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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)*
PVC CONTAINER CORPORATION
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(Name of Issuer)
Common Stock, $.10 Par Value
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(Title of Class of Securities)
693-651-101
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(CUSIP Number)
401 Industrial Way West, Batontown, New Jersey 07724, Tel. (908) 542-0060
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 12, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement /X/. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
CUSIP No. 693-651-101 PAGE 2 OF 4 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rimer Anstalt
None as Reporting Person is a foreign corporation
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
Not Applicable (b) / /
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3 SEC USE ONLY
Not Applicable
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4 SOURCE OF FUNDS*
Not Applicable
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
Not Applicable
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Liechtenstein
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7 SOLE VOTING POWER
NUMBER OF
SHARES 4,367,414
BENEFICIALLY -----------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING None
PERSON -----------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
4,367,415
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10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,367,415
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
Not Applicable
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
2 of 4
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SCHEDULE 13D
Item 1. Security and Issuer
(a) PVC Container Corporation
(b) 401 Industrial Way West
Eatontown, New Jersey 07724
Item 2. Identity and Background
(a) Rimer Anstalt
(b) Am Schragen Weg 2
9490 Vaduz, Liechtenstein
(c) Not Applicable
(d) No
(e) No
(f) Liechtenstein
Item 3. Source and Amount of Funds or Other Consideration
Not Applicable
Item 4. Purpose of Transaction
(a) Pursuant to a Stock Purchase Agreement dated
December 3, 1996 among the Issuer, Kirtland Capital Partners II L.P. and Rimer
Anstalt, Rimer Anstalt sold to Kirtland on December 12, 1996 4,367,415 shares of
the Issuer in consideration of the payment in cash of $17,469,660 by Kirtland to
Rimer Anstalt, a copy of such agreement is annexed hereto, and as a result of
the transaction Rimer Anstalt will not own any shares of common stock of the
Issuer.
(b) Not Applicable
(c) Not Applicable
(d) See Stock Purchase Agreement annexed
(e) None
(f) None
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(g) None
(h) None
(i) Not Applicable
(j) Not Applicable
Item 5. Interest in Securities of the Issuer.
(a) 4,367,415 shares of common stock of the Issuer
representing 63%
(b) 4,367,415 shares of common stock of the Issuer
(c) None
(d) None
(e) As a result of the transaction set forth in the Stock
Purchase Agreement annexed hereto and in item 4(a) above,
the Reporting Person ceased to be the beneficial owner
of any shares of common stock of the Issuer
Item 6. Contracts, Etc.
See Stock Purchase Agreement annexed hereto
Item 7. Material to be Filed as Exhibits
Stock Purchase Agreement.
SIGNATURE
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.
Rimer Anstalt
DATE: December 12, 1996
By: /s/ Hubert Lampert
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Hubert Lampert,
Director
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EXHIBIT INDEX
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Exhibit No. Description
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Ex. 99 Stock Purchase Agreement.
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of this 3rd day of December, 1996, by and among Kirtland Capital
Partners II L.P., an Ohio limited partnership (the "Buyer"), PVC Container
Corporation, a Delaware corporation (the "Company"), and Rimer Anstalt, a
Liechtenstein anstalt (the "Seller").
RECITALS
A. The Company has 7,004,705 shares of common stock,
par value $.01 per share (the "Shares"), issued and outstanding; and
B. The Seller is the sole record and beneficial owner
of 4,367,415 Shares (the "Purchase Shares"); and
C. The Seller is willing to sell, and the Buyer is
willing to purchase, all of the Purchase Shares on the terms set forth herein;
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, conditions and agreements
herein contained, and intending to be legally bound, the parties hereto hereby
agree as follows:
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ARTICLE I
PURCHASE AND SALE OF THE PURCHASE SHARES
1.1 Sale of the Purchase Shares. At the Closing (as hereinafter
defined), the Seller shall sell, convey, transfer and deliver to the Buyer and
the Buyer shall purchase and acquire from the Seller, the Purchase Shares free
and clear of any and all liens, pledges, charges, proxies, equities,
encumbrances, contracts, commitments, title retention agreements, restrictions
on transfer (except under applicable securities laws), security interests,
warrants, options, rights or adverse claims of others of any nature with respect
thereto (collectively, the "Liens").
1.2 Purchase Price. At the Closing and in consideration for the
Purchase Shares, the Buyer shall pay to the Seller the aggregate sum of U.S.
$17,469,660 (the "Purchase Price") by wire transfer of immediately available
funds to such account of the Seller as the Seller shall specify in writing to
the Buyer.
ARTICLE II
CLOSING AND CLOSING DATE
2.1 The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of Jones, Day,
Reavis & Pogue, 599 Lexington Avenue, New York, New York on December 12, 1996
subject to the satisfaction or waiver of each of the conditions set forth in
Article IX hereof or such other time and place as the Buyer, the
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Company and the Seller shall agree (such date is referred to in this Agreement
as the "Closing Date").
2.2 Deliveries at the Closing. At the Closing, (a) the Seller shall
deliver to the Buyer the various certificates, instruments and documents
referred to in Section 6.1 hereof, (b) the Company shall deliver to the Buyer
the various certificates, instruments and documents referred to in Section 6.3
hereof, and (c) the Buyer shall deliver to the Seller the Purchase Price as
provided in Section 6.2 hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyer as follows:
3.1 Corporate Status. The Seller is an anstalt duly organized, validly
existing and in good standing under the laws of Liechtenstein. The Seller has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted. The Seller has heretofore made
available to the Buyer true, correct and complete copy of its Statutes.
3.2 Authority and Capacity for Agreements. The Seller has all requisite
power, authority and capacity to execute and deliver this Agreement and to carry
out and perform its obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate
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action on the part of the Seller. This Agreement has been duly executed and
delivered by the Seller and constitutes the valid and legally binding obligation
of the Seller enforceable in accordance with its terms except that the
enforcement hereof may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
3.3 Noncontravention. Neither the execution, delivery and performance
by the Seller of this Agreement and the consummation (in accordance with the
terms hereof) of the transactions contemplated hereby, nor compliance by the
Seller with any of the provisions hereof will violate, conflict with, or result
in (with or without the giving of notice or the lapse of time or both) a default
under or a breach or violation of, any provision of (a) the Statutes of the
Seller, (b) any mortgage, indenture, lease, contract, deed, agreement or other
instrument to which the Seller is a party or by which it is bound or to which
any of its properties or assets is subject, (c) any law, rule or regulation of
any governmental body (whether domestic or foreign), or (d) any order, judgment
or decree of any court or other governmental body (whether domestic or foreign).
Except as otherwise provided in Schedule 3.3 attached hereto, no consent,
approval, authorization, order, filing, registration, declaration or
qualification of or with any court, governmental body (whether domestic or
foreign) or third person is required to be obtained
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by or on behalf of the Seller in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby.
3.4 Title to the Purchase Shares. The Seller is the sole record and
beneficial owner of the Purchase Shares, free and clear of any and all Liens.
The Purchase Shares represent (a) all of the Shares owned, directly or
indirectly, by the Seller or any of its Affiliates (as hereinafter defined), and
(b) 63% of the issued and outstanding Shares. Each of the Purchase Shares has
been duly and validly authorized and issued and is fully paid and
non-assessable. Neither the Seller nor any of its Affiliates has, directly or
indirectly, any outstanding rights, options, warrants, conversion rights, calls,
puts or agreements of any nature to purchase or acquire any Shares from the
Company or any other person or entity. The Seller is not a party to any (a)
voting trust, proxy, or other agreement or understanding with respect to the
voting of any of the Shares, or (b) option, warrant, purchase right or other
contract or commitment that requires the Seller to sell, transfer or otherwise
dispose of any of the Purchase Shares (other than pursuant to this Agreement).
Upon the delivery of and payment for the Purchase Shares as provided in this
Agreement, the Buyer shall acquire good, marketable and valid title to the
Purchase Shares, free and clear of any and all Liens. For purposes of this
Agreement, "Affiliate" of any person or entity means any person or entity
directly or indirectly controlling, controlled by, or under common control with,
any such person or entity.
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3.5 No Brokers. Neither the Seller nor any Affiliate of the Seller has
retained or been approached by any broker, finder or agent in connection with
this Agreement or the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Buyer
as follows:
4.1 Corporate Status. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Delaware. The
Company is duly qualified to do business as a foreign corporation and is in good
standing in the jurisdictions set forth on Schedule 4.1 attached hereto, which
are the only jurisdictions in which the Company is required to be so qualified.
The Company has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. The Company has
heretofore made available to the Buyer true, correct and complete copies of its
Certificate of Incorporation and By-Laws.
4.2 Subsidiaries. Schedule 4.2 attached hereto identifies each entity
in which the Company owns, directly or indirectly, any shares of capital stock
or other equity securities (collectively, the "Subsidiaries"). Schedule 4.2
includes for each Subsidiary (a) the name of such Subsidiary, (b) the authorized
capital stock of such Subsidiary and the number of shares of such stock owned,
directly or indirectly, by
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the Company, and (c) the jurisdiction of incorporation of such Subsidiary. All
of the issued and outstanding shares of capital stock of each Subsidiary are
duly authorized, validly issued, fully paid and nonassessable. No bonds,
debentures, notes or other instruments or evidence of indebtedness having the
right to vote (or convertible into, or exercisable or exchangeable for,
securities having the right to vote) on any matters on which stockholders of any
Subsidiary may vote ("Subsidiary Voting Debt") are issued or outstanding. Except
as set forth in Schedule 4.2, there are outstanding: (a) no shares of capital
stock, Subsidiary Voting Debt or other voting securities of any Subsidiary; (b)
no securities of any Subsidiary convertible into, or exchangeable or exercisable
for, shares of capital stock of any Subsidiary, Subsidiary Voting Debt or other
voting securities of any Subsidiary, and (c) no options, warrants, calls, puts,
rights (including, without limitation, preemptive rights), commitments or
agreements to which any Subsidiary is a party or by which it is bound, in any
case obligating any Subsidiary to issue, deliver, sell, purchase, redeem or
acquire, or cause to be issued, delivered, sold, purchased, redeemed or
acquired, additional shares of capital stock of any Subsidiary or other voting
securities of any Subsidiary, or obligating any Subsidiary to grant, execute or
enter into any such option, warrant, call, put, right, commitment or agreement.
Except as otherwise disclosed on Schedule 4.2 attached hereto, the Company,
directly or indirectly, has good and marketable title to, and is the sole legal
and beneficial owner of, all of the issued and outstanding
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shares of capital stock of each Subsidiary, free and clear of any and all Liens.
Each Subsidiary is duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation as set forth on Schedule
4.2 and is duly qualified to do business as a foreign corporation and is in good
standing in the jurisdictions set forth on Schedule 4.2 attached hereto, which
are the only jurisdictions in which any such Subsidiary is required to be
qualified. Each Subsidiary has all requisite power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
4.3 Authority and Capacity for Agreement. The Company has all requisite
power, authority and capacity to execute and deliver this Agreement and to carry
out and perform its obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company.
This Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company enforceable
in accordance with its terms except that the enforcement hereof may be limited
by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
4.4 Noncontravention. Neither the execution, delivery and performance
by the Company of this Agreement and the
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consummation (in accordance with the terms hereof) of the transactions
contemplated hereby, nor compliance by the Company with any of the provisions
hereof will violate, conflict with, or result in (with or without the giving of
notice or the lapse of time or both) a default under or a breach or violation
of, any provision of (a) the Certificate of Incorporation or By-Laws of the
Company, (b) any mortgage, indenture, lease, contract, deed, agreement or other
instrument to which the Company is a party or by which it is bound or to which
any of its properties or assets is subject, (c) any law, rule or regulation of
any governmental body (whether domestic or foreign), or (d) any order, judgment
or decree of any court or other governmental body (whether domestic or foreign).
Neither the Company nor any of its Subsidiaries is a party to or otherwise bound
by any agreement or other instrument providing for the payment of any benefit as
a result of the consummation of the transactions contemplated hereby. Except as
otherwise provided in Schedule 4.4 attached hereto, no consent, approval,
authorization, order, filing, registration, declaration or qualification of or
with any court, governmental body (whether domestic or foreign) or third person
is required to be obtained by or on behalf of the Company in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
4.5 Capital Structure. The authorized capital stock of the Company
consists solely of (a) 10,000,000 shares of common stock, par value $.01 per
share, of which 7,004,705 are issued and outstanding, and (b) 1,000,000 shares
of preferred stock, par
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value $1.00 per share, of which none are issued and outstanding. There are no
employment, executive termination or similar agreements providing for the
issuance of any shares of capital stock of the Company. No bonds, debentures,
notes or other instruments or evidence of indebtedness having the right to vote
(or convertible into, or exercisable or exchangeable for, securities having the
right to vote) on any matters on which the Company's stockholders may vote (the
"Company Voting Debt") are issued or outstanding. Except as set forth in this
Section 4.5, there are outstanding: (a) no Shares, Company Voting Debt or other
voting securities of the Company; (b) no securities of the Company convertible
into, or exchangeable or exercisable for, Shares, Company Voting Debt or other
voting securities of the Company; and (c) no options, warrants, calls, puts,
rights (including, without limitation, preemptive rights), commitments or
agreements to which the Company is a party or by which it is bound, in any case
obligating the Company to issue, deliver, sell, purchase, redeem or acquire, or
cause to be issued, delivered, sold, purchased, redeemed or acquired, additional
shares of capital stock or any Company Voting Debt or other voting securities of
the Company, or obligating the Company to grant, extend or enter into any such
option, warrant, call, put, right, commitment or agreement. There are not any
stockholder agreements, voting trusts or other agreements or understandings to
which the Company is a party or by which it is bound relating to the voting of
any Shares that will limit in any way the
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solicitation of proxies by or on behalf of the Company from, or the casting of
votes by, the stockholders of the Company.
4.6 SEC Filings. Each report, schedule, registration statement and
definitive proxy statement filed by the Company (the "Company SEC Documents")
with the Securities and Exchange Commission (the "SEC") complied in all material
respects with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such Company SEC Documents. None of the
Company SEC Documents contained any untrue statement of material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the Company
SEC Documents complied as to form in all material respects with the published
rules and regulations of the SEC with respect thereto, were prepared in
accordance with generally accepted accounting principals ("GAAP") applied on a
consistent basis during the periods involved and present fairly, in all material
respects, in accordance with applicable requirements of GAAP the consolidated
financial position of the Company and its consolidated subsidiaries as of their
respective dates and the consolidated results of operations and the consolidated
cash flows of the Company and its consolidated subsidiaries for the periods
presented therein.
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4.7 Absence of Certain Changes or Events. Except as disclosed in the
Company SEC Documents, since September 30, 1996, the business of the Company has
been carried on only in the ordinary and usual course and there has not been any
adverse change in its business, results of operations or financial condition.
4.8 Compliance with Applicable Laws. To the knowledge of the Company,
the Company and its Subsidiaries hold all permits, licenses, variances,
exemptions, orders, franchises and approvals of all governmental bodies
necessary for the lawful conduct of their respective businesses (the "Company
Permits"). To the knowledge of the Company and except as disclosed in the
Company SEC Documents, the businesses of the Company and its Subsidiaries are
not being conducted in violation of any law, ordinance or regulation of any
governmental body. To the knowledge of the Company, no investigation or review
by any governmental body with respect to the Company or any of its Subsidiaries
is pending or threatened.
4.9 Litigation. To the knowledge of the Company and except as disclosed
in the Company SEC Documents, there is no suit, action or proceeding pending or
threatened against or affecting the Company or any Subsidiary of the Company,
nor is there any written judgement, decree, injunction, rule or order of any
governmental body or arbitrator outstanding against the Company or any
Subsidiary of the Company, which is reasonably likely to result in a material
adverse effect on the Company or its ability to consummate the transactions
contemplated hereby.
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4.10 Taxes. (a) To the knowledge of the Company, except as set forth in
Schedule 4.10(a), (i) all Tax (as hereinafter defined) returns, statements,
reports and forms (including estimated tax or information returns and reports)
required to be filed with any Taxing Authority (as hereinafter defined) with
respect to any Pre-Closing Tax Period (as hereinafter defined) by or on behalf
of the Company or any Subsidiary (collectively, the "Returns") have, to the
extent required to be filed on or before the date hereof, been filed when due in
accordance with all applicable laws; (ii) as of the time of filing, the Returns
correctly reflected the facts regarding the income, business, assets,
operations, activities and status of the Company and its Subsidiaries; (iii) all
Taxes shown as due and payable on the Returns that have been filed have been
timely paid, or withheld and remitted to the appropriate Taxing Authority; (iv)
the reserves established for Taxes with respect to the Company and its
Subsidiaries for any Pre-Closing Tax Period (including any Pre-Closing Tax
Period for which no Return has yet been filed) reflected on the books of the
Company and its Subsidiaries (excluding any provision for deferred income taxes)
are adequate in accordance with GAAP; (v) neither the Company nor any Subsidiary
is delinquent in the payment of any Tax or has requested any extension of time
within which to file any Return except for extensions granted as a matter of
right; (vi) neither the Company nor any Subsidiary (or any member of any
affiliated, consolidated, combined or unitary group of which the Company or any
Subsidiary is or has been a member) has granted
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any extension or waiver of the statute of limitations period applicable to any
Return, which period (after giving effect to such extension or waiver) has not
yet expired; (vii) there is no action, suit or proceeding now pending and no
claim, audit or investigation now pending or any action, suit, claim, audit or
investigation threatened against or with respect to the Company or any
Subsidiary in respect of any Tax; (viii) neither the Company nor any Subsidiary
owns any interest in real property in the State of New York or in any other
jurisdiction in which a Tax is imposed on the transfer of a controlling interest
in an entity that owns any interest in real property; (ix) none of the Company,
any Subsidiary or any other person on behalf of the Company or any Subsidiary
has entered into any agreement or consent pursuant to Section 341(f) of the
Code; (x) there are no Liens for Taxes upon the assets of the Company or any
Subsidiary except Liens for current Taxes not yet due; (xi) neither the Company
nor any Subsidiary will be required to include any adjustment in taxable income
for any Post-Closing Tax Period (as hereinafter defined) under Section 481(c) of
the Code (or any similar provision of the Tax laws of any jurisdiction) as a
result of a change in method of accounting for a Pre-Closing Tax Period or
pursuant to the provisions of any agreement entered into with any Taxing
Authority with regard to the Tax liability of the Company or any Subsidiary for
any Pre-Closing Tax Period; and (xii) neither the Company nor any Subsidiary has
been a member of an affiliated, consolidated, combined or unitary group or
participated in any other arrangement whereby any income,
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revenues, receipts, gain or loss of the Company or any Subsidiary was determined
or taken into account for Tax purposes with reference to or in conjunction with
any income, revenues, receipts, gain, loss, asset or liability of any other
person or entity. To the knowledge of the Company, except as set forth on
Schedule 4.10(a), neither the Company nor any of its Subsidiaries is a party to
or bound by any agreement providing for the allocation or sharing of Taxes with
any entity which is not, either directly or indirectly, a Subsidiary of the
Company (a "Tax Sharing Agreement").
(b) Schedule 4.10(b) contains a list of all jurisdictions
(whether foreign or domestic) to which any Tax imposed on overall net income is
properly payable by the Company or any Subsidiary. The Company has previously
delivered or made available to Buyer true, correct and complete copies of its
federal income tax returns for each of the fiscal years ended December 31, 1990
through December 31, 1995.
(c) For purposes of this Agreement, (i) "Tax" shall mean (a)
any net income, alternative or add-on minimum tax, gross income, gross receipts,
sales, use, ad valorem, value added, transfer, franchise, profits, license,
withholding on amounts paid to or by the Company or any Subsidiary, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, duty or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest, penalty, addition to tax or additional amount imposed by any
governmental authority
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(domestic or foreign) responsible for the imposition of any such tax (a "Taxing
Authority"), (b) any liability of the Company or any Subsidiary for the payment
of any amounts of any of the types described in clause (a) above as a result of
being a member of an affiliated, consolidated, combined or unitary group, or
being a party to any agreement or arrangement whereby liability of the Company
or any Subsidiary for payment of such amounts was determined or taken into
account with reference to the liability of any other person, and (c) liability
of the Company or any Subsidiary for the payment of any amounts as a result of
being party to any Tax Sharing Agreement or with respect to the payment of any
amounts of any of the foregoing types as a result of any express or implied
obligation to indemnify any other person; (ii) "Pre-Closing Tax Period" shall
mean any Tax period (or portion thereof) ending on or before the close of
business on the Closing Date; and (iii) "Post-Closing Tax Period" shall mean any
Tax period (or portion thereof) ending after the close of business on the
Closing Date.
4.11 Pension And Benefit Plans; ERISA.
To the knowledge of the Company, Schedule 4.11 attached hereto contains
a true and complete list of each "employee benefit plan," as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), maintained, contributed to or required to be contributed to by the
Company or any of its Subsidiaries for the benefit of current, former and
retired employees (the "Company ERISA Plans") and each other material plan,
contract, program or arrangement
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maintained, contributed to or required to be contributed to by the Company or
any of its Subsidiaries for the benefit of current, former and retired employees
and directors (the "Company Benefit Arrangements"). To the knowledge of the
Company, each Company ERISA Plan and each Company Benefit Arrangement complies
in all material respects with its terms and all applicable laws, including
ERISA, and no "reportable event," "prohibited transaction" or breach of
fiduciary duty (within the meaning of ERISA) or termination has occurred with
respect to any Company ERISA Plan under circumstances which present a risk of
any material liability to any governmental authority or other person. To the
knowledge of the Company, none of the Company ERISA Plans or Company Benefit
Arrangements is a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA
or a "multiple employee plan" within the meaning of Section 413(c) of the Code
or Section 4063 of ERISA. To the knowledge of the Company, no event has occurred
which would cause the Company to incur (i) any liability to the Pension Benefit
Guaranty Corporation under Section 4069 of ERISA or (ii) any withdrawal
liability to a "multiemployer plan." Copies or descriptions of each Company
ERISA Plan and Company Benefit Arrangement (and, where applicable, the most
recent summary plan description, actuarial report, determination letter, annual
report (Form 5500) and trust agreement relating to such Company ERISA Plan and
Company Benefit Arrangement), and such other information as has been reasonably
requested by Buyer, have been made available to Buyer for review prior to the
date hereof. To the knowledge of the Company, each Company ERISA Plan and each
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Company Benefit Arrangement intended to qualify under section 401(a) of the
Code, is so qualified, and each trust maintained in connection with each such
plan is tax exempt under Code Section 501(a). To the knowledge of the Company,
the Internal Revenue Service ("IRS") has issued favorable determination letters
with respect to the qualification of each qualified Company ERISA Plan and each
qualified Company Benefit Arrangement and related trust, and the IRS has not
taken any action to revoke any such letter. To the knowledge of the Company, if
and to extent applicable, no Company ERISA Plan and no Company Benefit
Arrangement has or has incurred an accumulated funding deficiency within the
meaning of ERISA Section 302 or Code Section 412, nor has any waiver of the
minimum funding standards of ERISA Section 302 and Code Section 412 been
requested of or granted by the IRS with respect to any Company ERISA Plan or
Company Benefit Arrangement, nor has any lien in favor of any such plan arisen
under Code Section 412(n) or ERISA Section 302(f). To the knowledge of the
Company, with respect to any insurance policy providing funding for benefits
under any Company ERISA Plan or Company Benefit Arrangement, there is no
liability of the Company in the nature of a retroactive rate adjustment, loss
sharing arrangement, or other actual or contingent liability, there will be no
such liability arising wholly or partially out of events occurring prior to the
execution of this Agreement, nor would there be any such liability if the
Company cancelled such policy as of the execution of this Agreement.
4.12 Environmental Matters.
(a) For purposes of this Agreement:
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(i) "Environmental Law" means any applicable law regulating or
prohibiting Releases into any part of the environment (indoor or
outdoor), or pertaining to the protection of natural resources or the
environment including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA") (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Sections 1801, et seq.), the
Resource Conservation and Recovery Act (42 U.S.C.Sections 6901,
et seq.), the Clean Water Act (33 U.S.C. Sections 1251, et seq.),
the Clean Air Act (33 U.S.C. Sections 7401, et seq.), the Toxic
Substances Control Act (15 U.S.C. Sections 7401, et seq.) and the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Sections 136, et seq.), and the regulations promulgated pursuant
thereto, and any such applicable state or local statutes, and the
regulations promulgated pursuant thereto, as such laws are in effect on
the date hereof;
(ii) "Hazardous Material" means any substance, material or
waste which is regulated by any public or governmental body in the
jurisdictions in which the Company or any of its Subsidiaries conducts
business, or the United States, including, without limitation, any
material or substance which is defined as a "hazardous waste,"
"hazardous material," "hazardous substance," "extremely hazardous
waste," "restricted hazardous waste," "contaminant," "toxic waste" or
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"toxic substance" under any provision of any Environmental Law;
(iii) "Release" means any release, spill, effluent, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration into the indoor or outdoor environment,
including, without limitation, any property owned, operated or leased
by the Company or any of its Subsidiaries; and
(iv) "Remedial Action" means all actions, including, without
limitation, any capital expenditures, required by a governmental body
or required under any Environmental Law, or voluntarily undertaken to
(a) clean up, remove, treat, or in any other way ameliorate or address
any Hazardous Materials or other substance in the indoor or outdoor
environment; (b) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not endanger
or threaten to endanger the public health or welfare of the indoor or
outdoor environment; (c) perform preremedial studies and investigations
or post-remedial monitoring and care pertaining or relating to a
Release; or (d) achieve or maintain compliance with any Environmental
Law.
(b) To the knowledge of the Company, the operations of the Company and
its Subsidiaries have complied and currently comply with all Environmental Laws.
Except as set forth in
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Schedule 4.12 attached hereto, neither the Company nor any of its Subsidiaries
has received any notice with respect to any of its facilities of any alleged
violation of any Environmental Law or any possible liability or remediation
obligation arising under any Environmental Law.
(c) To the knowledge of the Company, the Company and its Subsidiaries
are not subject to any outstanding orders, judgments, agreements or contracts
with or issued by any governmental body or other person respecting (i)
Environmental Laws, (ii) Remedial Action or (iii) any Release or threatened
Release of a Hazardous Material except as described in Schedule 4.12 attached
hereto.
4.13 No Brokers. Neither the Company nor any Affiliate of the Company
has retained or been approached by any broker, finder or agent in connection
with this Agreement or the transactions contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Seller and the Company
as follows:
5.1 Corporate Status. The Buyer is a limited partnership duly formed
and existing under the laws of the State of Ohio.
5.2 Authority and Capacity for Agreement. The Buyer has all requisite
power, authority and capacity to execute and deliver this Agreement and to carry
out and perform its
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obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary partnership action on the part of the Buyer. This Agreement has
been duly executed and delivered by the Buyer and constitutes the valid and
legally binding obligation of the Buyer enforceable in accordance with its terms
except that the enforcement hereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
5.3 Noncontravention. Neither the execution, delivery and performance
by the Buyer of this Agreement and the consummation (in accordance with the
terms hereof) of the transactions contemplated hereby, nor compliance by the
Buyer with any of the provisions hereof will violate, conflict with, or result
in (with or without the giving of notice or the lapse of time or both) a default
under or a breach or violation of, any provision of (a) the Buyer's certificate
of limited partnership or agreement of limited partnership, (b) any mortgage,
indenture, lease, contract, deed, agreement or other instrument to which the
Buyer is a party or by which it is bound or to which any of its properties or
assets is subject, (c) any law, rule or regulation of any governmental body
(whether domestic or foreign), or (d) any order, judgment or decree of any court
or other governmental body (whether domestic or foreign). Except as otherwise
provided
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in Schedule 5.3 attached hereto, no consent, approval, authorization, order,
filing, registration, declaration or qualification of or with any court,
governmental body or third person is required to be obtained by or on behalf of
the Buyer in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
5.4 No Brokers. Except for George R. Begley, neither the Buyer nor any
Affiliate of the Buyer has retained or been approached by any broker, finder or
agent in connection with this Agreement or the transactions contemplated hereby.
All of the fees and expenses of George R. Begley due and payable on account of
this Agreement and the transactions contemplated hereby shall be borne by the
Buyer.
5.5 Investment. The Buyer is purchasing the Purchase Shares for its own
account and not with a view to the distribution thereof in violation of the
Securities Act or the rules and regulations promulgated thereunder.
ARTICLE VI
CLOSING DELIVERIES
6.1 Deliveries by the Seller. At the Closing, the Seller shall deliver
to the Buyer the following documents:
(a) One or more certificates representing the Purchase Shares, duly
endorsed (or with duly executed stock powers attached) for transfer to the Buyer
with all transfer taxes, if any, paid, and free of any restrictive legends
except legends, if any, reflecting the limitations on the transferability of the
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<PAGE> 24
securities represented thereby which result from the fact that such securities
have not been registered under the Securities Act;
(b) A receipt for payment of the Purchase Price duly executed by the
Seller;
(c) A certified copy of the resolutions of a Director of the Seller
authorizing the execution, delivery and performance of this Agreement; and
(d) An opinion of counsel to the Seller and the Company in a form
mutually acceptable to the Buyer and such counsel.
6.2 Deliveries by the Buyer. At the Closing, the Buyer shall deliver to
the Seller the Purchase Price in the manner contemplated by Section 1.2 hereof.
6.3 Deliveries by the Company. At the Closing, the Company shall
deliver to the Buyer the following documents:
(a) Counterpart signature pages to (i) a Registration Rights Agreement
by and between the Buyer and the Company in a form to be agreed upon between the
Buyer and the Company on or prior to the Closing Date (the "Registration Rights
Agreement") and (ii) a Consulting Agreement by and between Kirtland Capital
Corporation, an Affiliate of the Buyer ("KCC"), and the Company in a form to be
agreed upon between the Buyer and the Company on or prior to the Closing Date
(the "Consulting Agreement"), each duly executed by the Company;
(b) A certified copy of the resolutions of the Board of Directors of
the Company authorizing the execution, delivery
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<PAGE> 25
and performance of this Agreement, the Registration Rights Agreement and the
Consulting Agreement; and
(c) A certificate, in form and substance satisfactory
to Buyer, pursuant to Treas. Reg. Section 1.897-2(g)(1)(i)(A) providing that the
Purchase Shares do not constitute equity interests of a United States real
property holding corporation.
ARTICLE VII
PRE-CLOSING COVENANTS
Between the date of this Agreement and the Closing Date, the Buyer, the
Seller and the Company shall, as applicable, perform the following:
7.1 General. Each of the Buyer, the Seller and the Company shall use
their respective reasonable best efforts to take all actions and to do all
things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement (including satisfying the closing
conditions set forth in Article IX hereof).
7.2 Business in Ordinary Course. The Company shall carry on its
operations (and those of its Subsidiaries) substantially in the same manner as
heretofore conducted. The Company shall not make or institute any material
change in the methods of manufacture, management, accounting or operation of the
Company or its Subsidiaries. 7.3 Contracts and Commitments. The Company shall
not (and shall not permit any of its Subsidiaries to) enter into any contract or
commitment or engage in any transaction, not in the
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usual and ordinary course of business and consistent with the past operation of
the Company.
7.4 Sale of Capital Assets. Except for the sale or other disposition of
excess or obsolete equipment in the usual and ordinary course of business
consistent with the past operation of the Company and its Subsidiaries, the
Company and its Subsidiaries will not sell or otherwise dispose of any capital
asset relating to the Company and its Subsidiaries.
7.5 No General Increases. The Company will not (and will cause each of
its Subsidiaries not to) grant any general or uniform increase in the rates of
pay of employees of the Company or any Subsidiary, nor grant any general or
uniform increase in the benefits under any bonus or pension plan or other
employee-related contract or commitment. The Company shall not increase the
compensation payable or to become payable to any officer or other salaried
employee with a base salary in excess of $50,000 per year or increase any bonus,
insurance, pension or other benefit plan, payment or arrangement made to, for or
with any such officer or salaried employee.
7.6 Preservation of Organization. The Company shall (and shall cause
each of its Subsidiaries to) use its reasonable best efforts to preserve the
business organization of the Company and each of its Subsidiaries, to keep
available the present key officers and employees of the Company and its
Subsidiaries and to preserve the present relationships of the Company and its
Subsidiaries with its suppliers and customers and others having business
relations with the Company and its Subsidiaries.
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7.7 Full Access. The Company shall permit representatives of the Buyer
to have full access at all reasonable times to all of the facilities,
properties, personnel, books and records of the Company and each of its
Subsidiaries to permit the Buyer to complete its due diligence examination of
the Company and each of its Subsidiaries. Without limiting the generality of the
foregoing sentence, (a) the Buyer and its representatives may conduct a Phase I
environmental assessment of any of the facilities maintained by the Company or
any of its Subsidiaries, and (b) the Company shall provide the Buyer with a copy
of its monthly financial statements as promptly as possible following the
preparation of such statements, all of which shall be prepared in accordance
with GAAP applied on a consistent basis during the periods involved and shall
present fairly, in all material respects, in accordance with applicable
requirements of GAAP the consolidated financial position of the Company and its
consolidated subsidiaries as of their respective dates and the consolidated
results of operations and the consolidated cash flows of the Company and its
consolidated subsidiaries for the periods presented therein.
7.8 Exclusivity. Neither the Seller nor any Affiliate of the Seller
shall solicit, initiate, encourage the submission of, provide any information in
connection with or negotiate any proposal or offer from any person or entity, or
provide any information in connection with or negotiate any unsolicited offer or
proposal, relating to any acquisition or purchase of the Purchase Shares or
similar transaction or business combination
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involving the Purchase Shares or the Company. The Seller shall notify the Buyer
promptly if any person makes any proposal, offer, inquiry or contact with
respect to any of the foregoing.
7.9 Tax Matters. The Company shall notify the IRS pursuant to Treas.
Reg. Section 1.897-2(h)(2) informing the IRS that the Company has provided to
the Seller a certificate indicating that the Purchase Shares do not constitute
equity interests of a United States real property holding corporation.
ARTICLE VIII
POST-CLOSING COVENANTS
8.1 Confidentiality. From and after the Closing Date, the Seller shall
retain in confidence, and require its directors, officers, employees,
consultants, professional representatives and agents to retain in confidence,
all information, financial or otherwise, which it has received relating to the
Company's business, assets, financial condition, operations or prospects. The
Seller shall deliver promptly to the Company or destroy, at the request and
option of the Company, all tangible embodiments (and all copies) of confidential
information that is in its possession. Notwithstanding the foregoing provisions
of this Section 8.1, the Seller shall not be precluded from disclosing any
information specified in this Section 8.1 to the extent required by law.
8.2 Board of Directors. (a) Promptly following the Closing Date, the
Company shall (i) increase the size of the Board of Directors of the Company to
up to seven persons and
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(ii) subject to compliance with Section 14(f) of the Exchange Act, cause up to
five persons designated by the Buyer (the "KCP Directors") to be nominated to
the Company's Board of Directors. Promptly following the Closing Date and
subject to compliance with Section 14(f) of the Exchange Act and any other
applicable law, the Company shall take, at the Company's expense, all lawful
action necessary to effect the nomination and election of the KCP Directors,
including, without limitation, mailing to the Company's stockholders the
information required by Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder (the "Information Statement").
(b) None of the information supplied or to be supplied in writing by
the Company expressly for inclusion or incorporation by reference in the
Information Statement will, at the time the Information Statement is first
published, sent or given to the holders of the Shares, and at any time it is
amended or supplemented, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are made,
not misleading.
8.3 Additional Assistance. From time to time after the Closing Date,
the Seller and the Company, at their own expense, shall execute and deliver, or
cause to be executed and delivered, such other instruments, conveyances and
transfers and take, or cause to be taken, such other actions as the Buyer may
reasonably request in order to fully carry out and consummate the transactions
included or provided for in this Agreement.
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ARTICLE IX
CLOSING CONDITIONS
9.1 Conditions to Obligations of the Buyer. The obligation of the Buyer
to consummate the transactions contemplated hereby shall be subject to
satisfaction of each of the following conditions:
(a) the representations and warranties set forth in Articles III
and IV hereof shall be true and correct in all material respects at and as of
the Closing Date;
(b) the Seller and the Company shall have performed and complied
with all of their respective covenants and agreements contained herein in all
material respects;
(c) there shall not be any action, suit or proceeding pending or
threatened before any court or quasi- judicial or administrative agency of any
federal, state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge would (i)
prevent consummation of any of the transactions contemplated by this Agreement,
(ii) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation, or (iii) affect materially and adversely,
including through the imposition of any divestiture requirement, the right of
the Buyer to own the Purchase Shares or to operate the business of the Company
as presently operated and as presently proposed to be operated (and no such
injunction, judgment, order, decree, ruling or charge shall be in effect);
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(d) the Seller and the Company shall have delivered to the Buyer a
certificate to the effect that each of the conditions specified in Section
9.1(a), (b) and (c) hereof have been satisfied in all respects;
(e) all applicable waiting periods (and any extensions thereof)
under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated
without the objection of any of the relevant federal authorities;
(f) the Buyer shall have completed and shall be satisfied, in its
sole and absolute discretion, with the results of its due diligence examination
of the Company and each of its Subsidiaries;
(g) there shall not have occurred a material adverse change in the
business, operations, properties or assets, liabilities, financial condition,
results of operations or prospects of the Company and its Subsidiaries taken as
a whole;
(h) the Company shall have received notification from the New
Jersey Department of Environmental Protection and Energy satisfactory to the
Buyer in its sole discretion that the sale of the Purchase Shares may proceed in
compliance with the provisions of the New Jersey Industrial Site Recovery Act
without the imposition of any liability against the Company or the Buyer on
account of the transactions contemplated hereby;
(i) the Company and the Seller shall have obtained the consents
identified on Schedules 3.3 and 4.4 attached hereto;
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(j) the Seller shall have executed and delivered to the Buyer the
documents identified in Section 6.1; and
(k) the Company shall have executed and delivered to the Buyer the
documents identified in Section 6.3.
The Buyer may waive any condition specified in this Section 9.1 if it
executes a writing so stating at or prior to the Closing Date.
9.2 Conditions to Obligation of the Seller and the Company. The
obligation of the Seller and the Company to consummate the transactions
contemplated hereby shall be subject to satisfaction of the following
conditions:
(a) the representations and warranties set forth in Article V shall
be true and correct in all material respects at and as of the Closing Date;
(b) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects;
(c) there shall not be any action, suit or proceeding pending or
threatened before any court or quasi- judicial or administrative agency of any
federal, state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge would (i)
prevent the consummation of any of the transactions contemplated by this
Agreement or (ii) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation (and no such injunction, judgment, order,
decree, ruling or charge shall be in effect);
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(d) the Buyer shall have delivered to the Seller a certificate to
the effect that each of the conditions specified in Section 9.2 (a), (b) and (c)
hereof have been satisfied in all respects;
(e) all applicable waiting periods (and any extensions thereof)
under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated
without the objection of any of the relevant federal authorities; and
(f) the Buyer shall have delivered to the Seller the Purchase
Price.
The Seller or the Company may waive any condition specified in this
Section 9.2 if either executes a writing so stating at or prior to the Closing.
ARTICLE X
TERMINATION
10.1 Termination of Agreement. This Agreement may be terminated as
follows:
(a) by the mutual written consent of the Buyer, the Seller and the
Company at any time prior to the Closing Date;
(b) the Buyer may terminate this Agreement by giving written notice
to the Seller and the Company at any time prior to the Closing if the Closing
has not occurred on or before December 15, 1996, by reason of the failure of any
closing condition contained in Section 9.1 hereof (unless the failure results
primarily from the Buyer itself breaching any of its representations,
warranties, covenants or agreements contained in
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this Agreement); provided, however, that the Buyer may not terminate this
Agreement under this Section 10.1(b) on account of the failure of the conditions
specified in Sections 9.1(e) or (h) until after December 31, 1996;
(c) the Seller may terminate this Agreement by giving written
notice to the Buyer any time prior to the Closing if the Closing has not
occurred on or before December 15, 1996, by reason of the failure of any closing
condition contained in Section 9.2 hereof (unless the failure results primarily
from the Seller or the Company breaching any of their respective
representations, warranties, covenants or agreements contained in this
Agreement); provided, however, that the Seller may not terminate this Agreement
under this Section 10.1(c) on account of the failure of the condition specified
in Section 9.2(e) until after December 31, 1996;
(d) the Buyer may terminate this Agreement if either the Seller or
the Company commits a material breach of any of their respective
representations, warranties, covenants or agreements contained herein; or
(e) the Seller may terminate this Agreement if the Buyer commits a
material breach of any of its representations, warranties, covenants or
agreements contained herein.
10.2 Effect of Termination. If the Buyer, the Seller or the Company
terminate this Agreement pursuant to Section 10.1, all obligations hereunder
shall thereupon terminate without liability of any party hereto to any other
party hereto (except
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for any liability of any party then in breach); provided that the provisions of
(a) Sections 11.2 and 11.3 hereof and (b) that certain Confidentiality
Agreement, dated November 29, 1995, by and between the Company and KCC shall
survive any such termination and shall remain in full force and effect
thereafter.
ARTICLE XI
GENERAL
11.1 Nonsurvival of Representations and Warranties. None of the
representations and warranties contained in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Closing Date, except for
the representations and warranties contained in Sections 3.4, 3.5, 4.13 and 5.4
hereof, each of which shall survive without limitation as to duration. The
Seller shall indemnify the Buyer from and against any and all losses, costs,
fees and expenses incurred by the Buyer on account of any breach or violation of
the representations and warranties contained in Sections 3.4, 3.5 or 4.13
hereof. The Buyer shall indemnify the Seller and the Company from and against
any and all losses, costs, fees and expenses incurred by the Seller or the
Company on account of any breach or violation of the representation and warranty
contained in Section 5.4 hereof. All of the covenants and agreements contained
in this Agreement shall survive the Closing Date without limitation as to
duration.
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11.2 Expenses. The Seller, the Company and the Buyer shall each bear
their separate expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
11.3 Press Releases and Public Announcements. None of the Buyer, the
Seller or the Company shall issue any press release or make any public
announcement relating to the subject matter of this Agreement without the prior
written approval of the Buyer, the Seller and the Company.
11.4 Waiver. Any failure of any party hereto to comply with any of its
obligations, agreements, conditions or covenants herein contained may be waived
only with the prior written consent of the party which is entitled to the
benefits thereof.
11.5 Notices. All notices shall be in writing and shall be deemed to
have been given three days after the registration if sent by registered mail,
postage prepaid, return receipt requested, or upon delivery by a nationally
recognized overnight courier service or upon confirmation of receipt if sent by
electronic facsimile transmission to the following addresses:
If to the Buyer:
Kirtland Capital Partners II L.P.
2550 SOM Center Road
Suite 105
Willoughby Hills, Ohio 44094
Attention: Raymond A. Lancaster
Telecopy No.: (216) 585-9699
with a copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Charles W. Hardin, Jr.
Telecopy No.: (216) 579-0212
If to the Seller:
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Rimer Anstalt
Am Schragen Weg 2
9490 Vaduz, Liechtenstein
Liechtenstein
Attention: Hubert Lampert
Telecopy No.: 011 41 075 23228 37
with a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, NY 10022-7513
Attention: Herbert S. Meeker
Telecopy No.: (212) 702-5941
If to the Company:
PVC Container Corporation
401 Industrial Way West
Eatontown, New Jersey 07724
Attention: Phillip L. Friedman
Telecopy No.: (908) 542-7706
with a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, NY 10022-7513
Attention: Herbert S. Meeker
Telecopy No.: (212) 702-5941
11.6 Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
11.7 Entire Agreement and Amendment. This Agreement embodies the
entire understanding of the Buyer, the Seller and the Company, and there are no
other agreements or understandings, written or oral, in effect among the Buyer,
the Seller and the Company, relating to the subject matter hereof, unless
expressly referred to by reference herein. This Agreement may be amended or
modified only by an instrument of equal formality signed by
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the Buyer, the Seller and the Company, or their duly authorized
agents.
11.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Ohio without regard to the
conflicts of law principles thereof.
11.9 Submission to Jurisdiction. Any legal action or proceedings
arising out of this Agreement may be brought only in the courts of the State of
Ohio, or in the courts of the United States of America sitting in the State of
Ohio and each of the Buyer, the Seller and the Company, hereto irrevocably
submits to the exclusive jurisdiction of each such court, together with courts
having appellate jurisdiction therefrom, and waives all requirements of personal
jurisdiction or venue with respect thereto, and any writ, judgment or other
notice of legal process shall be sufficiently served on it if delivered pursuant
to Section 11.5 hereof.
11.10 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 shall constitute one and the same instrument.
11.11 Benefit and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Buyer, the Seller and the Company and their
respective successors and assigns. The rights and obligations of the Buyer, the
Seller and the Company hereunder may not be assigned, provided that the Buyer
may assign its right (but not its obligation to pay the Purchase Price) to
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acquire some or all of the Purchase Shares to one or more
Affiliates of the Buyer.
11.12 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
11.13 Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
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IN WITNESS WHEREOF, the Buyer, the Seller and the Company have duly
executed this Agreement on the date first above written.
KIRTLAND CAPITAL PARTNERS II L.P.
By: KIRTLAND CAPITAL CORPORATION,
Its General Partner
By: /s/ Raymond A. Lancaster
-------------------------------
Name: Raymond A. Lancaster
Title: President
RIMER ANSTALT
By: /s/ Hubert Lampert
-------------------------------
Name: Hubert Lampert
Title: Director
PVC CONTAINER CORPORATION
By: /s/ Phillip L. Friedman
-------------------------------
Name: Phillip L. Friedman
Title: President
40
