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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): APRIL 29, 1996
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U.S. CAN CORPORATION UNITED STATES CAN COMPANY
(Exact name of registrant as specified in its (Exact name of registrant as specified in its
charter) charter)
DELAWARE DELAWARE
(State or other jurisdiction of incorporation) (State or other jurisdiction or incorporation)
0-21314 33-43734
(Commission File Number) (Commission File Number)
06-1094196 06-1145011
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
900 Commerce Drive 900 Commerce Drive
Oak Brook, Illinois 60521 Oak Brook, Illinois 60521
(Address of principal executive offices) (Address of principal executive offices)
(708) 571-2500 (708) 571-2500
(Registrant's telephone number, including (Registrant's telephone number,including
area code) area code)
Not Applicable Not Applicable
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(Former name or former address, if changed since (Former name or former address, if changed since
last report.) last report.)
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(Explanatory Note: United States Can Company is not required by Section 13 or
15(d) of the Exchange Act to file reports thereunder, but has agreed, pursuant
to the Indenture under which its 13 1/2% Senior Subordinated Notes Due 2002
were issued, to file all reports required by Section 13 or 15(d) whether or not
required by law.)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On April 29, 1996, United States Can Company ("U.S. Can"), a
wholly owned subsidiary of U.S. Can Corporation (the "Corporation"), acquired
from Alltrista Corporation ("Alltrista") substantially all of the machinery,
equipment and coatings and inks inventory, as well as certain proprietary
technology used in, Alltrista Metal Services ("AMS"), a division of Alltrista
(collectively referred to hereinafter as the "Personal Property"), and assumed
a liability of $452,350. The Personal Property was purchased for $9,647,650 in
cash. U.S. Can has also agreed to purchase the Chicago, Illinois; Baltimore,
Maryland; and Trussville, Alabama real property and buildings formerly used in
AMS's business (collectively referred to hereinafter as the "Real Property")
for $4,750,000 in cash, subject to satisfaction of certain conditions relating
to title, survey and environmental matters. The purchase price for the
Personal Property and Real Property was established through negotiations
between U.S. Can and Alltrista. AMS was engaged in the business of metal
cutting and decorating, as well as the manufacture, sale and licensure of
certain proprietary products. U.S. Can intends to continue to use the Personal
Property in this business. U.S. Can is currently leasing the Real Property and
operating the former AMS plants.
Prior to the acquisition of these assets, there were no
material relationships between Alltrista and U.S. Can, or any of U.S. Can's
affiliates, directors or officers, or any associate of any such director or
officer. U.S. Can and Alltrista have entered into a long-term tin plate supply
agreement, whereby U.S. Can will supply to Alltrista's home canning products
division its domestic requirements of tin plate. The parties have also entered
into a Sales Agent Agreement, whereby U.S. Can will manufacture and sell on
Alltrista's behalf the inventory of steel, work-in-process and finished goods
on hand as of April 27, 1996, the effective date of the acquisition.
U.S. Can financed the acquisition of the Personal Property and
funded the escrow for the Real Property from amounts available under its Credit
Agreement with Bank of America Illinois, individually and as agent for U.S.
Can's bank lending group, and the other lenders thereunder.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) The Company is evaluating whether AMS is a significant
subsidiary as defined by Rule 1.02(w) of Regulation S-X and whether audited
financial statements of AMS are required to be filed. If it is determined that
AMS is not a significant subsidiary or that audited financial statements are
not required to be filed, the registrant will file an amendment to this Form
8-K to so indicate. Otherwise, audited financial statements of AMS will be
filed by amendment to this Form 8-K. It is impractical for the registrant to
provide such audited financial statements of AMS at the date of this filing. In
either case, it is anticipated that the amendment to this Form 8-K will be
filed within 60 days of the filing of this Form 8-K.
(b) The Company is evaluating whether AMS is a significant
subsidiary as defined by Rule 1.02(w) of Regulation S-X and whether pro forma
information is required to be filed. If it is determined that AMS is not a
significant subsidiary or that pro forma information is not required to be
filed, the registrant will file an amendment to this Form 8-K to so indicate.
Otherwise, pro forma information will be filed by amendment to this Form 8-K.
It is impractical for the registrant to provide such pro forma information at
the date of this filing. In either case, it is anticipated that the amendment
to this Form 8-K will be filed within 60 days of the filing of this Form 8-K.
2
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(c) Exhibits
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Exhibit
Number Description of Document
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2.1 Asset Purchase Agreement, between U.S. Can and Alltrista, dated as of April 29,
1996, together with a list briefly identifying the contents of all omitted
schedules
20.1 Press release of U.S. Can Corporation, issued April 29, 1996, announcing the
acquisition of certain AMS assets by U.S. Can
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The registrant agrees to furnish supplementally a copy of any
omitted schedule to the Asset Purchase Agreement to the Securities and Exchange
Commission upon request.
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
U.S. CAN CORPORATION
Date: May 14, 1996 By /s/ Timothy W. Stonich
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Timothy W. Stonich
Executive Vice President--Finance,
Chief Financial Officer and Secretary
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
UNITED STATES CAN COMPANY
Date: May 14, 1996 By /s/ Timothy W. Stonich
-------------------------------------
Timothy W. Stonich
Executive Vice President--Finance,
Chief Financial Officer and Secretary
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EXHIBIT INDEX
Exhibit Sequential
Number Description of Exhibit Page Number
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2.1 Asset Purchase Agreement
20.1 U.S. Can Corporation Press Release
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EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
UNITED STATES CAN COMPANY
AND
ALLTRISTA CORPORATION
APRIL 29, 1996
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of April 29, 1996 (the
"Agreement"), by and between Alltrista Corporation, an Indiana corporation
("Alltrista"), and United States Can Company, a Delaware corporation ("U.S.
Can").
WITNESSETH:
WHEREAS, Alltrista Metal Services, a division of Alltrista ("AMS"), is
engaged in the business of metal cutting and decorating, as well as the
manufacture, sale and licensure of certain proprietary products (the "Metal
Services Business"); and
WHEREAS, Alltrista desires to sell to U.S. Can, and U.S. Can desires
to purchase from Alltrista, in accordance with the terms and subject to the
conditions of this Agreement, certain assets and rights of Alltrista related to
the Metal Services Business, as more fully described hereinafter;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and in reliance upon the representations and
warranties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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ARTICLE I
TERMS OF PURCHASE AND SALE
1.1 Purchase and Sale. Except as otherwise provided in
Section 1.2 hereof, subject to the terms and conditions of this Agreement, on
the Closing Date (as defined herein), Alltrista hereby sells, assigns and
transfers to U.S. Can, or causes to be sold, assigned and transferred to U.S.
Can, and U.S. Can hereby purchases from Alltrista, all of the following assets
wherever located:
(a) all right, title and interest of Alltrista in and to all of the
machinery and equipment of Alltrista used exclusively in the Metal Services
Business as identified on Schedule 1.1(a) hereto; and
(b) all right, title and interest of Alltrista in and to all of the
patents, trademarks and other intellectual property of Alltrista used
exclusively in the Metal Services Business as identified on Schedule 1.1(b)
hereto;
(c) all right, title and interest of Alltrista in and to all of the
coatings and inks of Alltrista used exclusively in the Metal Services Business;
and
(d) all books and records of Alltrista relating to the Metal Services
Business (collectively, the "Assets").
1.2 Excluded Assets. Anything in Section 1.1 hereof to
the contrary notwithstanding, there shall be excluded from the Assets to be
transferred to U.S. Can hereunder: (i) all land, buildings, intellectual
property and equipment related to the Plastisol business of Alltrista described
on Schedule 1.2 hereof ("Plastisol Business"), (ii) Alltrista's induction
curing
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intellectual property described on Schedule 1.2 hereof, (iii) any cash or cash
equivalents of Alltrista (including marketable securities) on hand or in bank
accounts, (iv) any accounts or notes receivable of Alltrista, (v) all inventory
of the Metal Services Business consisting of raw materials, other than coatings
and inks, work-in-process and finished goods, or (vi) any other assets or
rights of Alltrista not described in Section 1.1 hereof.
1.3 Time and Place of Closing. Subject to the terms and
conditions of this Agreement, the purchase and sale of the Assets and the
consummation of the other transactions contemplated hereby (the "Closing")
shall take place simultaneously with the execution of this Agreement at the
offices of Ross & Hardies, 150 North Michigan Avenue, Chicago, Illinois, at
9:00 a.m. on April 29, 1996, or at such other place or time as the parties may
agree upon (the "Closing Date"). U.S. Can shall be deemed to own the Assets,
and the Closing shall be deemed effective, as of 12:01 a.m., Chicago time, on
April 27, 1996 (the "Effective Time"). If and to the extent there is any loss
in respect of the assets, properties, employees, operations or business of AMS
from the Effective Time to 12:00 noon, Chicago time, on the Closing Date,
Alltrista will indemnify and hold U.S. Can harmless from and against all costs,
liabilities, expenses and damages, arising out of or related to such loss. At
the Closing, Alltrista and U.S. Can shall deliver such certificates, opinions,
instruments, and other documents to be delivered by each such party as set
forth in Article VII.
1.4 Purchase Price.
1.4.1 Amount of Purchase Price. The aggregate purchase price
for the Assets shall be $9,647,650 (the "Purchase Price").
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1.4.2 Payment of Purchase Price. The Purchase Price shall
be paid by U.S. Can at the Closing by wire transfer of immediately available
funds to an account(s) designated by Alltrista in a written instruction to U.S.
Can provided not less than two business days prior to the Closing Date.
1.5 Assumption of Liabilities. Subject to the terms and
conditions of this Agreement, U.S. Can shall assume only those liabilities and
obligations of Alltrista specifically identified on Schedule 1.5 attached
hereto and those obligations under the Collective Bargaining Agreements
specified in Section 1.5.1 hereof (collectively, the "Assumed Liabilities").
At the Effective Time, U.S. Can shall assume and shall thereafter discharge the
Assumed Liabilities. It is expressly understood and agreed by the parties that
U.S. Can shall not have any successor liability for labor, pension, tax,
environmental or other claims, unless and solely to the extent any such claim
constitutes or is included within an Assumed Liability.
If and to the extent U.S. Can terminates any Transferred
Employee after the Effective Time, U.S. Can will be solely responsible for any
claims or causes of action based solely on U.S. Can's actions or omissions with
respect to any such employee. U.S. Can will also be responsible for workers'
compensation claims by Transferred Employees based solely on occurrences, or
the part of any continuous or repetitive injuries, occurring after the
Effective Time.
1.5.1 Assumption of Collective Bargaining Agreements. At
the Effective Time, and except as otherwise provided in this Agreement, U.S.
Can shall assume all obligations and liabilities of Alltrista under, and become
the employer with respect to, the following collective bargaining agreements:
(i) Articles of Agreement between Alltrista Metal Services Company
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division of Alltrista Corporation, 4100 West 42nd Place, Chicago, Illinois
60632 and the Chicago Local No. 458-3M Graphic Communications International
Union; (ii) the Labor Agreement Between Alltrista Metal Services Company
division of Alltrista Corporation, 4100 West 42nd Place, Chicago, Illinois
60632-3995 and Local No. 570 for the United Steelworkers of America, AFL-CIO;
and (iii) the Labor Agreement Between Alltrista Metal Services Company, 901
West Ostend Street, Baltimore, Maryland 21230 and Local 582, Graphic
Communications International Union, 3100 East Monument Street, Baltimore,
Maryland 21205 (collectively, the "Collective Bargaining Agreements").
Notwithstanding the foregoing, U.S. Can's assumption shall only apply with
respect to obligations and liabilities arising or occurring after the Effective
Time. U.S. Can shall honor the union represented employees' years of service
with AMS for all purposes of seniority under the Collective Bargaining
Agreements.
1.6 Employees. All employees of Alltrista in the Metal
Services Business whose employment is affected by this Agreement (the
"Transferred Employees"), as more specifically set forth on Schedule 1.6, will
no longer be employees of Alltrista after the Effective Time and shall have
their employment with U.S. Can commence as of the Effective Time, except as
otherwise provided for herein.
1.7 Accounts Receivable. U.S. Can shall use commercially
reasonable efforts to assist Alltrista in the collection of Alltrista's unpaid
accounts receivable relating solely to the Metal Services Business for a
continuous period not to exceed one year from the Closing Date. By way of
example and not limitation, U.S. Can will, at Alltrista's request, employ phone
calls and follow-up efforts to collect such accounts. U.S. Can shall maintain
written records with respect to collection of such accounts and Alltrista shall
be entitled to review such records and all
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information in U.S. Can's possession respecting such accounts at reasonable
intervals and during U.S. Can's normal business hours. U.S. Can shall also
establish appropriate procedures by which payments received by U.S. Can on
accounts receivables can be identified as for the account of Alltrista or for
the account of U.S. Can. For any payments received by U.S. Can on accounts
receivable due and owing from a joint customer of U.S. Can and Alltrista, U.S.
Can shall treat such payments as being made for the account of and belonging to
Alltrista if (i) such payment is identified with an Alltrista invoice or (ii)
such payment carries no Alltrista or U.S. Can invoice. If the payment is
identified with a U.S. Can invoice, such payment shall remain the property of
U.S. Can.
U.S. Can shall cooperate with Alltrista in order to provide that any
payments on accounts receivable of Alltrista shall be made directly to
Alltrista at established Alltrista bank accounts or post office boxes as
specified by Alltrista to U.S. Can or to customers of Alltrista. In the event
U.S. Can shall inadvertently collect an account receivable due and owing to
Alltrista, U.S. Can shall hold such funds in trust for Alltrista and shall pay
such funds to Alltrista promptly in cash or other form of payment specified by
Alltrista. In the event Alltrista shall inadvertently collect an account
receivable due and owing to U.S. Can, Alltrista shall hold such funds in trust
for U.S. Can and shall pay such funds to U.S. Can promptly in cash or other
form of payment specified by U.S. Can.
U.S. Can shall not have the authority to settle or compromise
Alltrista's accounts receivable for less than the full amount of such accounts
receivable without the prior written consent of Alltrista (which shall not be
unreasonably withheld or delayed). U.S. Can shall bear its internal costs of
assistance under this Section 1.7. Alltrista shall bear all external
collection
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costs for such receivables; provided, however, that U.S. Can shall not incur
any external collection costs for such receivables without the prior written
consent of Alltrista.
For purposes of credit policy administration by U.S. Can, including
but not limited to credit limits for joint customers of Alltrista and U.S. Can,
the outstanding credit balances of Alltrista customers as of the Closing Date
shall be aggregated with U.S. Can's credit balances.
1.8 Allocation of Purchase Price. Seller and U.S. Can
shall allocate the Purchase Price as provided in Schedule 1.8 hereto (the
"Purchase Price Allocation"). The aggregate valuations and allocation properly
reflect the fair market value of the Assets and the consideration paid for each
pursuant to this Agreement. Alltrista and U.S. Can shall report, or cause to
be reported, the purchase and sale of the Assets for federal income tax
purposes pursuant to Section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"), on a timely basis, in accordance with the Purchase Price
Allocation and to give the other prompt written notice of any assertion or
claim by the Internal Revenue Service that the Purchase Price Allocation is
incorrect or is otherwise unacceptable for federal income tax purposes.
Alltrista and U.S. Can shall also file on a timely basis any amendments to such
report required to be filed as a result of any adjustment in the Purchase Price
Allocation. Each party agrees to act in accordance with such Purchase Price
Allocation in the course of any tax audit, tax review or tax litigation
concerning such party and relating thereto. Neither Alltrista nor U.S. Can
will assert, or permit to be asserted, that the Purchase Price Allocation was
not separately bargained for at arm's length and in good faith.
The consideration to be paid for the real property owned by Alltrista
and utilized in the Metal Services Business shall be as set forth in the
Purchase and Lease Agreement, attached
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hereto as Exhibit 7.3, which also describes in detail the real property to be
leased to U.S. Can (the "Real Estate").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ALLTRISTA
As of the date hereof, Alltrista represents and warrants to U.S. Can
as follows (for purposes of this Article II, the phrase "to Alltrista's
knowledge," the words "know" or "aware," or words of similar import shall mean
the collective knowledge of the key employees of Alltrista, including but not
limited to the key employees of AMS, and the defined term "Assets" shall be
deemed to include the Real Estate):
2.1 Organization and Qualification. Alltrista is a
corporation duly organized and validly existing under the laws of the State of
Indiana and has the corporate power and authority to enter into this Agreement,
the Tin Plate Purchase Agreement, the Technology License Agreement, the Escrow
Trust Agreement, the Sales Agent Agreement and the Purchase and Lease Agreement
to be entered into in connection herewith (the Tin Plate Purchase Agreement,
the Technology License Agreement, the Escrow Trust Agreement, the Sales Agent
Agreement and the Purchase and Lease Agreement collectively referred to as the
"Related Agreements"), to consummate the transactions contemplated hereby and
thereby, to own and lease the properties and other assets it presently owns or
leases and to carry on its business as presently conducted. Alltrista is duly
licensed or qualified to do business as a foreign corporation, and is in good
standing, in every jurisdiction in which it is required to be so licensed or
qualified.
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2.2 Authority. Alltrista has full power, capacity and
authority (corporate or otherwise) to execute and deliver this Agreement and
the Related Agreements, and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the Related
Agreements, and the consummation of the transactions contemplated hereby and
thereby, have been duly and validly authorized by Alltrista, and no other
proceedings (corporate or otherwise) on the part of Alltrista are necessary to
authorize this Agreement or the Related Agreements, or to consummate the
transactions contemplated hereby and thereby. This Agreement and the Related
Agreements have been duly and validly executed and delivered by Alltrista, and
(assuming valid execution and delivery by U.S. Can) constitute legal, valid and
binding agreements of Alltrista.
2.3 Consents and Approvals. Except as set forth in
Schedule 2.3 hereto, there is no authorization, consent, order or approval of,
or notice to or filing with, any individual or entity required to be obtained
or given in order for Alltrista to execute and deliver this Agreement and the
Related Agreements, to consummate the transactions contemplated hereby and
thereby and to fully perform its obligations hereunder and thereunder.
2.4 Absence of Conflicts. The execution, delivery and
performance by Alltrista of this Agreement and the Related Agreements, and the
consummation by Alltrista of the transactions contemplated hereby and thereby,
will not, with or without the giving of notice or lapse of time or both, (i)
violate any provision of law, statute, rule or regulation to which Alltrista is
subject, (ii) violate any order, judgment or decree applicable to Alltrista or
any of the Assets, (iii) conflict with or result in a breach or default under
any term or condition of the Articles of Incorporation or By-Laws of Alltrista,
or any agreement or other instrument to which Alltrista is
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a party or by which it is bound, or to which any of the Assets are subject,
(iv) result in the creation or imposition of any lien, pledge, claim, security
interest or encumbrance of any nature whatsoever on the Assets, or (v) cause,
or to Alltrista's knowledge give any person grounds to cause, the maturity of
any Assumed Liability to be accelerated, or increase any Assumed Liability.
2.5 Financial Statements. Alltrista has previously
delivered to U.S. Can copies of certain AMS financial data, which is attached
hereto as Exhibit 2.5 (collectively, the "Financial Data"). The Financial Data
(i) has been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, is correct and complete in all
material respects and is in accordance with the books and records of Alltrista,
and (ii) presents fairly the financial condition of AMS and the related results
of operations as at the dates and for the periods shown.
2.6 Absence of Undisclosed Liabilities. Except as and to
the extent reflected in the Financial Data or as set forth in Schedule 2.6
hereto, (a) Alltrista (solely with respect to AMS) does not have any
liabilities or obligations, whether accrued, absolute or contingent or whether
due or to become due (including, without limitation, obligations as guarantor),
and (b) Alltrista does not know of any fact, event or occurrence which may give
rise to any liability or obligation, absolute or contingent, of Alltrista
(solely with respect to AMS) or relating to the Assets or the Assumed
Liabilities.
2.7 Absence of Certain Changes or Events. Except for the
transactions contemplated hereby and as set forth in Schedule 2.7 hereto, since
January 31, 1996, there has not been (a) any damage, destruction or casualty
loss to the Assets (not fully repaired or replaced); (b) any material adverse
change in the business, assets, properties, operations, prospects or financial
condition of AMS, or, to Alltrista's knowledge, any fact or condition which
could cause
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such a change; (c) any increase in the rate or terms of compensation payable or
to become payable by Alltrista to the Transferred Employees, or any increase in
the rate or change in the terms of any employment agreement or compensatory
arrangement, or any bonus, pension, insurance or other employee benefit plan,
or any payment or benefit made to or for any such Transferred Employee, other
than in the ordinary course of business consistent with past practices; (d) any
sale, transfer or other disposition of any asset of Alltrista (relating to AMS)
to any party, which was outside the ordinary course of business consistent with
past practices; (e) any termination or waiver of any rights of value to Metal
Services Business; or (f) any agreement, whether in writing or otherwise, to
take any action described in this Section 2.7.
2.8 Real and Personal Property; Title. Schedule 2.8(a)
hereto correctly identifies (i) each lease or rental of real property held or
paid by Alltrista (with respect to AMS); and (ii) each parcel of real property,
and each interest (other than such leases or rentals) in real property, used in
the conduct of the Metal Services Business. Except as set forth in Schedule
2.8(b) hereto, (a) any structures located on the Real Estate described in
Schedule 2.8(a) (the "Improvements") and the use thereof conform in all
material respects with all applicable ordinances, requirements, regulations,
zoning laws, restrictive covenants, conditions or restrictions and do not
encroach on property of others, and are not encroached upon by structures of
others; and (b) no claims, charges or notice of violations have been filed,
served, made, or to Alltrista's knowledge threatened, orally or in writing,
against or relating to the Real Estate, the Improvements or any of the
operations conducted at any such property (currently or, if not fully corrected
or otherwise remedied, in the past) as a result of (i) any violation or alleged
violation
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of any applicable ordinance, requirement, regulation, zoning law, restrictive
covenant, condition or restriction, or (ii) as a result of any encroachment on
the property of others.
Except as and to the extent described in Schedule 2.8(c) hereto,
Alltrista has good and marketable title to, and is in possession of or has
control over, all of the Assets, free and clear of all liabilities, mortgages,
pledges, liens, security interests, claims, judgments, exceptions, charges,
encumbrances and other obligations of every kind and nature. Except as
described in Schedule 2.8(c), none of the Assets is held under any lease or
conditional sales contract. Except as set forth on Schedule 2.8(d), all of
the machinery and equipment included in the Assets and necessary to operate the
Metal Services Business at current production levels is in good working order
or condition, ordinary wear and tear excepted.
2.9 Patents, Trademarks, Etc. Schedule 2.9(a) hereto
contains an accurate and complete description of all domestic and foreign
patents, trademarks, service marks, trademark registrations, logos, trade
names, assumed names, copyrights and copyright registrations and all
applications therefor, presently owned or held by Alltrista or under which
Alltrista owns or holds any license, or in which Alltrista owns or holds any
direct or indirect interest and which relate to the Metal Services Business;
and to Alltrista's knowledge no other intellectual property rights are
necessary for the conduct of the Metal Services Business. No products
manufactured, distributed or sold by AMS, nor any patents, trade secrets,
trademarks, service marks, trademark registrations, logos, trade names,
copyrights or copyright registrations used in the Metal Services Business,
infringe upon any patents, trademarks, copyrights or any other intellectual
property rights of any individual or entity. Except as set forth in Schedule
2.9(b), Alltrista has the sole and exclusive right to use, has the right and
power to sell, and has taken all reasonable measures to
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maintain and protect the patents, trademarks, trademark registrations, service
marks, logos, trade names, assumed names, copyrights and copyright
registrations listed on Schedule 2.9(a); no claims have been asserted by any
individual or entity with respect thereto or challenging or questioning the
validity or effectiveness of any license or agreement with respect thereto,
and, to Alltrista's knowledge, there is no valid basis for any such claim.
Except as set forth in Schedule 2.9(b), upon consummation of the transactions
contemplated hereby, U.S. Can will acquire sole and exclusive right, title and
interest in and to each item described in Schedule 2.9(a) included in the
Assets.
2.10 Insurance. Alltrista keeps the Metal Services
Business insured against loss or damage on usual and customary terms (including
but not limited to coverage amounts) for businesses of the type Alltrista is
engaged in. Attached to Schedule 2.10 hereto are certificates of insurance for
certain insurance maintained by Alltrista with respect to the Metal Services
Business, including but not limited to workers' compensation, product liability
and comprehensive general liability insurance.
2.11 Contracts and Commitments. Except for open purchase
orders and sales orders, and contracts requiring payment(s) of less than $5,000
(individually) and $100,000 (in the aggregate) per year, entered into in the
ordinary course business consistent with past practices, and except as set
forth in Schedule 2.11 or any other Schedule hereto, neither Alltrista nor AMS
is a party to any agreement, contract, guaranty, commitment, restriction or
instrument of any kind relating to the Assets, the Assumed Liabilities or the
Metal Services Business (collectively referred to hereinafter as "Contracts").
Unless indicated on Schedule 2.11, true and complete copies of all Contracts
underlying Assumed Liabilities have been delivered to U.S. Can. True
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and complete copies of all other Contracts listed on Schedule 2.11 or any other
Schedule hereto not within U.S. Can's possession will, within 30 days of
Closing, be delivered to U.S. Can. All assumed Contracts are valid and binding
obligations of Alltrista, enforceable in accordance with their respective
terms, and are in full force and effect; and Alltrista is in compliance
therewith. None of the assumed Contracts is unduly burdensome on the Metal
Services Business or the Assets and none have or will have a material adverse
effect on the Assets or the Metal Services Business. There is no default,
event of default or to Alltrista's knowledge fact, event or occurrence which
(with the giving of notice, passage of time or both) would give rise to a
default or event of default under any of the assumed Contracts. Also set forth
in Schedule 2.11 is a true and complete reproduction of all written warranties
in effect with respect to any products or services sold, distributed, offered,
or licensed by or on behalf of Alltrista in the Metal Services Business.
2.12 Litigation and Administrative Proceedings. Except as
set forth in Schedule 2.12 hereto, there is no claim, action, suit, proceeding
or investigation pending in any court or before any governmental or regulatory
authority or to Alltrista's knowledge threatened against Alltrista (with
respect to the Metal Services Business) or affecting AMS's business or the
Assets, or which seeks to enjoin or obtain damages in respect of the
transactions contemplated hereby or by the Related Agreements. Alltrista does
not know of any basis for any such claim, action, suit, proceeding or
investigation. No claim, action, suit, proceeding or investigation set forth
in Schedule 2.12 could, if adversely decided, have a material adverse effect on
the Metal Services Business or the Assets.
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2.13 Tax Matters.
2.13.1 Definition. For purposes of this Agreement,
"Tax" or "Taxes" means any net income, foreign income, alternative or minimum
tax, withholding, payroll or employment tax, use, excise, sales, real estate,
franchise, personal property or other taxes or fees, penalties, and interest
pertaining to the Assets or AMS' Metal Services Business.
2.13.2 Tax Returns. All Tax returns, reports and
declarations of every kind and nature (collectively, the "Returns") required to
be filed by or on behalf of Alltrista (and relating to AMS) on or before the
Closing Date have been or will be timely filed and such Returns are complete
and accurate and disclose all Taxes (and other charges) required to be paid for
the periods covered thereby.
2.13.3 All Taxes Paid. All Taxes (and other
charges) shown on such Returns or otherwise required to be paid, and any
deficiency assessments, penalties, interest or other charges with respect
thereto, have been paid, and there is otherwise no current liability for any
unpaid Taxes (or other charges) due in connection with such Returns or
otherwise. There are no Tax liens (other than for Taxes not yet due) on any of
the Assets and, to Alltrista's knowledge, no basis exists for the imposition of
any such liens.
2.13.4 Withholding. Alltrista (to the extent
relating to AMS) has withheld from its employees and others (and has or will
timely remit to the appropriate taxing authorities) proper and accurate amounts
for all periods prior to the Closing Date in compliance with all Tax
withholding provisions of applicable federal, state, foreign, local or other
laws (including, without limitation, income, withholding, social security,
employment and other payroll taxes).
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2.13.5 Asset Attributes. None of the Assets (i) is
tax-exempt use property within the meaning of Section 168(h) of the Code, (ii)
directly or indirectly secures any debt the interest on which is tax-exempt
under Section 103(a) of the Code, or (iii) is required to be treated as
property owned by another under any provision of the Code. AMS has no foreign
assets or operations.
2.14 Compliance with Laws. Except as otherwise disclosed
in Schedule 2.14, Alltrista is in compliance in all respects with, in respect
of AMS's operations, real property, machinery, equipment, all other property,
practices and all other aspects of the Metal Services Business, any applicable
law (whether statutory or otherwise), rule, regulation, order, ordinance,
judgment or decree of any governmental authority (federal, state, local or
otherwise) (collectively, "Laws"). Except as set forth on Schedule 2.14, to
Alltrista's knowledge, there are no past violations of any Laws, in respect of
AMS's operations, real property, machinery, equipment, all other property,
practices and all other aspects of the Metal Services Business, which have not
been fully corrected or otherwise remedied. Except as set forth on Schedule
2.14, neither Alltrista nor AMS has received any notification of any failure or
alleged failure to comply with any such Laws.
2.15 Environmental Matters.
(a) Except as otherwise disclosed in Schedule
2.15 hereto, (i) Alltrista and AMS have obtained all Environmental Permits (as
defined herein) that are required with respect to the Metal Services Business,
AMS's operations and properties of Alltrista (with respect to AMS); (ii)
Alltrista (with respect to AMS) and AMS are in compliance with all
Environmental Laws (as defined herein) and the terms and conditions of all
Environmental Permits, and there are
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no known uncured violations by Alltrista (with respect to AMS) or AMS of
Environmental Laws or Environmental Permits; and (iii) neither Alltrista (with
respect to AMS) nor AMS has received any notice from a governmental authority
or third party concerning any present or uncured violation or alleged violation
of, or liability or potential liability arising under, any Environmental Law or
Environmental Permit.
(b) Except as set forth in Schedule 2.15, to
Alltrista's knowledge, there have been no releases of Hazardous Materials on or
to the Real Estate or the soil or groundwater at or beneath the Real Estate,
and there is no condition or any set of facts or circumstances that could give
rise to an Environmental Claim (as defined herein).
(c) For purposes of this Agreement, the following
terms shall have the respective meanings set forth herein:
"Environmental Permit" shall mean any permit,
license, approval or other authorization with respect to the Metal Services
Business or the operation thereof under any applicable Environmental Law (as
defined herein), including but not limited to laws, regulations or other
requirements relating to emissions, discharges or releases of Hazardous
Materials (as defined herein) into ambient air, surface water, groundwater, or
land, or otherwise arising from the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of Hazardous Materials by
Alltrista (with respect to AMS) or AMS, or the employees, representatives,
contractors or actual agents of either of them.
"Environmental Claim" shall mean any action, lawsuit,
claim or proceeding relating to the Metal Services Businesses or the operation
thereof which seeks to impose liability for (i) violation of any Environmental
Law, (ii) release of any Hazardous Materials, (iii) noise,
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(iv) pollution or contamination of the air, surface water, groundwater or land;
(v) solid, gaseous or liquid waste generation, handling, treatment, storage,
disposal or transportation; (vi) exposure to hazardous or toxic substances; or
(vii) the manufacture, processing, distribution in commerce, use (by Alltrista
(with respect to AMS) or AMS, or the employees, representatives, contractors or
actual agents of either of them), or storage (by Alltrista (with respect to
AMS) or AMS, or the employees, representatives, contractors or actual agents of
either of them) of chemical substances. An "Environmental Claim" includes, but
is not limited to, a proceeding to issue, modify or terminate a permit or
license, or to adopt or amend a law or regulation to the extent that such a
proceeding attempts to redress violations of the applicable permit, license,
law or regulation which occurred on or prior to the Effective Time as alleged
by any federal, state or local executive, legislative, judicial, regulatory or
administrative agency, board or authority.
"Hazardous Materials" shall mean the following: (i)
all "hazardous substances," as such term is defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A.
Sec. 9601(14); (ii) all "hazardous wastes," as such term is defined in the
Resource Conservation and Recovery Act, 42 U.S.C.A. Sec. 6903(5); (iii) all
materials that are classified as hazardous or toxic under any Environmental
Law, as defined below; (iv) petroleum products, including but not limited to
gasoline, diesel fuel, fuel oil, crude oil and motor oil, and the constituents
of those products; or (v) medical wastes.
"Environmental Laws" shall mean, without limitation,
the following: the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C.A. Sec. 9601 et seq.); the Resource Conservation and
Recovery Act (42 U.S.C.A. Sec. 6901 et seq.); the Clean Water Act (33 U.S.C.A.
Sec. 1251 et seq.); the Clean Air Act (42 U.S.C.A. Sec. 7401 et
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seq.); the Toxic Substance Control Act (15 U.S.C.A. Sec. 2601 et seq.); the
Occupational Safety and Health Act ( 29 U.S.C. 651 et seq.); and all other
federal, state or local statutes or ordinances pertaining to protection of the
environment, health or safety, and all amendments made to, and regulations
promulgated under, the foregoing laws.
2.16 Employee Benefits.
2.16.1 Plans. Attached hereto as Schedule 2.16 is a
list of all employee benefit plans relating to employee benefits provided to
any Transferred Employee by Alltrista including, without limitation, all plans,
agreements or arrangements relating to deferred compensation, pensions, profit
sharing, retirement income or other benefits, stock purchase, stock ownership
and stock option plans, stock appreciation rights, bonuses, severance
arrangements, health and welfare benefits, insurance benefits and all other
employee benefits or fringe benefits (collectively referred to as the "Plans").
Except as required by the terms of the Collective Bargaining Agreements,
Alltrista (with respect to AMS) does not, nor has it ever, contributed to any
multi-employer plan within the meaning of Section 4001(a)(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), nor is Alltrista
(with respect to AMS) affiliated with any entity such that Alltrista has, or
might have in the future, any multi-employer plan withdrawal liability under
Subtitle E of Part IV of ERISA.
2.16.2 No Liens Arising Under ERISA. No event
(including without limitation any failure or refusal to make a required Plan
contribution or other payment required under ERISA) has occurred which would
give rise to any lien against the Assets as a result of the operation of ERISA,
including without limitation Section 302(f) and 4068 thereof.
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2.17 Licenses and Permits. Alltrista has all governmental
licenses and permits and other governmental authorizations and approvals
required for the conduct of the Metal Services Business as presently conducted
(collectively, "Permits").
2.18 Employment Agreements. Schedule 2.18 hereto is
a list and summary description of all oral or written agreements (other
than Plans and the Collective Bargaining Agreements) with any employee or
independent contractor performing services for AMS or with respect to the
Assets. There have been no claims of default, and there are no facts or
conditions which if continued (or on notice) would result in a default, under
these agreements.
2.19 Discrimination; Occupational Safety; Labor. Except
as disclosed on Schedule 2.19 or any other Schedule hereto, no individual or
entity, including but not limited to any governmental agency, has any claim or
cause of action pending and to Alltrista's knowledge there is no basis for any
claim or cause of action against Alltrista (with respect to AMS) or AMS based
upon any law, regulation or rule relating to discrimination in employment or
employment practices or occupational safety and health standards (including,
without limitation, The Fair Labor Standards Act, as amended, Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 1981 or the Age Discrimination
in Employment Act of 1967, as amended). There is no pending or to Alltrista's
knowledge threatened federal or state equal employment opportunity enforcement
action or labor dispute, strike or work stoppage affecting the Metal Services
Business. Other than the Collective Bargaining Agreements, Alltrista has no
collective bargaining or similar agreements, nor does Alltrista have any
obligation to bargain with any labor organization as the representative of
AMS's employees.
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2.20 Brokers and Finders. Neither Alltrista nor any of
its officers, directors, employees, affiliates, associates or family members
has employed any broker, finder or investment banker, or incurred any liability
for any brokerage fees, commissions or finders' fees in connection with this
Agreement or the transactions contemplated hereby.
2.21 Necessary Assets. The Assets constitute all of the
assets of the nature included within the Assets necessary for the conduct of
the Metal Services Business in the manner and to the extent presently conducted
or conducted with respect to any substantial part of the Metal Services
Business during the 12-month period prior to the Closing Date. There exists no
condition, restriction or reservation affecting the title to the Assets or
Assumed Liabilities which would prevent U.S. Can from occupying or utilizing
the Assets or Assumed Liabilities, or any part thereof, to the same extent that
Alltrista might continue to do if the purchase and sale contemplated hereby did
not occur.
2.22 Books and Records. The books and records of
Alltrista (with respect to AMS) and AMS have been maintained in accordance with
good business and bookkeeping practices, consistent with past practices, and
accurately reflect in all material respects the business, assets, properties,
rights, obligations, liabilities and operations of AMS.
2.23 Government Contracts. Neither Alltrista nor AMS is a
party to any contract relating to AMS, its business or any of the Assets with
any "Government Contract Party." For purposes of this Section 2.23, the term
"Government Contract Party" means any independent or executive agency,
division, subdivision, audit group or procuring office of the federal
government, including any prime contractor of the federal government and any
higher level
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subcontractor of a prime contractor of the federal government, and including
any employees or agents thereof, in each case acting in such capacity.
2.24 Full Disclosure. Alltrista has disclosed in writing
in, or pursuant to, this Agreement all facts material to the Metal Services
Business, the Assets and the Assumed Liabilities. No representation or
warranty made by Alltrista in this Agreement, and no statement contained in the
Schedules hereto or any of the Related Agreements, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements herein or therein not misleading.
2.25 Effect of Certificates. All certificates of
Alltrista or its officers delivered pursuant hereto shall be deemed to be
additional representations and warranties of Alltrista under this Article II.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF U.S. CAN
As of the date hereof, U.S. Can represents and warrants to Alltrista
as follows:
3.1 Organization and Qualification. U.S. Can is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power and authority to
enter into this Agreement and the Related Agreements, and to consummate the
transactions contemplated hereby and thereby.
3.2 Authority. U.S. Can has full power, capacity and
authority to execute and deliver this Agreement and the Related Agreements, and
to consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the Related Agreements, and the consummation
of the transactions contemplated hereby and thereby, have
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been duly and validly authorized by U.S. Can, and no other corporate
proceedings on the part of U.S. Can are necessary to authorize this Agreement
or the Related Agreements, or to consummate the transactions contemplated
hereby and thereby. This Agreement and the Related Agreements have been duly
and validly executed and delivered by U.S. Can and (assuming the valid
execution and delivery of the Agreement and the Related Agreements by
Alltrista) constitute legal, valid and binding agreements of U.S. Can.
3.3 Consents and Approvals. There is no authorization,
consent, order or approval of, or notice to or filing with, any individual or
entity required to be obtained, given or made in order for U.S. Can to
consummate the transactions contemplated hereby and fully perform its
obligations hereunder, except for any authorization, consent, order, approval
or filing previously obtained, given or made.
3.4 Absence of Conflicts. The execution, delivery and
performance by U.S. Can of this Agreement and the Related Agreements, and the
consummation by U.S. Can of the transactions contemplated hereby and thereby
will not, with or without the giving of notice or the lapse of time, or both,
(i) violate any provision of law, statute, rule or regulation to which U.S. Can
is subject, (ii) violate any order, judgment or decree applicable to U.S. Can,
or (iii) conflict with, or result in a breach or default under, any term or
condition of the Certificate of Incorporation or By- Laws of U.S. Can or any
agreement or other instrument to which U.S. Can is a party or by which U.S. Can
is bound.
3.5 Litigation and Administrative Proceedings. There is
no claim, action, suit, proceeding or investigation in any court or before any
governmental or regulatory authority pending or overtly, threatened against or
affecting U.S. Can which seeks to enjoin or obtain
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damages in respect of the transactions contemplated hereby or by the Related
Agreements. There is no known basis for any such claim, action, suit,
proceeding or investigation.
3.6 Brokers and Finders. Neither U.S. Can nor any of its
officers, directors, employees, affiliates or associates has employed any
broker, finder or investment banker, or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with this Agreement
or the transactions contemplated by this Agreement.
3.7 Effect of Certificates. All certificates of U.S. Can
or its officers delivered pursuant hereto shall be deemed to be additional
representations and warranties of U.S. Can under this Article III.
ARTICLE IV
COVENANTS OF ALLTRISTA
Alltrista covenants to U.S. Can as follows:
4.1 Consents and Approvals. Alltrista agrees to use all
reasonable efforts to make all registrations, filings and applications, and
give all notices and obtain all governmental or other consents, approvals,
orders, qualifications and waivers necessary for the consummation of the
transactions contemplated by, or the performance by Alltrista of its
obligations under, this Agreement and the Related Agreements, or which U.S. Can
may otherwise reasonably request.
4.2 Non-Competition. For a period of five (5) years from
and after the Closing Date, Alltrista shall not directly or indirectly (through
any division, subsidiary, joint venture or otherwise) engage in, or have any
interest in (excluding only passive investment interests of less than five
percent (5%) in corporations that report under the Securities Exchange Act of
1934, as amended) a company or business engaged in, the tin plate cutting, tin
plate decorating and/or tin
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mill products service center businesses; provided, however, that Alltrista
shall not be prohibited from engaging in activities after the Closing relating
to the sale of any Seller Pre-Closing Inventory (as defined in the Sales Agent
Agreement) or coating or decorating tin plate in its businesses (other than
Metal Services Business) as presently conducted or as specifically permitted by
the Tin Plate Purchase Agreement.
4.3 Tax Matters. Except as otherwise provided in Section
5.3 hereof, Alltrista will timely pay or satisfy all Taxes that may be due as a
result of the conduct of the Metal Services Business until the Effective Time,
or the sale of the Assets hereunder.
4.4 Post-Closing Access to Information. For a period of
seven years after the Closing (or such shorter period as is consistent with
customary record retention policies), Alltrista shall not dispose of any books,
records, documents or information in its possession or control relating in
whole or part to the Metal Services Business, the Assets or the Assumed
Liabilities without first giving notice to U.S. Can and permitting U.S. Can to
copy those portions of such books and records which U.S. Can may select, which
selection must be made within a reasonable time, excluding any confidential
information regarding Alltrista's businesses, other than the Metal Services
Business. During such seven-year period, Alltrista shall permit U.S. Can, upon
reasonable notice and during Alltrista's business hours, to examine and make
copies of, at U.S. Can's expense, such books, records, documents or information
for any reasonable purpose, including but not limited to any litigation
commenced against U.S. Can or any affiliate of U.S. Can, the preparation of
income or other Tax returns and any administrative or regulatory proceeding or
action.
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4.5 Discontinuation of Use. Upon Closing, Alltrista will
discontinue use of the name "Alltrista Metal Services" or any confusingly
similar name in the Metal Services Business, except for purposes of collecting
Alltrista's unpaid AMS accounts receivable, the sale of inventory pursuant to
the Sales Agent Agreement and winding up AMS's business.
4.6 Further Assurances. After the Closing, Alltrista
will execute and deliver all additional or different documents and take such
actions as U.S. Can shall reasonably request in order to more fully consummate
the transactions contemplated hereby or by the Related Agreements. Alltrista
shall use all reasonable efforts to fulfill or obtain the fulfillment of the
conditions of U.S. Can's obligations hereunder.
4.7 Employee Benefits. Alltrista will provide any
employee benefit obligations which have accrued for Transferred Employees prior
to the Effective Time under employee pension or welfare benefit plans it
sponsors ("Alltrista Plans") and shall hold U.S. Can harmless from any claims
for benefits made under Alltrista Plans by Transferred Employees. All accrued
benefits of Transferred Employees under any qualified retirement plan of
Alltrista will become nonforfeitable (100% vested) as of the Closing Date. Any
employees whose employment with Alltrista is terminated prior to the Closing
Date shall have their rights to any employee benefits under Alltrista Plans
determined exclusively with respect to those plans. Accrued and unused
vacation pay of the Transferred Employees as of the Effective Time has been
reflected as a credit to the Purchase Price and the vacation reserve amount
computed by Alltrista is an Assumed Liability under Section 1.5. To the extent
that the vacation reserve is insufficient to satisfy the actual accrued and
unused vacation pay of the Transferred Employees as of the Effective Time,
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Alltrista will indemnify U.S. Can against 100% of the amount by which the
vacation reserve is deficient.
4.8 Consents. Alltrista will use all reasonable efforts
to obtain the express written consent of all third parties necessary to assign
any Contracts included in the Assumed Liabilities, including but not limited to
licensees of its "Micro Sphere Sheet Waxer" technology, within 30 days of
Closing to the assignment by Alltrista and assumption by U.S. Can of all such
Contracts. If any third party withholds consent or Alltrista receives any
royalties or payments on account of such Contracts after the Closing Date,
Alltrista will hold all such amounts in trust for U.S. Can and promptly pay the
same to U.S. Can. Alltrista will indemnify and hold U.S. Can harmless from and
against any loss suffered by U.S. Can as a result of Alltrista's failure to
obtain any necessary consent to the assignment of such Contracts.
ARTICLE V
COVENANTS OF U.S. CAN
U.S. Can covenants to Alltrista as follows:
5.1 Consents and Approvals. U.S. Can agrees to use all
reasonable efforts to make all registrations, filings and applications, and
give all notices and obtain all governmental or other consents, approvals,
orders, qualifications and waivers necessary for the consummation of the
transactions contemplated by, or the performance by U.S. Can of its obligations
under, this Agreement or the Related Agreements, or which Alltrista may
otherwise reasonably request.
5.2 Retention of Records. For a period of seven years
after the Closing (or such shorter period as is consistent with customary
record retention policies), U.S. Can shall not dispose of any books, records,
documents or information in its possession or control relating in
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whole or part to the Metal Services Business, the Assets or the Assumed
Liabilities without first giving notice to Alltrista and permitting Alltrista
to copy those portions of such books and records which Alltrista may select,
which selection must be made within a reasonable time, excluding any
confidential information regarding U.S. Can's businesses, other than the Metal
Services Business. During such seven-year period, U.S. Can shall permit
Alltrista, upon reasonable notice and during U.S. Can's business hours, to
examine and make copies of, at Alltrista's expense, such books, records,
documents or information for any reasonable purpose, including but not limited
to any litigation commenced against Alltrista or any affiliate of Alltrista,
the preparation of income or other Tax returns and any administrative or
regulatory proceeding or action.
5.3 Transfer Costs. The first $70,000.00 of transfer
taxes, survey costs, title fees and escrow fees associated with the purchase
and sale of Real Estate under and pursuant to the Escrow Agreement shall be
borne and paid by U.S. Can; the remainder shall be paid by Alltrista. All
other sales or use taxes on the transfer of Assets and recording or filing fees
necessary to transfer title to any of the Assets shall be borne and paid by
U.S. Can.
5.4 Employee Matters.
5.4.1 Union Pension Plan. U.S. Can shall comply
with the terms of the Collective Bargaining Agreements by establishing a
defined benefit pension plan which contains all of the material terms and
provides the level of benefits called for in the applicable Collective
Bargaining Agreements for Transferred Employees who are covered by those
agreements unless the parties thereto mutually agree otherwise. U.S. Can may
satisfy its obligation under the preceding sentence through the appropriate
modifications to any defined benefit pension plan which it already maintains.
U.S. Can shall credit such Transferred Employees under its defined
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benefit plan with the amount of "Benefit Service" and "Vesting Service," as
defined in the Alltrista Corporation Consolidated Hourly Pension Plan (the
"Alltrista Plan"), that such Transferred Employees were credited with under the
Alltrista Plan as of the Effective Time. In determining the amount of pension
and/or ancillary benefits to be provided under its defined benefit plan for
such Transferred Employees, U.S. Can shall be allowed to offset such amount by
the amount of any such benefits to be provided the Transferred Employees under
the Alltrista Plan, determined as of the Effective Time. U.S. Can will provide
the necessary level of benefits to Transferred Employees under its defined
benefit plan such that the total pension and/or ancillary benefits Transferred
Employees will receive will be equivalent to the benefits such Transferred
Employees would have received under the Alltrista Plan had the Closing not
occurred.
5.4.2 Salaried Pension Plan. U.S. Can shall provide
a qualified retirement plan with a cash or deferred feature that complies with
Code Section 401(k) for the benefit of all Transferred Employees who are
salaried employees or who are not subject to a Collective Bargaining Agreement.
Such Transferred Employees shall participate as of their date of hire by U.S.
Can.
5.4.3 Employee Welfare Benefits. U.S. Can will
provide Transferred Employees who are represented under a Collective Bargaining
Agreement the non-pension (i.e., welfare) benefits called for under the terms
of the applicable Collective Bargaining Agreement. U.S. Can will provide
Transferred Employees who are not represented under a Collective Bargaining
Agreement a package of employee welfare benefits substantially similar to those
currently being provided to non-bargaining unit employees of U.S. Can with
comparable levels
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of work responsibilities as those such Transferred Employees will perform at
U.S. Can. In particular, U.S. Can will provide Transferred Employees who are
not represented under a Collective Bargaining Agreement with the following
vacation benefits: (1) any vacation benefits accrued and unused and reflected
in the vacation reserve assumed by U.S. Can; and (2) vacation benefits for the
remainder of 1996 and future years determined under the applicable U.S. Can
vacation pay policy, as in effect from time to time, and taking into account
each such Transferred Employee's service with U.S. Can; provided, however, that
the vacation benefits for the remainder of 1996 and each year thereafter of any
such Transferred Employee under the applicable U.S. Can vacation policy shall
not be less than the vacation benefits such Transferred Employee was entitled
to receive as of January 1, 1996 for the year 1996 under the applicable
Alltrista vacation policy in effect as of such date (after taking into account,
for the year 1996 only, any vacation benefits received by such employee from
January 1, 1996 to the Effective Time).
5.4.4 Compensation. U.S. Can shall abide by the
terms of the applicable Collective Bargaining Agreements concerning the
compensation of Transferred Employees who are represented thereunder. U.S. Can
will provide each Transferred Employee who is not covered by a Collective
Bargaining Agreement with a package of initial compensation substantially
similar to the compensation provided to such Transferred Employee by Alltrista
pre-Closing assuming comparable work responsibilities; provided, however, that
U.S. Can is not hereby assuming any obligation to maintain such level of
compensation. Accrued and unused vacation pay of the Transferred Employees as
of the Effective Time has been reflected as a credit to the Purchase Price.
Any accrued but unused vacation days of any Transferred Employee covered by the
Collective Bargaining Agreements and included in the vacation reserve as of the
Effective Time
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shall transfer with the affected employees and shall be available to them as
employees of U.S. Can. U.S. Can shall hold Alltrista harmless from any claims
made by Transferred Employees for accrued and unused vacation benefits as of
the Effective Time included in the vacation reserve.
5.4.5 WARN Act. U.S. Can shall fully comply with
any obligations imposed by the Worker Adjustment and Retraining Notification
Act ("WARN") as a result of any "mass lay-offs" or any plant closing if it
results in 50 or more employees suffering an "employment loss" at the site
during any 30-day period after the Effective Time, if and to the extent
required by law or regulation.
5.4.6 Employees on Disability. U.S. Can shall hire
all Transferred Employees who are on short-term disability under the relevant
plans of Alltrista as of the Effective Time, provided any such individuals
report to work at U.S. Can, with a full medical release to perform all of their
job responsibilities, within six (6) months of the date their short-term
disability commenced. Any Transferred Employee on long-term disability under
any such plan of Alltrista as of the Effective Time shall not be hired by U.S.
Can and shall remain the responsibility of Alltrista. Alltrista shall provide
long-term disability benefits to any individual on short-term disability as of
the Effective Time who does not return to work with the required release within
six (6) months of the date their short-term disability commenced.
5.4.7 Employment Intent. U.S. Can shall offer
employment to all Transferred Employees other than the employees of the
Plastisol Business or as set forth on Schedule 5.4.7 consistent with the terms
and conditions set forth in this Agreement; provided, however, that U.S. Can
shall not as a result be making any assurances or promises of any kind to any
Transferred Employees of employment for any fixed period of time.
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5.4.8 Rollovers. U.S. Can will permit the
Transferred Employees to roll over any distributions which they receive from a
tax-qualified retirement plan sponsored by Alltrista to a tax-qualified
retirement plan sponsored by U.S. Can, provided that (1) such distributions are
"eligible rollover distributions" within the meaning of Section 402(c)(4) of
the Code; (2) Alltrista provides U.S. Can with a copy of a favorable
determination letter issued by the Internal Revenue Service with respect to the
plan making such distribution, which letter covers all amendments to such plan
other than amendments which do not impact such plan's tax qualification; and
(3) Alltrista represents in writing to U.S. Can that such plan is tax-qualified
as to its operation as well as to its form. For purposes of Article VIII of
this Agreement regarding indemnification, any representations made by Alltrista
pursuant to clause (3) of the preceding sentence shall be treated as if they
were made in Article II of this Agreement.
5.4.9 Severance. U.S. Can will pay one week's
severance for each full year worked, but not more than 26 years' service, to
each Transferred Employee not covered by a Collective Bargaining Agreement and,
in making such calculation, will give credit for years of service with
Alltrista, as well as any predecessor companies for which Alltrista provided
such Transferred Employees credit.
5.5 Alltrista Name. U.S. Can shall not use the name
"Alltrista" or "Alltrista Metal Services" for any purpose at any time unless
under and pursuant to the Sales Agent Agreement or this Agreement.
5.6 Further Assurances. After the Closing, U.S. Can will
execute and deliver all additional or different documents and take such actions
as Alltrista shall reasonably request in order to more fully consummate the
transactions contemplated hereby or by the Related
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Agreements. U.S. Can shall use all reasonable efforts to fulfill or obtain the
fulfillment of the conditions of Alltrista's obligations hereunder.
ARTICLE VI
MUTUAL COVENANTS
Each of the parties hereto covenants to the other party as
follows:
6.1 Confidentiality. Except as otherwise required by law
or in connection with judicial, administrative or arbitration proceedings, and
except for public announcements concerning the transactions contemplated hereby
on the advice of counsel, each of the parties agrees not to (i) disclose any
confidential or proprietary information of the other party, or the terms of
this Agreement (collectively, the "Confidential Information"), to any
individual or entity (other than its directors, officers, employees, agents and
representatives with a need to know such Confidential Information) or (ii) use
any Confidential Information of the other party for any purpose other than
consummating the transactions contemplated hereby and, with respect to U.S.
Can, conducting its business after the Closing.
6.2 Tax Treatment.
6.2.1 Tax Cooperation. Alltrista and U.S. Can will
use all reasonable efforts to cooperate with one another as appropriate for all
relevant tax purposes relating to the transactions contemplated by this
Agreement, and report consistently for tax purposes the transactions provided
for in this Agreement, and treat all subsequent related transactions or items,
in a manner consistent in all respects with the terms and provisions of this
Agreement. Alltrista and U.S. Can agree to furnish or cause to be furnished to
each other, upon request, as promptly
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as practicable, such information and assistance relating to the Assets as is
reasonably necessary for the filing of any Tax return, declaration or report,
the making of any election related to Taxes, the preparation for any audit by
any taxing authority, or the prosecution or defense of any claim, suit or
proceeding with respect to Taxes. Alltrista and U.S. Can shall cooperate
fully, as and to the extent reasonably requested by the other party, in the
conduct of any audit, litigation or other proceeding with respect to Taxes to
the extent relevant to the Assets; provided, however, that the party whose
Taxes are at issue shall pay the reasonable out-of-pocket expenses of the other
party in rendering such cooperation.
6.2.2 Allocation of Taxes. All personal property taxes, real
property taxes, similar ad valorem obligations, and special assessments imposed
with respect to the Assets or Real Estate for a Tax period which includes (but
does not end on) the Closing Date shall be apportioned between Alltrista and
U.S. Can, with Alltrista bearing a portion of such Taxes based on the number of
days in the Tax period prior to the Closing Date and U.S. Can bearing a portion
of such Taxes based on the number of days in the Tax period on and after the
Closing Date.
6.2.3 Payment of Taxes. Taxes described in Section 6.2.2
shall initially be timely paid as provided by applicable law and the paying
party shall be entitled to reimbursement from the non-paying party in
accordance with Section 6.2.2. The paying party shall promptly notify the
non-paying party of the payment of such Tax and the non-paying party shall make
such reimbursement within ten (10) business days after it receives such notice.
Any payment not made within such time shall bear interest at the rate per annum
determined, from time to time, under the provisions of Section 6621(a)(2) of
the Internal Revenue Code for each day until paid.
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6.3 Health Care Coverage. U.S. Can agrees that all
Transferred Employees (other than collective bargaining unit employees covered
by a health plan pursuant to the Collective Bargaining Agreements) or any other
AMS employee who becomes employed by U.S. Can at the Effective Time, or
thereafter, and their eligible dependents, shall become covered under U.S.
Can's health care plan (providing medical and dental coverage), subject to the
normal limitations in such plan (except that there shall be no limitation on
pre-existing conditions to the extent such conditions are covered by
Alltrista's health or dental plan(s)), effective at the Effective Time or, if
later, as of their date of hire by U.S. Can. U.S. Can shall make "COBRA"
health care continuation coverage under Sections 601 et seq. of ERISA available
to all Transferred Employees who become employed by U.S. Can pursuant to the
preceding sentence (other than collective bargaining unit employees covered by
a health plan pursuant to the Collective Bargaining Agreements), and their
eligible dependents, with respect to which "qualifying events" (as defined in
Section 603 of ERISA) occur after such persons become covered under U.S. Can's
health care plan. Except as provided in the preceding sentence, U.S. Can shall
have no obligation to make "COBRA" health care continuation coverage available
to any current or former employees of Alltrista or AMS, or to their eligible
dependents. At Closing or promptly thereafter, Alltrista will deliver to U.S.
Can a schedule of each Transferred Employee, his/her dependents, social
security numbers and any amounts applied from January 1, 1996 to the Closing
Date to satisfy the 1996 deductible under the applicable Alltrista health care
plan. Once U.S. Can has received this information, and after a reasonable time
to process such data, U.S. Can will give credit to the Transferred Employees
for their deductibles.
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6.4 Mutual Cooperation. Alltrista and U.S. Can agree to
cooperate after the Closing Date to the fullest extent reasonably necessary to
consummate fully the transactions contemplated hereby and by the Related
Agreements, including but not limited to (i) coordinate the compensation and
employee benefits matters set forth in this Agreement, (ii) account for
transactions hereunder and under the Related Agreements (including but not
limited to the processing of the parties' respective accounts receivable and
payable) and (iii) administer and pay, as appropriate, workers' compensation
claims of Transferred Employees. For this purpose, Alltrista will be provided
access to the plants included in the Metal Services Business during U.S. Can's
normal business hours and at reasonable intervals.
6.5 The parties intend that the combined benefits from the Alltrista
Corporation Consolidated Hourly Pension Plan and U.S. Can defined benefit
pension plan for such Transferred Employees will be equivalent to the benefits
such Transferred Employees would have received under the Alltrista Corporation
Consolidated Hourly Pension Plan had the Closing not occurred.
ARTICLE VII
CLOSING DELIVERIES
The following deliveries shall be made at the Closing and are
conditions precedent to Closing:
7.1 Legal Opinions.
7.1.1 Legal Opinion of Alltrista. Alltrista shall
deliver to U.S. Can the written opinion of Bingham Summers Welsh & Spilman,
counsel to Alltrista, in substantially the form attached hereto as Exhibit
7.1.1, and in substance satisfactory to U.S. Can and its counsel.
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7.1.2 Legal Opinion of U.S. Can. U.S. Can shall
deliver to Alltrista the written opinion of Ross & Hardies, counsel to U.S.
Can, in substantially the form attached hereto as Exhibit 7.1.2, and in
substance satisfactory to Alltrista and its counsel.
7.2 Consents. Alltrista will deliver to U.S. Can all
consents and approvals required in connection with the performance by Alltrista
and AMS of their respective obligations under this Agreement and the Related
Agreements, and the consummation by Alltrista and AMS of the transactions
contemplated hereby and thereby.
7.3 Purchase and Lease Agreement. Alltrista and U.S. Can
shall have executed and delivered to one another a Purchase and Lease
Agreement, in substantially the form attached hereto as Exhibit 7.3.
7.4 Tin Plate Purchase Agreement. Alltrista and U.S. Can
shall have executed and delivered to one another a Tin Plate Purchase
Agreement, in substantially the form attached hereto as Exhibit 7.4.
7.5 Sales Agent Agreement. Alltrista and U.S. Can shall
have executed and delivered to one another a Sales Agent Agreement, in
substantially the form attached hereto as Exhibit 7.5.
7.6 Technology License. Alltrista and U.S. Can will
execute and deliver a Technology License Agreement, in substantially the form
attached hereto as Exhibit 7.6.
7.7 Closing Certificates. Alltrista and U.S. Can shall
each deliver, or cause to be delivered, to the other party such certificates of
their respective officers as Alltrista or U.S. Can, as the case may be, deems
appropriate.
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7.8 Instruments of Transfer. Alltrista shall duly
execute and deliver the following bills of sale and other instruments of
conveyance, evidencing the transfer and assignment of the Assets and the
Assumed Liabilities:
(a) Bills of sale for all tangible personal property
included in the Assets;
(b) Assignments of all certificates, permits, licenses,
approvals or authorizations issued by any governmental authority that
are assignable;
(c) Assignments of all intangible property, including but
not limited to assignments of all patents included in the Assets in a
form suitable for filing with the U.S. Patent and Trademark Office;
(d) Assignments of all Contracts included in the Assets,
all Collective Bargaining Agreements or the Assumed Liabilities that
are assignable with U.S. Can assuming the same; and
(e) Such other instruments of conveyance, transfer and
assignment as may be reasonably required to vest in U.S. Can sole and
exclusive right, title and interest in and to the Assets.
7.9 Good Standing Certificates. Alltrista shall cause to
be delivered to U.S. Can a Certificate of Existence from the Secretary of State
of the State of Indiana, and good standing certificates from the States of
Illinois, Maryland and Alabama. U.S. Can shall deliver to Alltrista a Delaware
good standing certificate.
7.10 Title Commitments. Alltrista shall cause to be
delivered to U.S. Can commitments for ALTA Form B owner's title insurance
policies with a creditors' rights endorsement (to be delivered within 30 days
of Closing), from the Chicago Title Insurance
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Company and in the amounts allocated to the Real Estate in Schedule
1.8 hereto and with exceptions reasonably acceptable to U.S. Can, for
each parcel of Real Estate.
7.11 Resolutions. Alltrista and U.S. Can shall each
deliver to the other party certified resolutions of its respective directors
approving and authorizing the execution of this Agreement and the Related
Agreements, and the consummation of the transactions contemplated hereby and
thereby.
7.12 Further Assurances. Alltrista and U.S. Can shall
each deliver, or cause to be delivered, all other documents required to be
delivered by the other party at the Closing and shall take all other actions
which are reasonably necessary or, in Alltrista's or U.S. Can's opinion, as the
case may be, appropriate in order to consummate fully the transactions
contemplated hereby.
7.13 Lien Searches. Alltrista will deliver UCC, tax and
judgment lien search results, in form and substance reasonably satisfactory to
U.S. Can.
7.14 Real Estate Deeds, Escrow. Alltrista shall deliver
to U.S. Can UCC-3 termination statements or releases executed by a duly
authorized representative of each of Alltrista's or AMS's creditors which has a
lien or encumbrance on any of the Assets, in good form for filing, terminating
or releasing all liens and encumbrances on the Assets.
7.15 Releases. Alltrista shall execute warranty deeds for
the Real Estate ("Deeds"). The Deeds and the purchase price for the Real
Estate as set forth in the Purchase and Lease Agreement shall be placed in
escrow in accordance with the terms of the Escrow Agreement attached hereto as
Exhibit 7.15.
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7.16 Payment of Purchase Price. U.S. Can shall pay the
Purchase Price to Alltrista in accordance with the terms of Section 1.4 hereof.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 Survival of Representations and Warranties;
Covenants. All representations and warranties contained herein or made in
writing by any party in connection herewith shall survive the Closing for a
period of two years, regardless of any investigation made by or on behalf of
any party, except for the representations and warranties contained in Sections
2.8 (to the extent it relates to free and clear title), 2.12 (to the extent it
relates to product claims), 2.13 and 2.15, which shall survive until the
expiration of the applicable statute of limitations (including any extensions
thereof) with respect to the underlying subject matter thereof. All covenants
contained herein shall survive until performed fully. Notwithstanding the
foregoing, (i) any representation, warranty, covenant or agreement in respect
of which indemnity may be sought under Section 8.2 or 8.3 shall survive the
time at which it would otherwise terminate, as to a particular
misrepresentation or particular breach thereof giving rise to such right to
indemnity, if written notice of the misrepresentation or breach thereof giving
rise to such right to indemnity shall have been given to the party against whom
such indemnity may be sought prior to such time, and (ii) any indemnity claim
based on any misrepresentation or breach of any representation, warranty,
covenant or agreement in respect of which indemnity may be sought under Section
8.2 or 8.3 shall be made promptly after the party seeking to make such claim
first became aware of the facts constituting the basis thereof (unless, prior
to such time, notice of such claim shall have been
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given to the party against whom such indemnity may be sought); provided,
however, that the indemnifying party shall not be relieved of any liability in
the event the indemnified party fails to promptly make its indemnification
claim unless and to the extent the indemnifying party is substantially
prejudiced thereby.
8.2 Indemnification by Alltrista. (a) Alltrista agrees
to indemnify and hold U.S. Can and its affiliates, and the respective officers,
directors, employees, agents and representatives of each of the foregoing
(collectively, the "Representatives"), harmless from and against any and all
costs, expenses, losses, claims, damages, penalties, fines, liabilities and
obligations whenever arising or incurred (including, without limitation,
amounts paid in settlement, costs of investigation and reasonable attorneys'
fees and expenses) (individually, a "Loss," and collectively, "Losses") arising
out of or relating to (i) any liability or obligation of Alltrista or AMS,
whether past, present or future, contingent or otherwise, matured or unmatured,
that is not an Assumed Liability; (ii) any breach of any representation or
warranty set forth in Article II hereof or any related schedule; (iii) any
failure of title to, or any liabilities, liens, security interests, mortgages,
pledges, claims, judgments, exceptions, reservations, charges, encumbrances or
obligations on or with respect to, any of the Assets; (iv) any breach of any
covenant or obligation of Alltrista contained in this Agreement or in any other
document entered into or delivered in connection with this Agreement; (v) all
Tax or other liabilities or liens arising out of or related to compliance (or
failure to comply) with, or clearance under, the applicable bulk sales or
transfer laws in the States of Illinois, Maryland, Alabama or any other
applicable jurisdiction; (vi) all Taxes that may be due as a result of the
conduct of the Metal Services Business through the Closing Date or the sale of
the Assets hereunder (except as otherwise provided in this Agreement),
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or which are attributable to Alltrista's or AMS's actions or omissions prior to
the Closing; (vii) successor tax, employment, ERISA or other liabilities, not
expressly assumed by U.S. Can hereunder, including without limitation
liabilities arising out of or related to any claims or causes of action against
Alltrista or AMS disclosed on the Schedules to this Agreement; (viii)
Alltrista's or AMS's criminal acts or omissions; (ix) any fraud,
misrepresentation or omission by Alltrista in connection with the transactions
contemplated by this Agreement; and (x) the amount by which the actual
inventory value of the coatings and inks included in the Assets is less than
$590,000; provided, however, that (a) Alltrista shall not be liable under
Section 8.2(a) until and then only to the extent that U.S. Can's and its
Representatives' Losses exceed $300,000 (the "Deductible"), except with respect
to any Loss arising under Section 8.2(a)(v), 8.2(a)(vi), 8.2(a)(viii),
8.2(a)(ix) or 8.2(a)(x), and (b) in no event shall the aggregate liability of
Alltrista under Section 8.2(a) exceed the aggregate consideration paid to
Alltrista under this Agreement and the Related Agreements (the "Cap").
(b) Without limitation of the indemnification set forth in
subparagraph (a) of Section 8.2, Alltrista shall indemnify and hold U.S. Can
and its affiliates, and their Representatives, harmless from and against (i)
any and all environmental remediation required by law (or reasonably required
to market and sell the property at or near its appraised value) or compliance
costs, expenses and liabilities, whenever arising or incurred, arising out of
or related to acts, omissions, events, conditions or occurrences occurring or
in existence, as the case may be, prior to Closing, (ii) any and all costs,
expenses and liabilities, whenever arising or incurred, asserted by any
individual or entity other than Alltrista arising out of or related to the
products manufactured and/or decorating services rendered by Alltrista or AMS,
or their respective
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assignors or predecessors, prior to Closing, (iii) any and all costs or
expenses incurred by U.S. Can to correct the conditions identified in the
OSHA/industrial hygiene reports delivered to U.S. Can by Alltrista prior to the
Closing Date ("OSHA Reports"), including but not limited to electrical system
deficiencies, asbestos in certain AMS plants and machine guarding deficiencies,
which have not been fully remedied as of the Closing Date ("OSHA Matters");
provided, however, that U.S. Can shall no later than 90 days after the Closing
Date provide Alltrista a written list of corrective actions reasonably required
to be taken with respect to the OSHA Matters and the cost thereof, and,
provided, further, that U. S. Can shall complete such corrective actions as
soon as reasonably possible, but not later than one year after the Closing
Date, (iv) all OSHA citation penalties, workers' compensation claims and tort
claims made against U.S. Can within one year of Closing arising out of or
related to the OSHA Matters as in existence prior to completion of corrective
actions with respect thereto (unless and to the extent U.S. Can failed to
correct any OSHA Matters as soon as reasonably possible), and (v) any and all
costs or expenses incurred by U.S. Can in refiling permit applications under
the Title V Clean Air Act Amendments of 1990, if reasonably necessary to comply
with applicable laws or regulations and/or correct factual matters in the
existing applications. U.S. Can is entitled to and shall receive
indemnification for the items included in Sections 8.2(b)(i), 8.2(b)(ii) and
8.2(b)(iii), if and to the extent that U.S. Can's and its Representatives'
Losses, with respect to an individual indemnification item, exceed $1,000 and,
in the aggregate, exceed $30,000, and without regard to the Cap.
8.3 Indemnification by U.S. Can. (a) U.S. Can agrees to
indemnify and hold Alltrista and its Representatives harmless from and against
any and all costs, expenses, losses,
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claims, damages, penalties, fines, liabilities and obligations whenever arising
or incurred (including, without limitation, amounts paid in settlement, costs
of investigation and reasonable attorneys' fees and expenses) arising out of or
relating to (i) any liability or obligation of U.S. Can that is an Assumed
Liability; (ii) any breach of any representation or warranty set forth in
Article III hereof or any related schedule; (iii) any breach of any covenant or
obligation of U.S. Can contained in this Agreement or in any other document
entered into or delivered in connection with this Agreement; (iv) all Taxes
that may be due as a result of the conduct of U.S. Can's business on and after
the Closing Date and, to the extent specified in this Agreement, Taxes arising
from the purchase and transfer of the Assets hereunder; (v) any liability
created or arising on and after the Closing Date which relates solely to U.S.
Can's operation of the Metal Services Business, including but not limited to
OSHA Matters U.S. Can fails to correct as soon as reasonably possible after the
Closing Date; (vi) if and to the extent U.S. Can terminates any former AMS or
Alltrista employee on or after the Closing Date, claims or causes of action
based solely on U.S. Can's actions or omissions with respect to any such
employee; (vii) any failure by U.S. Can to comply with any obligations imposed
by the WARN Act because of termination of Transferred Employees by U.S. Can on
or after the Closing Date; (ix) U.S. Can's criminal acts or omissions; and (x)
any fraud, misrepresentation or omission by U.S. Can in connection with the
transactions contemplated by this Agreement; provided, however, that (a) U.S.
Can shall not be liable under Section 8.3(a) until and then only to the extent
that Alltrista's and its Representatives' Losses exceed $300,000, except with
respect to any liability arising from Sections 8.3(a)(iv), (vi), (vii), (ix)
and (x) and (b) in no event shall the aggregate liability of U.S. Can under
Sections 8.3(a) exceed the Cap.
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(b) Without limitation of the indemnification set forth in
subparagraph (a) of Section 8.3, U.S. Can shall indemnify and hold Alltrista
and its affiliates, and their Representatives, harmless from and against (i)
any and all environmental remediation required by law and/or compliance costs,
expenses and liabilities arising out of or related to acts, omissions, events,
conditions or occurrences occurring or coming into existence on or after the
Closing Date, and (ii) any and all costs, expenses and liabilities, whenever
arising or incurred, asserted by any individual or entity other than U.S. Can
against Alltrista arising out of or related to the products manufactured and/or
decorating services rendered by U.S. Can on or after the Closing Date.
Alltrista is entitled to and shall receive indemnification for the items
included in Sections 8.3(b)(i) and 8.3(b)(ii) if and to the extent that
Alltrista's and its Representatives' Losses, with respect to an individual
indemnification item, exceed $1,000 and in the aggregate, exceed $30,000.
8.4 Indemnification Procedure. An indemnified party
under this Article VIII shall give prompt written notice to indemnifying party
(when and to the extent that the indemnified party has actual knowledge
thereof) of the commencement of any action, suit or proceeding, or the receipt
of any claim (any such action, suit, proceeding or claim hereinafter referred
to as a "Third Party Claim"), for which indemnification may be sought, and the
indemnifying party, through counsel reasonably satisfactory to the indemnified
party, may assume the defense thereof; provided, however, that any indemnified
party shall be entitled to participate in the defense of any Third Party Claim
with counsel of its own choice but at its own expense; and provided, further,
that any indemnified party shall be entitled to participate in any Third Party
Claim with counsel of its own choice at the expense of indemnifying party if,
in the good faith judgment of the indemnified party's counsel, joint
representation of the indemnified party and indemnifying party
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by counsel of the indemnifying party's choice presents a conflict of interest
under the applicable canons of ethics. In any event, if the indemnifying party
fails to assume defense of any Third Party Claim within 30 days of notice
thereof, the indemnified party may assume such defense and the fees and
expenses of its attorneys will be covered by the indemnity provided for in this
Article VIII. Notwithstanding anything in this Section 8.4 to the contrary,
the indemnifying party shall not, without the prior written consent of the
indemnified party, settle or compromise any Third Party Claim or consent to the
entry of any judgment in connection therewith which (i) does not include as an
unconditional term thereof the delivery by the claimant or plaintiff to the
indemnified party of a written release from all liability in respect of such
Third Party Claim or (ii) which involves payments or other consideration in
excess of the indemnifying party's indemnification obligation with respect
thereto or ability to pay. The indemnified party will also give prompt written
notice of any other condition, event or occurrence which may give rise to an
indemnification obligation hereunder. Notwithstanding the foregoing, failure
to notify the indemnifying party of any Third Party Claim or other event,
condition or occurrence which may give rise to an indemnification shall not
relieve the indemnifying party of its indemnification obligation with respect
thereto, unless and then only to the extent the indemnifying party is
substantially prejudiced by the indemnified party's failure to so notify the
indemnifying party. The indemnifying party shall pay all expenses, including
attorneys' fees, that may be incurred by any indemnified party in enforcing the
indemnity provided for in this Article VIII.
8.5 Arbitration. Any dispute as to any claims under this
Agreement shall be settled by arbitration in the City of Chicago, Illinois,
unless the parties agree otherwise, by three arbitrators, one of whom shall be
appointed by Alltrista, one of whom shall be appointed by U.S.
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Can and the third of whom shall be appointed by the first two arbitrators. If
either party fails to appoint an arbitrator within 20 days of a request in
writing by the other party to do so, or if the first two arbitrators cannot
agree on the appointment of a third arbitrator within 20 days of their
designation, then the second and/or third arbitrator shall be appointed by the
American Arbitration Association (AAA). Except as to the selection of
arbitrators which shall be as set forth above, the arbitration shall be
conducted promptly and expeditiously in accordance with the commercial
arbitration rules of the AAA so as to enable the arbitrators to render an award
within 90 days of the commencement of the arbitration proceedings. Judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Each party shall bear the expenses of the arbitrator it
selects and shall jointly and equally share with the other the expenses of the
third arbitrator and of the arbitration. The procedures specified in this
Section 8.5 shall be the sole and exclusive procedures for the resolution of
disputes between the parties arising out of or relating to this Agreement;
provided, however, that a party may seek a preliminary injunction or other
preliminary judicial relief if in its judgment such action is necessary to
avoid irreparable harm. Despite such action, the parties will continue to
participate in good faith in the procedures specified in this Section 8.5.
ARTICLE IX
MISCELLANEOUS
9.1 Amendment and Modification. This Agreement may only
be amended, modified or supplemented by written agreement of the parties.
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9.2 Waiver of Compliance; Remedies. Any failure of
Alltrista, on the one hand, or U.S. Can, on the other, to comply with any
obligation herein may be expressly waived hereunder, but such waiver shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Any waiver must be in writing and duly executed by the appropriate
party. Subject to the provisions of Section 8.5 hereof, the remedies set forth
in this Agreement shall be cumulative and no one shall be construed as
exclusive of any other or of any remedy provided by law and failure of any
party to exercise any remedy at any time shall not operate as a waiver of the
right of such party to exercise any remedy for the same or subsequent default
at any time. U.S. Can shall bear all expenses associated with the
legalization, authentication or recording of the assignments of patents and/or
trademarks with the United States Patent and Trademark Office.
9.3 Expenses. Except as otherwise provided in this
Agreement or the Related Agreements, whether or not the transactions
contemplated by this Agreement shall be consummated, the parties hereto agree
that all fees and expenses incurred by Alltrista, on the one hand, and U.S.
Can, on the other, in connection with this Agreement and the Related Agreements
shall be borne by Alltrista and by U.S. Can, respectively, including, without
limitation, all fees of counsel and accountants.
9.4 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or by facsimile
transmission (receipt confirmed) or three days after mailed, certified or
registered mail with postage prepaid:
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(a) If to Alltrista, to:
Mr. William L. Skinner
Senior Vice President
Administration & Corporate Development
Alltrista Corporation
301 South High Street
Muncie, IN 47305-2326
with a copy to:
Joseph E. DeGroff, Esq.
Bingham, Summers, Welsh & Spilman
2700 Market Tower Building
Ten West Market Street
Indianapolis, IN 46204
or to such other person or address as Alltrista shall furnish to U.S. Can in
writing by notice given in the manner set forth in (a) above.
(b) If to U.S. Can, to:
Mr. Timothy W. Stonich
Executive Vice President, Finance,
Chief Financial Officer and Secretary
United States Can Company
900 Commerce Drive
Oak Brook, IL 60521
with a copy to:
Steven K. Sims, Esq.
Assistant General Counsel
United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60521
or to such other person or address as U.S. Can shall furnish to Alltrista in
writing by notice given in the manner set forth above.
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<PAGE> 51
9.5 Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, including but not limited to
any successor in interest to U.S. Can in connection with any merger or other
business combination of U.S. Can or its parent. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except (i) in connection with a sale of all or substantially all of the assets
of U.S. Can or a merger or consolidation of U.S. Can and another entity(ies)
where the purchaser or surviving company, as the case may be, assumes all of
U.S. Can's obligations hereunder, (ii) U.S. Can may assign its rights and
obligations under this Agreement to any affiliate of U.S. Can, provided U.S.
Can guarantees such affiliate's performance hereunder, and (iii) U.S. Can may
assign all or part of its indemnification rights for environmental matters with
respect to a parcel of Real Estate to a purchaser of such Real Estate. If such
assignment shall be made by U.S. Can, such affiliate or purchaser shall be
entitled to all of the rights and shall assume all of the obligations of U.S.
Can hereunder.
9.6 Headings. The Article and Section headings contained
in this Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of this Agreement.
9.7 Severability. If any provision of this Agreement
shall be determined to be contrary to law and unenforceable by any court of
law, the remaining provisions shall be severable and enforceable in accordance
with their terms.
9.8 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois, without
regard to its conflicts of law principles.
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<PAGE> 52
9.9 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.
9.10 Third Parties. Except as specifically set forth or
referred to herein, nothing herein shall be construed to confer upon or give to
any party other than the parties hereto and their successors or permitted
assigns, any rights or remedies under or by reason of this Agreement.
9.11 Entire Agreement. This Agreement, including the
Exhibits and Schedules hereto, and the other documents and certificates
delivered pursuant to the terms hereof, set forth the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein, and supersede all prior agreements, covenants, representations or
warranties, whether oral or written, by any party hereto.
9.12 Exhibits and Schedules. The Exhibits and Schedules
are a part of this Agreement as if fully set forth herein.
9.13 Headings and Gender. The headings in this Agreement
are for reference only, and shall not affect the interpretation of this
Agreement. Whenever in this Agreement any masculine, feminine or neuter
pronoun is used, such pronouns shall also include the other genders whenever
required by context.
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<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first written above.
ALLTRISTA CORPORATION UNITED STATES CAN COMPANY
By: /s/ William L. Skinner By: /s/ Timothy W. Stonich
------------------------------- --------------------------------
William L. Skinner Timothy W. Stonich,
Its Senior Vice President Its Executive Vice President
- Finance
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<PAGE> 54
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I TERMS OF PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Excluded Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Time and Place of Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4.1 Amount of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4.2 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.5 Assumption of Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.5.1 Assumption of Collective Bargaining Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.6 Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.7 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.8 Allocation of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF ALLTRISTA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Organization and Qualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.4 Absence of Conflicts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.6 Absence of Undisclosed Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 Absence of Certain Changes or Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.8 Real and Personal Property; Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.9 Patents, Trademarks, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.11 Contracts and Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.12 Litigation and Administrative Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.13 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.13.1 Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.13.2 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.13.3 All Taxes Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.13.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.13.5 Asset Attributes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.14 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.15 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.16 Employee Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.16.1 Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.16.2 No Liens Arising Under ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
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<TABLE>
<S> <C>
2.17 Licenses and Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.18 Employment Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.19 Discrimination; Occupational Safety; Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.20 Brokers and Finders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.21 Necessary Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.22 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.23 Government Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.24 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.25 Effect of Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE III REPRESENTATIONS AND WARRANTIES OF U.S. CAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Organization and Qualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.3 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.4 Absence of Conflicts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.5 Litigation and Administrative Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.6 Brokers and Finders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.7 Effect of Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IV COVENANTS OF ALLTRISTA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.1 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.2 Non-Competition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.3 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.4 Post-Closing Access to Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.5 Discontinuation of Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.6 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.7 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE V COVENANTS OF U.S. CAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.1 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.2 Retention of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.3 Transfer Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.4 Employee Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.4.1 Union Pension Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.4.2 Salaried Pension Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.4.3 Employee Welfare Benefits
5.4.4 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.4.5 WARN Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.4.6 Employees on Disability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.4.7 Employment Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
</TABLE>
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<TABLE>
<S> <C>
5.4.8 Rollovers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.4.9 Severance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.5 Alltrista Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.6 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE VI MUTUAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.1 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2.1 Tax Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2.2 Allocation of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.2.3 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.3 Health Care Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.4 Mutual Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.1 Legal Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.1.1 Legal Opinion of Alltrista. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.1.2 Legal Opinion of U.S. Can. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.2 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.3 Purchase and Lease Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.4 Tin Plate Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.5 Sales Agent Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.6 Technology License . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.7 Closing Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.8 Instruments of Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.9 Good Standing Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.10 Title Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.11 Resolutions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.12 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.13 Lien Searches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.14 Real Estate Deeds, Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.15 Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.16 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VIII SURVIVAL AND INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.1 Survival of Representations and Warranties; Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.2 Indemnification by Alltrista. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.3 Indemnification by U.S. Can. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.4 Indemnification Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.5 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
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<TABLE>
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ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.1 Amendment and Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.2 Waiver of Compliance; Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.3 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.5 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.6 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.10 Third Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.12 Exhibits and Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.13 Headings and Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
</TABLE>
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LIST OF
OMITTED SCHEDULES
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
<S> <C>
1.1(a) Machinery and Equipment
1.1(b) Intellectual Property
1.2 Description of Alltrista's Plastisol & Induction Curing Businesses
1.5 Assumed Liabilities
1.6 Transferred Employees
1.8 Allocation of Purchase Price
2.3 Consents and Approvals
2.6 Undisclosed Liabilities
2.7 Certain Changes or Events
2.8(a) Real Property
2.8(b) Real Property Compliance
2.16 Employee Benefits
2.18 Employment Agreements
2.19 Discrimination; Occupational Safety; Labor
5.4.7 Employees
2.8(c) Liens and Encumbrances on Assets
2.8(d) Assets Not in Good Working Order
2.9(a) Patents and Trademarks
2.9(b) Title to Patents and Trademarks
2.10 Insurance
2.11 Contracts, Commitments and Warranties
</TABLE>
<PAGE> 1
Exhibit 20.1
NEWS RELEASE
FOR IMMEDIATE RELEASE:
CONTACT: Timothy W. Stonich
Executive Vice President and
Chief Financial Officer
U.S. Can Corporation
900 Commerce Drive
Oak Brook, IL 60521
(708) 571-2530
U.S. CAN PURCHASES ALLTRISTA METAL SERVICES
OAK BROOK, IL, APRIL 29, 1996 -- U.S. Can Corporation (NYSE: USC) announced
today that it had acquired certain assets of the Metal Services Division of
Alltrista Corporation for $14.9 million. Alltrista Metal Services consists of
three manufacturing plants located in Chicago, Baltimore and Birmingham,
Alabama, and is engaged in the business of processing, coating and
lithographing steel. The division reported sales of $88 million in 1995. U.S.
Can, engaged in a similar business at a number of facilities, had metal
services sales of approximately $63 million in 1995. As part of the agreement,
U.S. Can will provide metal services to Alltrista's home canning business for a
period of five years. U.S. Can further indicated that it intended to operate
the acquired plants with the existing workforce while evaluating its
facilities' alignment and integration of the additional business into the
company.
"We believe this is a terrific deal for both companies," said William J. Smith,
Chairman, President and CEO. "The synergies of putting the two together has
allowed us to give Alltrista an attractive long-term supply agreement and, at
the same time, furthers our objectives of growth in this business. We look
forward," Smith added, "to welcoming Alltrista and their customers into the
U.S. Can family."
U.S. Can operates 30 plants in 11 states. The company is the nation's leading
supplier of metal containers for personal care, household, automotive, paint
and industrial products and a major factor in metal custom and specialty
products.
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