee all damages incurred by Lessor
by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's
fees, and any real estate commission actually paid; the worth at the time of
award by the court having jurisdiction thereof of the amount by which the
unpaid rent for the balance of the term after the time of such award exceeds
the amount of such rental loss for the same period that Lessee proves could be
reasonably avoided; that portion of the leasing commission paid by Lessor
pursuant to Article 15 applicable to the unexpired term of this Lease. Unpaid
installments of rent or other sums shall bear interest from the date due at the
rate of 10% per annum. In the event Lessee shall have abandoned the premises,
Lessor shall have the option of (i) retaking possession of the premises and
recovering from Lessee the amount specified in this Paragraph 13.2(a), or (ii)
proceeding under Paragraph 13.2(b).
(b) Maintain Lessee's right to possession in which case
this Lease shall continue in effect whether or not Lessee shall have abandoned
the Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent
as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the State of California.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless
Lessor fails to perform obligations required of Lessor within a reasonable
time, but in no event later than thirty (30) days after written notice by
Lessee to Lessor and to the holder of any first mortgage or deed of trust
covering the Premises whose name and address shall have theretofore been
furnished to Lessee in writing, specifying wherein Lessor has failed to perform
such obligation; provided, however, that if the nature of Lessor's obligation
is such that more than thirty (30) days are required for performance then
Lessor shall not be in default if Lessor commences performance within such
30-day period and thereafter diligently prosecutes the same to completion.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, Lessee shall pay to Lessor a late charge equal to 10% of
such overdue amount. The parties hereby agree that such late charge represents
a fair and reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue amount,
nor prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possesion, whichever first occurs. If more than 10% of the floor area
of the improvements on the premises, or more than 25% of the land area of the
premises which is not occupied by any improvements, is taken by condemnation,
Lessee may, at Lessee's option, to be exercised in writing only within ten (10)
days after Lessor shall have given Lessee written notice of such taking (or in
the absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent shall be
reduced in the proportion that the floor area taken bears to the total floor
area of the building situated on the Premises. Any award for the taking of all
or any part of the premises under the power of eminent domain or any payment
made under threat of the exercise of such power shall be the property of
Lessor, whether such award shall be made as compensation for diminution in
value of the leasehold or for the taking of the fee, or as severance damages;
provided, however, that Lessee shall be entitled to any award for loss of or
damage to Lessee's trade fixtures and removable personal property. In the event
that this Lease is not terminated by reason of such condemnation, Lessor shall,
to the extent of severance damages received by Lessor in connection with such
condemnation, repair any damages to the premises caused by such condemnation
except to the extent that Lessee has been reimbursed therefor by the condemning
authority. Lessee shall pay any amount in excess of such severance damages
required to complete such repair.
16. GENERAL PROVISIONS.
16.1 ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10)
days prior written notice from Lessor execute, acknowledge and deliver to
Lessor a statement in writing (i) certifying that this Lease is unmodified and
in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (iii) acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder, or specifying
such defaults if any are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such
time shall be conclusive upon Lessee (i) that this Lease is in full force and
effect, without modification except as may be represented by Lessor, (ii) that
there are no uncured defaults in Lessor's performance, and (iii) that not more
than one month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the premises,
or any part thereof, Lessee hereby agrees to deliver to any lender designated
by Lessor such financial statements of Lessee as may be reasonably required by
such lender. Such statements shall include the past three years' financial
statements of Lessee. All such financial statements shall be received by Lessor
in confidence and shall be used only for the purposes herein set forth.
16.2 LESSOR'S LIABILITY. The term "Lessor" as used herein shall
mean only the owner or owners at the time in question of the fee title or a
lessee's interest in a ground lease of the premises, and except as expressly
provided in Paragraph 15, in the event of any transfer of such title or
interest, Lessor herein named (and in case of any subsequent transfers the then
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall,
subject as aforesaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership.
16.3 SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
16.4 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at 10%
per annum from the date due. Payment of such interest shall not excuse or cure
any default by Lessee under this Lease.
16.5 TIME OF ESSENCE. Time is of the essence.
16.6 CAPTIONS. Article and paragraph captions are not a part
hereof.
16.7 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease
contains all agreements of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such matter shall
be effective. This Lease may be modified in writing only, signed by the parties
in interest at the time of the modification.
16.8 NOTICES. Any notice required or permitted to be given
hereunder shall be in writing and may be served personally or by regular mail,
addressed to Lessor and Lessee respectively at the addresses set forth after
their signatures at the end of this Lease.
<PAGE> 5
16.9 WAIVERS. No waiver by Lessor of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provision. Lessor's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of rent
hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
rent so accepted, regardless of Lessor's knowledge of such preceding breach at
the time of acceptance of such rent.
16.10 RECORDING. Lessee shall not record this Lease without Lessor's
prior written consent and such recordation shall, at the option of Lessor,
constitute a non-curable default of Lessee hereunder. Either party shall, upon
request of the other, execute, acknowledge and deliver to the other a "short
form" memorandum of this Lease for recording purposes.
16.11 HOLDING OVER. If Lessee remains in possession of the Premises
or any part thereof after the expiration of the term hereof without the express
written consent of Lessor, such occupancy shall be a tenancy from month to
month at a rental in the amount of the last monthly rental plus all other
charges payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy.
16.12 CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
16.13 COVENANTS AND CONDITIONS. Each provision of this Lease
performable by Lessee shall be deemed both a covenant and a condition.
16.14 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions
hereof restricting assignment or subletting by Lessee and subject to the
provisions of Paragraph 16.2, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of California.
16.15. SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation for security
now or hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to
effectuate such subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be, and failing to do
so within ten (10) days after written demand, does hereby make, constitute and
irrevocably appoint Lessor as Lessee's attorney in fact and in Lessee's name,
place and stead, to do so.
16.16 ATTORNEY'S FEES. If either party or the broker named herein
brings an action to enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action, on trial or appeal, shall be entitled to
his reasonable attorney's fees to be paid by the losing party as fixed by the
court. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder.
16.17 LESSOR'S ACCESS. Lessor and Lessor's agents shall have the
right to enter the Premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, or lenders, and making
such alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and lessor may at any time during the last 120 days of the term hereof
place on or about the Premises any ordinary "For Lease" signs, all without
rebate of rent or liability to Lessee.
16.18 SIGNS AND AUCTIONS. Lessee shall not place any sign upon the
Premises or conduct any auction thereon without Lessor's prior written consent.
16.19 MERGER. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger, and shall,
at the option of Lessor, terminate all or any existing subtenancies or may, at
the option of Lessor, operate as an assignment to Lessor of any or all of such
subtenancies.
16.20 CORPORATE AUTHORITY. If Lessee is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation, in accordance with a duly adopted resolution of the Board
of Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation Lessee shall, within thirty (30)
days after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
See Attached Addendum For Additional Terms and Conditions.
The parties hereto have executed this Lease at the place and on the
dates specified immediately adjacent to their respective signatures.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR
SUBMISSION TO YOUR ATTORNEY FOR HIS APPROVAL. NO
REPRESENTATION OR RECOMMENDATION IS MADE BY THE REAL
ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS
LEASE OR THE TRANSACTION RELATING THERETO.
Executed at Los Angeles SIX SIXTY LTD.
--------------------------------- ---------------------------------
on May 1, 1984 By /s/ WILLIAM ROPER
------------------------------------------ -------------------------------
Address 14720 Alondra Blvd. By /s/ C. RICHARD ROPER
------------------------------------- -------------------------------
La Mirada, CA 90638-9985 "LESSOR"
--------------------------------------------
Executed at Los Angeles ROPAK WEST INC.
--------------------------------- ---------------------------------
on May 1, 1984 By /s/ ROBERT E. ROPER, PRESIDENT
------------------------------------------ -------------------------------
Address 14720 Alondra Blvd. By
------------------------------------- -------------------------------
La Mirada, CA 90638-9985
-------------------------------------------- "LESSEE"
<PAGE> 1
SECOND ADDENDUM DATED OCTOBER 31, 1985 TO LEASE DATED JANUARY 25, 1984 TO
REPLACE PRIOR ADDENDUM
BY AND BETWEEN SIX SIXTY LTD., LESSOR AND ROPAK CORPORATION, LESSEE, FOR THE
PREMISES KNOWN AS 600 SOUTH STATE COLLEGE BLVD., FULLERTON, CALIFORNIA 92631
ADDITIONAL TERMS AND CONDITIONS:
1. Lessee shall have two (2) options to renew this Lease, each for an
additional term of five (5) years upon the following terms and conditions:
A. Provided that at the end of the primary term of this Lease
Lessee is in possession of the premises and is not in default
of any of the terms, conditions or covenants contained in this
Lease, Lessee herein, for Lessee's sole use and occupancy, is
hereby granted an option to renew this Lease for an additional
term of five years commencing April 1, 1989 and expiring March
31, 1994 (hereinafter the "First Option Term") on the same
terms and conditions contained herein, except for rental. The
rental for said First Option Term shall not be less than that
paid during the primary term of this Lease and shall be at a
renegotiated rental rate equal to the then fair market value
charged for comparable space in the area.
B. Provided that at the end of the First Option Term of this
Lease Lessee is in possession of the premises and is not in
default of any of the terms, conditions or covenants contained
in this Lease, Lessee herein, for Lessee's sole use and
occupancy, is hereby granted an option to renew this Lease for
an additional term of five years commencing April 1, 1994 and
expiring March 31, 1999, on the same terms and conditions
contained herein, except for rental. The rental for said
renewal term shall not be less than that paid during the First
Option Term of this Lease and shall be at a renegotiated
rental rate equal to the then fair market value charged for
comparable space in the area.
C. Lessee shall notify Lessor, in writing, of its desire to
exercise an option as set forth in 1.A or 1.B above, no later
than ninety (90) days prior to the expiration of the primary
term or First Option Term of this Lease, as applicable, and
Lessor shall within fifteen (15) days after receiving such a
written notice from Lessee designate a place and a time to
meet with Lessee for the purpose of negotiating a new rental
for said additional five years.
EXHIBIT 10.59 Page 1
<PAGE> 2
D. In the event Lessor and Lessee fail to agree upon a new rental
rate for either five year extended term, then such rate shall
be determined by a mutually agreeable independent real estate
appraiser.
2. As additional rent Lessee shall pay all community association dues and
assessments applicable to the premises during any term of this Lease.
SIX SIXTY LTD. ROPAK CORPORATION
"LESSOR" (formerly named Ropak west Inc.)
"LESSEE"
By: /s/ WILLIAM H. ROPER By: /s/ WILLIAM H. ROPER
William H. Roper William H. Roper
By: /s/ ROBERT E. ROPER
Robert E. Roper
By: /s/ C. RICHARD ROPER
C. Richard Roper
EXHIBIT 10.59 Page 2
<PAGE> 1
ARTICLE NINTH TO THE CERTIFICATE OF INCORPORATION OF ROPAK CORPORATION
NINTH: Certain Business Combinations.
9.1. In addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise expressly provided in
Section 9.2 of this Article NINTH:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as that term is hereinafter defined) with (l) an
Interested Stockholder (as that term is hereinafter defined) or (2)
any other corporation or other Person (whether or not itself an
Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate (as such terms are
hereinafter defined) of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, grant of a
security interest, transfer or other disposition, either in one
transaction or in a series of transactions, to or with (1) an
Interested Stockholder or (2) any other Person (whether or not itself
an Interested Stockholder) which is, or after such sale, lease,
exchange, mortgage, pledge, grant of a security interest, transfer or
other disposition would be, an Affiliate or Associate of an Interested
Stockholder, directly or indirectly, of assets of the Corporation
(including, without limitation, any voting securities of a Subsidiary)
or any Subsidiary, or both, having an aggregate Fair Market Value (as
such term is hereinafter defined) of $25,000,000 or more; or
(c) the issuance or transfer by the Corporation or any
Subsidiary, either in one transaction or in a series of
transactions,of any securities of the Corporation or any Subsidiary,
or both, to (l) an Interested Stockholder or (2) Any other Person
(whether or not itself any Interested Stockholder) which is, or after
such issuance or transfer would be, an Affiliate or Associate of an
Interested Stockholder in exchange for cash, securities or other
property, or a combination thereof, having an aggregate Fair Market
Value of $25,000,000 or more, other than the issuance of securities
upon the conversion of convertible securities of the Corporation or
any Subsidiary which were not acquired by such Interested Stockholder
(or such Affiliate or Associate) from the Corporation or a Subsidiary;
or
(d) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate or Associate of an Interested
Stockholder; or
(e) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or into or
otherwise involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of
the Corporation or any
EXHIBIT 10.60 Page 1
<PAGE> 2
Subsidiary directly or indirectly beneficially owned by (1) an
Interested Stockholder or (2) any other Person (whether or not itself
an Interested Stockholder) which is, or after such reclassification,
recapitalization, merger or consolidation or other transaction would
be, an Affiliate or Associate of an Interested Stockholder,
shall not be consummated unless such consummation shall have been approved by
the affirmative vote of the holders of at least 80% of the combined voting
power of the then outstanding shares of Voting Stock (as such term is
hereinafter defined), voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified, by law, by this Certificate of
Incorporation or in any agreement to which the Corporation is a party.
9.2. The provisions of Section 9.1 of this Article NINTH shall not be
applicable to any particular Business Combination (as such term is hereinafter
defined) and such Business Combination shall require only such affirmative vote
as is required by law and any other provision of this Certificate of
Incorporation, if the Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined) or all of the
following conditions shall have been met:
A. The transaction constituting the Business Combination
shall provide for a consideration to be received by all holders of
Common Stock in exchange for all their shares of Common Stock, and the
aggregate amount of the cash and the Fair Market Value as of the date
of the consummation of the Business Combination of consideration other
than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the higher of the
following:
(1) (if applicable) the highest per-share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid in order to acquire any shares
of Common Stock beneficially owned by an Interested
Stockholder (i) within the two-year period immediately prior
to the Announcement Date (as hereinafter defined), (ii) within
the two-year period immediately prior to the Determination
Date (as hereinafter defined) or (iii) in the transaction in
which it became an Interested Stockholder, whichever is
highest; or
(2) the Fair Market Value per share of Common Stock
on the Announcement Date or on the Determination Date,
whichever is higher;
B. If the transaction constituting the Business Combination
shall provide for a consideration to be received by holders of any
class or series of outstanding Voting Stock other than Common Stock,
the aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of shares of such
class or series of Voting Stock shall be at least equal to the highest
of the following (it being intended that the requirements of this
paragraph
EXHIBIT 10.60 Page 2
<PAGE> 3
B shall be required to be met with respect to every class and series
of outstanding Voting Stock, whether or not an Interested Stockholder
has previously acquired any shares of a particular class of Voting
Stock):
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid in order to acquire any shares
of such class or series of Voting Stock beneficially owned by
an Interested Stockholder (i) within the two-year period
immediately prior to the Announcement Date, (ii) within the
two-year period immediately prior to the Determination Date or
(iii) in the transaction in which it became an Interested
Stockholder, whichever is highest; or
(2) the Fair Market Value per share of such class or
series of Voting Stock on the Announcement Date or the
Determination Date, whichever is higher; or
(3) (if applicable) the highest preferential amount
per share to which the holders of shares of such class or
series of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation;
C. The consideration to be received by holders of a
particular class or series of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as was previously
paid in order to acquire shares of such class or series of Voting
Stock which are beneficially owned by an Interested Stockholder and,
if an Interested Stockholder beneficially owns shares of any class or
series of Voting Stock which were acquired with varying forms of
consideration, the form of consideration for such class or series of
Voting Stock shall be either cash or the form used to acquire the
largest number of shares of such class or series of Voting Stock
beneficially owned by it. The price determined in accordance with
paragraphs A and B of this Section 9.2 shall be subject to appropriate
adjustment in the event of any recapitalization, stock dividend, stock
split, combination of shares or similar event;
D. After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
(1) except as approved by a majority of the
Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefor the full amount
of any dividends (whether or not cumulative) payable on any
outstanding Preferred Stock;
(2) there shall have been (i) no reduction in the
annual rate of cash dividends paid on the Common Stock, if
any, (except as necessary to reflect any subdivision of the
Common Stock) other than as approved by a majority of the
Continuing Directors and (ii) an increase in such annual rate
EXHIBIT 10.60 Page 3
<PAGE> 4
of cash dividends as necessary to prevent any such reduction
in the event of any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so
to increase such annual rate is approved by a majority of the
Continuing Directors; and
(3) such Interested Stockholder shall not have become
the beneficial owner of any additional shares of Voting Stock
except as part of the transaction in which it became an
Interested Stockholder;
E. After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise; and
F. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the United
States Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to the stockholders of the
Corporation, no later than the earlier of (a) 30 days prior to any
vote on the proposed Business Combination or (b) if no vote on such
Business Combination is required, 60 days prior to the consummation of
such Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions). Such proxy statement shall contain at the front thereof,
in a prominent place, any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing
Directors, or any of them, may have furnished in writing and, if
deemed advisable by a majority of the Continuing Directors, an opinion
of a reputable investment banking firm as to the fairness (or lack of
fairness) of the terms of such Business Combination, from the point of
view of the holders of Voting Stock other than an Interested
Stockholder (such investment banking firm to be selected by a majority
of the Continuing Directors, to be furnished with all information it
reasonably requests and to be paid a reasonable fee for its services
upon receipt by the Corporation of such opinion).
9.3. For the purposes of this Article NINTH, the following terms
shall be defined as follows:
9.3.1. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
promulgated under the United States Securities Exchange Act of 1934, as amended
and as in effect on June 1, l989.
EXHIBIT 10.60 Page 4
<PAGE> 5
9.3.2. "Announcement Date" shall mean the date of the first public
announcement of the proposed Business Combination (as such term is hereinafter
defined).
9.3.3. "Business Combination" shall mean any transaction which is
referred to in any one of more of paragraphs (a), (b), (c), (d) and/or (e) of
Section 9.1 of this Article NINTH.
9.3.4. "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a nominee of, an
Interested Stockholder (as such term is hereinafter defined) and was a member
of the Board of Directors prior to the time that such Interested Stockholder
became an Interested Stockholder, and any successor of a Continuing Director
who is unaffiliated with, and not a nominee of, an Interested Stockholder and
is recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board of Directors.
9.3.5. "Determination Date" shall mean the date on which an
Interested Stockholder (as such term is hereinafter defined) first became an
Interested Stockholder.
9.3.6. "Fair Market Value" shall mean:
(i) in the case of stock, the highest price per share for such
stock during the 30-day period immediately preceding the day in question, as
determined by reference to the following:
(A) if such stock is listed and traded on a
national securities exchange, the highest closing sale price per share on any
day during such period as reported by such national securities exchange; or (B)
if such stock is not listed and traded on a national securities exchange, but
is publicly traded in the over-the-counter market, the highest closing sale or
bid price per share on any day during such period as reported by the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"), or if
not quoted by NASDAQ, as reported by securities dealers actively making a
market in such stock; or (C) if such stock is not listed and traded on a
national securities exchange and is not publicly traded in the over-the-counter
market, the fair market value per share of such stock on the date in question
shall be determined in good faith by a majority of the Continuing Directors;
and
(ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by a
majority of the Continuing Directors in good faith.
9.3.7. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(A) is the beneficial owner, directly or indirectly,
of more than five percent (5%) of the combined voting power of the then
outstanding Voting Stock (as such term is hereinafter defined); or
EXHIBIT 10.60 Page 5
<PAGE> 6
(B) is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of more than five percent (5%) of the
combined voting power of the then outstanding Voting Stock; or
(C) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock which were at any time
within the two-year period immediately prior to the date in question
beneficially owned by an Interested Stockholder, unless such assignment or
succession shall have occurred pursuant to a Public Transaction or any series
of transactions involving a Public Transaction.
For the purpose of determining whether any Person is an Interested
Stockholder, the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through the application of Section 9.3.9
below, but shall not include any other shares of Voting Stock which may be
issuable to other parties pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, exchange rights, warrants
or options, or otherwise.
9.3.8. "Person" shall mean any individual, firm, trust, partnership,
association, corporation or other entity.
9.3.9. A Person shall be deemed a "beneficial owner" of any Voting
Stock:
(i) which such Person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(ii) which such Person or any of its Affiliates or
Associates has either (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (B) the right to
vote or to direct the voting thereof pursuant to any agreement, arrangement or
understanding; or
(iii) which is beneficially owned, directly or
indirectly, by any other person with which such Person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares of Voting Stock.
9.3.10. "Public Transaction" shall mean any (i) purchase of shares
offered pursuant to an effective registration statement under the United States
Securities Act of 1933 or (ii) open market purchase of shares on a national
securities exchange or in the over-the-counter market if, in either such case,
the price and other terms of sale are not negotiated by the purchaser and the
seller of the beneficial interest in the shares.
9.3.11. "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations
EXHIBIT 10.60 Page 6
<PAGE> 7
promulgated under the United States Securities Exchange Act of 1934, as in
effect on December 31, 1989) is owned, directly or indirectly, by the
Corporation; provided, however, that for purposes of the definition of
Interested Stockholder set forth above in this Article NINTH, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the Corporation.
9.3.12. "Voting Stock" shall mean stock of all classes and series of
the Corporation entitled to vote generally in the election of Common Directors.
9.4. A majority of the Continuing Directors shall have the power and
duty to determine for the purposes of this Article NINTH, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article NINTH, including without limitation (a)
whether any Person is an Interested Stockholder, (b) the number of shares of
Voting Stock beneficially owned by any Person, (c) whether any Person is an
Affiliate or Associate of another, (d) whether the assets which are the subject
of any Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $25,000,000 or
more, (e) whether the requirement of Section 9.2 of this Article NINTH have
been met, and (f) such other matters with respect to which a determination is
required under this Article NINTH. The good faith determination of a majority
of the Continuing Directors on such matters shall be conclusive and binding for
all purposes of this Article NINTH.
9.5. Nothing contained in this Article NINTH shall be construed to
relieve an Interested Stockholder from any fiduciary obligation imposed by law.
9.6. Notwithstanding any other provisions of this Certificate of
Incorporation or the By-Laws of the Corporation or the fact that a lesser
percentage may be specified by law, in addition to any affirmative vote
required by applicable law and any voting rights granted to or held by the
holders of Preferred Stock, the affirmative vote of a majority of the
Continuing Directors and of the holders of at least eighty percent (80%) of the
combined voting power of the then outstanding Voting Stock, voting together as
a single class, shall be required to amend, alter, adopt any provision
inconsistent with or repeal this Article NINTH."
EXHIBIT 10.60 Page 7
<PAGE> 1
SECTION 9 OF ARTICLE SIXTH TO THE CERTIFICATE OF INCORPORATION
OF ROPAK CORPORATION
9. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in paragraph (b) hereof, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the board of directors of
the Corporation. The right to indemnification conferred in this Section shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph
(a) of this Section is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in
EXHIBIT 10.61 Page 1
<PAGE> 2
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant
has not met such applicable standard or conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
# # # # #
EXHIBIT 10.61 Page 2
<PAGE> 1
ARTICLE X TO THE BYLAWS OF ROPAK CORPORATION
ARTICLE X
Indemnification
1. (a) To the extent permitted by the Delaware General
Corporation Law and by the corporation's certificate of incorporation, the
corporation shall indemnify and hold harmless the directors and officers of
this corporation (the "Indemnified Party") against any and all losses, claims,
damages, judgments, liabilities or costs, including related attorneys' fees
and other costs of investigation, preparation, defense and providing evidence,
whether or not in connection with litigation in which the Indemnified Party is
a party, as and when such losses, claims, damages, judgments, liabilities or
costs are incurred, which are directly or indirectly caused by, relating to,
based upon or arising out of any act or omission on the part of the Indemnified
Party in his capacity as a director, agent or fiduciary of the corporation or
in connection with any transactions undertaken as a result of such
relationships, including without limitation any actions taken or decisions made
as a director or as a member of any committee of the Board of Directors with
respect thereto.
(b) Notwithstanding the foregoing, the obligation of the
corporation to advance expenses pursuant hereto shall be subject to the
condition that if, when and to the extent that a final judicial determination
is made (as to which all rights of appeal therefrom have been exhausted or
lapsed) to the effect that the Indemnified Party is not permitted to be so
indemnified under applicable law, the corporation shall be entitled to be
reimbursed by the Indemnified Party (who, with reference to Section 9(a) of
Article Sixth of the Company's certificate of incorporation, shall agree to so
reimburse the Company) for all amounts theretofore paid.
2. The Indemnified Party shall promptly notify the corporation in
writing of any action or proceeding (including any governmental investigation)
brought or asserted against the Indemnified Party in respect of which indemnity
is sought from the corporation hereunder, and (subject to clause (c) below) the
corporation shall promptly assume the defense thereof with counsel of the
corporation's choice reasonably acceptable to the Indemnified Party and the
payment of all fees and expenses incurred in connection with the defense
thereof. The Indemnified Party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof if: (a) the
Indemnified Party shall pay the fees and expenses of such separate counsel, or
(b) the corporation shall have failed to assume the defense of such action
within a reasonable time after notice from the Indemnified Party, or (c) the
named parties to any such action or proceeding (including any impleaded
parties) include both the Indemnified Party and the corporation and the
Indemnified Party shall have been advised in writing by counsel that there may
be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the corporation, in which
case the Indemnified Party may elect in writing to employ separate counsel
reasonably acceptable to the corporation at the expense of the corporation
(after which the corporation shall not
EXHIBIT 10.62 Page 1
<PAGE> 2
have the right to defense of such action or proceeding on behalf of such
Indemnified Party), it being understood, however, that the corporation shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time. The corporation shall
not be liable for any settlement of any such action or proceeding effected
without its written consent (which shall not be unreasonably withheld), but if
any such action or proceeding is settled with its written consent, the
corporation agrees to indemnify and hold harmless the Indemnified Party from
and against any loss, claim, damage, or liability (to the extent stated above)
by reason of such settlement or judgment.
3. In order to provide for just and equitable contribution, if a
claim for indemnification hereunder is found unenforceable in a final judgment
by a court of competent jurisdiction (not subject to further appeal), even
though the express provisions hereof provide for indemnification in such case,
then the corporation shall contribute to the losses, claims, damages,
judgments, liabilities or costs to which the Indemnified Parties may be subject
in accordance with the relative benefits received by, and the relative fault
of, the corporation in connection with the statements, acts or omissions which
resulted in such losses, claims, damages, judgments, liabilities, or costs.
4. In the event the Indemnified Party shall be required to give
evidence by way of deposition or as a witness at trial, the corporation agrees
to compensate the Indemnified Party at the per diem rate of $600 per day for
each day or portion of a day devoted to attendance at depositions or as a
witness at trial. The corporation shall have no obligation to compensate the
Indemnified Party for time devoting to preparation as a witness.
5. These indemnification provisions shall (i) remain operative
and in full force and effect regardless of any termination of the relationship
between the corporation and the Indemnified Party; (ii) inure to the benefit
of any successors, assigns, heirs or personal representative of the Indemnified
Party; and (iii) be in addition to any other rights that the Indemnified Party
may have.
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EXHIBIT 10.62 Page 2
