As Filed with the Securities and Exchange Commission June 17, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SEALED AIR CORPORATION
(Exact Name of Issuer as Specified in its Charter)
State or Other Jurisdiction of Incorporation or Organization: Delaware
I.R.S. Employer Identification Number: 22-1682767
Address and Telephone Number of Principal Executive Offices: Park 80 East,
Saddle Brook, New Jersey 07662-5291, (201) 791-7600
ROBERT M. GRACE, JR., ESQ.
General Counsel and Secretary
SEALED AIR CORPORATION
Park 80 East, Saddle Brook, New Jersey 07662-5291
(Name and Address of Agent for Service)
Telephone Number, Including Area Code, of Agent for Service: 201-791-7600
Approximate date of proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [ X ]
CALCULATION OF REGISTRATION FEE
Title of each Amount to be Proposed maximum Proposed maximum Amount of
class of registered offering price aggregate registration
securities to per unit offering price fee
be registered
Common Stock- 45,678 $28.875* $1,318,952 $454.81
par value shares
$0.01 per
share
*Estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457(c) and based on the average
of the high and low sale prices of the Registrant's Common Stock as
reported in the New York Stock Exchange consolidated reporting system on
June 14, 1994.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A)
OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE>
SUBJECT TO COMPLETION, JUNE 17, 1994
Prospectus
45,678 SHARES
SEALED AIR CORPORATION
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
This Prospectus relates to 45,678 outstanding shares (the "Shares") of
of Common Stock, par value $0.01 per share (the "Common Stock"), of Sealed Air
Corporation, a Delaware corporation ("Sealed Air"), that are being sold for
the account of certain stockholders (collectively, the "Selling Stockholders")
of Sealed Air. Under certain circumstances, Instapak France S.A., a wholly-
owned subsidiary of Sealed Air, may receive a portion of the proceeds of the
sale of the Shares. See "Plan of Distribution" for a brief description of
such circumstances and of the plan of distribution of the Shares.
The Common Stock is traded on the New York Stock Exchange. The
last reported sale price of Sealed Air Common Stock on the New York Stock
Exchange-Composite Transaction Index on June __, 1994 was $__.__ per share.
Neither delivery of this Prospectus nor any disposition or
acquisition of Common Stock made pursuant to this Prospectus shall, under
any circumstances, create any implication that there has been no change in
the information set forth herein or incorporated by reference herein since
the date of this Prospectus or since the dates as of which information is
set forth herein or incorporated by reference herein. No person is
authorized to give any information or to make any representations other than
as contained herein, and if given or made, such information or representations
must not be relied upon as having been authorized by Sealed Air. This
Prospectus does not constitute an offer to sell or a solicitation of an offer
to buy shares of the Common Stock in any state to any person to whom it is
unlawful to make such offer or solicitation in such state.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is June __, 1994.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of these
securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities of any
such state.
<PAGE>
STATEMENT OF AVAILABLE INFORMATION
Sealed Air is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission ("SEC"). Such reports, proxy
statements and other information filed by Sealed Air can be inspected and
copied at the Public Reference Section of the SEC located at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, and at regional public reference
facilities maintained by the SEC located at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661, and at 7 World Trade Center, Suite 1300, New
York, New York 10048. Certain of such materials are also available through
the SEC's Electronic Data Gathering and Retrieval System ("EDGAR"). Copies
of such material can be obtained from the Public Reference Section of the SEC
by mail at prescribed rates. Requests should be directed to the SEC's Public
Reference Section, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Sealed Air's reports, proxy statements and other
information concerning Sealed Air can also be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005.
Sealed Air has filed with the SEC a Registration Statement (together
with all amendments and exhibits thereto, "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act") covering the
securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which
are omitted from this Prospectus in accordance with the rules and regulations
of the SEC. For further information, reference is made to the Registration
Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Sealed Air (File No. 1-7834) with
the SEC are incorporated by reference into this Prospectus:
(a) Sealed Air's Annual Report on Form 10-K for the year ended
December 31, 1993, which incorporates by reference audited consolidated
financial statements of Sealed Air for the three years ended December 31,
1993 that appear in Sealed Air's 1993 Annual Report to Stockholders;
(b) Sealed Air's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994; and
(c) the description of Sealed Air's capital stock which is
contained in Item 1 of Sealed Air's Registration Statement on Form 8-A
dated May 1, 1979.
All documents filed by Sealed Air with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the securities
covered by this Prospectus shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the respective date
of filing of each such document.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed documents which also is or is deemed
to be incorporated by reference herein or in any prospectus supplement
modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
COPIES OF THE ABOVE DOCUMENTS (EXCLUDING EXHIBITS TO SUCH DOCUMENTS,
UNLESS SUCH EXHIBITS HAVE BEEN SPECIFICALLY INCORPORATED BY REFERENCE THEREIN)
MAY BE OBTAINED UPON ORAL OR WRITTEN REQUEST WITHOUT CHARGE FROM THE SECRETARY,
SEALED AIR CORPORATION, PARK 80 EAST, SADDLE BROOK, NEW JERSEY 07662-5291
(TELEPHONE NUMBER 201-791-7600).
THE COMPANY
Sealed Air Corporation and its subsidiaries are engaged primarily
in the manufacture and sale of protective and specialty packaging materials
and systems.
Sealed Air, originally formed in 1960, was incorporated in Delaware
in 1969. Sealed Air's principal executive offices are located at Park 80
East, Saddle Brook, New Jersey 07662-5291 (Telephone: 201-791-7600).
SELLING STOCKHOLDERS
The shares subject to this offering (the "Shares"), listed below,
may be offered hereunder from time to time by the Selling Stockholders named
below from the date of this Prospectus so long as the Registration Statement
of which this Prospectus forms a part remains effective. Sealed Air has
agreed with the Selling Stockholders to use its commercially reasonable
efforts to keep the Registration Statement of which this Prospectus forms a
part effective until May 9, 1997.
Names of Selling Number of Shares Number of Shares
Stockholders Held Prior to Subject to
This Offering This Offering
Delamare Sovra, S.A. 38,948 shares 38,948 shares
Etablissements Pierre 6,730 shares 6,730 shares
Delamare et
Compagnie, S.A.
The Selling Stockholders acquired the Shares pursuant to a Stock
Purchase Agreement dated February 25, 1994 (the "Stock Purchase Agreement")
among Sealed Air, Instapak France S.A., a French societe anonyme that is a
wholly-owned subsidiary of Sealed Air ("Instapak"), Delamare Sovra S.A., and
Etablissements Pierre Delamare et Compagnie S.A. ("Etablissements Delamare"),
each of the latter two companies being a French societe anonyme (the latter
two companies being collectively referred to herein as the "Selling
Stockholders"), and Mr. Pierre Delamare, a French citizen ("Mr. Delamare").
Pursuant to the Stock Purchase Agreement, on May 9, 1994, Instapak acquired
all of the outstanding capital stock of Delsopak S.A., a French societe
anonyme formed by the Selling Stockholders to conduct the packaging business
carried on prior to such acquisition by the Selling Stockholders ("Delsopak").
The Stock Purchase Agreement provides for Instapak to pay the purchase price
for the outstanding capital stock of Delsopak in two installments of
FF7,500,000, the first of which was paid on May 9, 1994 by the issuance of the
Shares and the second of which is required to be paid on May 9, 1996 either in
cash or, at Instapak's option, in shares of Sealed Air's Common Stock valued
at the time such shares are issued.
In connection with the transactions contemplated by the Stock
Purchase Agreement, Delsopak entered into a Patent License Agreement dated May
9. 1994 (the "License Agreement") with Establissements Delamare and Mr.
Delamare pursuant to which Delsopak licensed certain patents used in its
business from Establissements Delamare in return for a license fee of
FF10,000,000, of which 50% was paid in cash on May 9, 1994 and 50% is
due on May 9, 1996. Delsopak has the option of paying the second such
installment either in cash or in shares of Sealed Air's Common Stock valued
at the time such shares are issued. Sealed Air has agreed with the Selling
Stockholders that, if additional shares of Sealed Air's Common Stock are
issued or otherwise delivered in payment of the amounts due under the
Stock Purchase Agreement or the License Agreement on May 9, 1996, it will
file a registration statement with respect to the shares so issued or
delivered so as to permit their resale by the Selling Stockholders on
substantially the same terms and conditions as this Registration
Statement.
Based on information furnished to Sealed Air by the Selling
Stockholders, the only shares of Common Stock of Sealed Air owned by the
Selling Stockholders are the shares which they acquired in the transactions
contemplated by the Stock Purchase Agreement. The Stock Purchase Agreement
contains mutual indemnification provisions covering this registration and
offering.
PLAN OF DISTRIBUTION
Pursuant to the Stock Purchase Agreement, the Selling Stockholders
have deposited the Shares covered by the Registration Statement with French
American Banking Corporation. If, within 30 days after Sealed Air has given
notice of the effectiveness of the Registration Statement to the Selling
Stockholders, the Selling Stockholders cause such bank to sell any of the
Shares covered by the Registration Statement, then (a) if the net proceeds of
the sale of such shares divided by the number of shares sold within such 30-
day period exceeds $29.10 per share, the Selling Stockholders shall cause such
bank to pay such excess amount to Instapak and (b) if the net proceeds of the
sale of such shares divided by the number of shares sold within such 30-day
period is less than $29.10 per share, Sealed Air will cause Instapak to pay
the amount of such shortfall to the Selling Stockholders. Proceeds of the
sale that are paid to Instapak, if any, will be added to working capital. The
Selling Stockholders shall be responsible for payment of all commissions with
respect to the sale of such shares within such 30-day period.
If the Selling Stockholders do not sell all of the Shares within the
30-day period specified in the preceding paragraph, then the rights and
obligations with respect to the $29.10 per share sale price set forth in the
preceding paragraph shall cease with respect to the unsold Shares. In that
event, Sealed Air has been advised that such unsold Shares may be sold from
time to time by the Selling Stockholders or by their pledgees, donees,
transferees or other successors in interest.
Such sales may be made in one or more transactions on the New York
Stock Exchange, including ordinary brokers' transactions through French
American Banking Corporation or any broker selected by the Selling
Stockholders, block transactions, privately negotiated transactions effected on
that Exchange, or through sales to one or more brokers or dealers for resale of
such Shares as principals on or off such Exchange, at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. Sealed Air has also been advised that usual and customary
or specially negotiated brokerage fees or commissions may be paid by the
Selling Stockholders in connection with such sales, where appropriate, and that
no agreements, arrangements or understandings have been entered into with
brokers or dealers pertaining to the distribution of such Shares other than as
described in the preceding paragraph.
The Selling Stockholders and any brokers or dealers that
participate with the Selling Stockholders in effecting transactions in the
Shares may be deemed, without so admitting, to be underwriters. Any profits
received by the Selling Stockholders and any discounts, fees or commissions
received by such brokers or dealers might be deemed to be underwriting
discounts or commissions under the Securities Act. In addition, any of the
Shares that qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus.
LEGAL OPINION
The validity of the shares of Common Stock offered hereby has been
passed upon for Sealed Air by Robert M. Grace, Jr., Esq., General Counsel
and Secretary of Sealed Air. As of the date of this Prospectus, Mr. Grace
was employed by Sealed Air and owned was the beneficial owner of approximately
45,904 shares of Sealed Air Common Stock, certain of which are subject to a
right of forfeiture in favor of Sealed Air.
EXPERTS
The consolidated financial statements and financial statement
schedules of Sealed Air and its subsidiaries as of December 31, 1993 and 1992
and for each of the years in the three-year period ended December 31, 1993
incorporated by reference in this Prospectus and in the Registration Statement
have been incorporated by reference herein and in the Registration Statement
in reliance upon the reports of KPMG Peat Marwick, independent certified
public accountants, and upon the authority of such firm as experts in auditing
and accounting. The report of KPMG Peat Marwick covering the December 31, 1993
consolidated financial statements refers to a change in Sealed Air's method
of accounting for income taxes.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The fees and expenses to be paid by the Registrant in connection
with the distribution of the securities being registered hereby are estimated
as follows:
Registration Fee.................................$ 454.81
Accounting Fees and Expenses...................... 7,500.00
Miscellaneous......................................1,000.00
Total........................................... $ 8,954.81
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "General Corporation Law") provides that: (1) under certain
circumstances a corporation may indemnify a director or officer made party to,
or threatened to be made party to, any civil, criminal, administrative or
investigative action, suit or proceeding (other than an action by or in
the right of the corporation) because such person is or was a director,
officer, employee or agent of the corporation, or because such person is or
was so serving another enterprise at the request of the corporation, against
expenses, judgments, fines and amounts paid in settlement reasonably incurred
by such person in connection with such action, suit or proceeding, if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the corporation, and, with
respect to criminal cases, had no reasonable cause to believe such person's
conduct was unlawful; (2) under certain circumstances a corporation may
indemnify a director or officer made party to, or threatened to be made party
to, any action or suit by or in the right of the corporation for judgment in
favor of the corporation because such person is or was a director, officer,
employee or agent of the corporation, or because such person is or was so
serving another enterprise at the request of the corporation, against expenses
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation; and (3) a director or officer shall be
indemnified by the corporation against expenses reasonably incurred by such
person in connection with and to the extent that such person has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in the preceding clauses, or in defense of any claim,
issue or matter therein.
Under Article THIRTEENTH of the Registrant's Certificate of
Incorporation and Article VIII of the Registrant's By-Laws, indemnification
of directors and officers is provided for to the fullest extent permitted
under the General Corporation Law. Article EIGHTEENTH of the Registrant's
Certificate of Incorporation eliminates the liability of directors for
monetary damages for breach of fiduciary duty as directors, except to the
extent such exemption from liability is not permitted under the General
Corporation Law. The General Corporation Law, the Registrant's Certificate
of Incorporation and the By-Laws of the Registrant permit the purchase by
the Registrant of insurance for indemnification of directors and officers.
The Registrant currently maintains directors and officers liability insurance.
The foregoing summary of Section 145 of the General Corporation Law,
Articles THIRTEENTH and EIGHTEENTH of the Certificate of Incorporation of the
Registrant and Article VIII of the By-Laws of the Registrant is qualified in
its entirety by reference to the relevant provisions of Section 145, the
relevant provisions of the Registrant's Certificate of Incorporation, which
are incorporated herein by reference to Exhibit (2)(B) to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1992, File No. 1-
7834, and the relevant provisions of the Registrant's By-Laws, which are
incorporated herein by reference to Exhibit 3.3 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1993, File No. 1-7834.
The Registrant and the Selling Stockholders named in the Prospectus
have agreed to indemnify each other, as well as in the case of the Selling
Stockholders any person who controls the Registrant, against certain
liabilities under the Securities Act of 1933, as amended, as set forth in
Section 9(d) of the Stock Purchase Agreement constituting Exhibit 2.1 to
this Registration Statement.
Item 16. Exhibits.
Exhibit Number Description
2.1 Stock Purchase Agreement dated as of February 25, 1994 between
the Registrant, Instapak France, Delamare Sovra and
Etablissements Pierre Delamare et Compagnie, and Amendment to
such Stock Purchase Agreement dated as of May 9, 1994.
2.2 Patent License Agreement dated as of May 9, 1994 between
Etablissements Pierre Delamare et Compagnie, Delsopak, and Mr.
Pierre Delamare.
4.1 Unofficial Composite Certificate of Incorporation of the
Registrant as currently in effect. (Exhibit (2)(B) to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1992, File No. 1-7834, is incorporated herein
by reference.)
4.2 By-Laws of the Registrant as currently in effect. (Exhibit 3.3
to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993, File No. 1-7834, is incorporated
herein by reference.)
5 Opinion of Robert M. Grace, Jr., General Counsel and Secretary,
Sealed Air Corporation, as to the legality of the securities
registered.
23.1 Consent of KPMG Peat Marwick.
23.2 Consent of Robert M. Grace, Jr., General Counsel and Secretary,
Sealed Air Corporation (Contained in opinion filed as Exhibit
5).
24 Powers of Attorney (Contained in signature pages of this
Registration Statement).
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Saddle Brook and the State of New
Jersey, on the 17th day of June, 1994.
SEALED AIR CORPORATION
By T. J. DERMOT DUNPHY
T. J. Dermot Dunphy
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose individual signature
appears below hereby authorizes T. J. Dermot Dunphy, William V. Hickey and
Robert M. Grace, Jr., and each of them, as attorneys-in-fact, with full power
of substitution, to execute, in the name and on behalf of each such person and
in each capacity stated below, and to file any amendment to this Registration
Statement, including any and all post-effective amendments.
Signature Title Date
T. J. DERMOT DUNPHY President and Director June 17, 1994
T.J. Dermot Dunphy (Principal Executive Officer)
WILLIAM V. HICKEY Senior Vice President- June 17, 1994
William V. Hickey Finance (Principal Financial
and Accounting Officer)
Director
LAWRENCE R. CODEY Director June 17, 1994
Lawrence R. Codey
CHARLES F. FARRELL, JR. Director June 17, 1994
Charles F. Farrell, Jr.
DAVID FREEMAN Director June 17, 1994
David Freeman
SHIRLEY A. JACKSON Director June 17, 1994
Shirley A. Jackson
ALAN H. MILLER Director June 17, 1994
Alan H. Miller
R. L. SAN SOUCIE Director June 17, 1994
R.L. San Soucie
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
BETWEEN:
- - SEALED AIR CORPORATION, a Delaware corporation having its
main office at Park 80 East/Saddle Brook, New Jersey 07662-
5291, United States of America (hereafter referred to as
"Sealed Air"),
- - INSTAPAK FRANCE, a company with limited liability organised
and existing under the laws of France, a "societe anonyme"
with a share capital of FF 7,000,000, having its registered
office at 3, avenue de la Mare 95310 Saint Ouen l'Aumone,
registered at the Commercial and Company's Registry of
Pontoise and under the number B 712 004 241 (hereafter
referred to as "Instapak"),
AND:
- - DELAMARE SOVRA, a company with limited liability organised
and existing under the laws of France, a "societe anonyme"
with a share capital of FF 1,900,000, having its registered
office at Route d'Elbeuf, 27340 Criquebeuf-sur-Seine,
registered at the Commercial and Company's Registry of
Louviers and under the number B 599 801 925 (hereafter
referred to as "Delamare Sovra"),
- - ETABLISSEMENTS PIERRE DELAMARE ET COMPAGNIE, a company with
limited liability organised and existing under the laws of
France, a "societe anonyme" with a share capital of FF
250,000, having its registered office at Criquebeuf-sur-
Seine, 27340 Pont de l'Arche registered at the Commercial
and Company's Registry of Louviers and under the number B
665 650 289 (hereafter referred to as "Etablissements P.
Delamare"), _
(collectively the "Selling Stockholders").
AND:
- - Mr Pierre DELAMARE, a French citizen born on July 11, 1937
in Criqueboeuf sur Seine, and domiciled 31 Chemin des
Forrieres, 27340 Criqueboeuf sur Seine ("Pierre Delamare").
WHEREAS :
Instapak is a wholly owned subsidiary of Sealed Air. Instapak
and Sealed Air (collectively "the Sealed Air Group") and the
Selling Stockholders have considered for more than two years the
transfer to the Sealed Air Group of the packaging business
(hereinafter the "Packaging Business") carried on by Delamare
Sovra and Etablissements P. Delamare. The Packaging Business
includes, inter alia (i) the Delsoquick and Delsoflex trademarks
and patents which are owned by Etablissements P. Delamare, and
(ii) a leasing contract on the Criquebeuf site, equipment,
inventories, trade receivables, which are owned by Delamare
Sovra. Thus, to date, the Packaging Business is split between
separate legal entities. In addition, the validity of certain of
the assets of the Packaging Business, i.e. the Delsoflex patents,
is contested before the Courts by certain third parties.
Accordingly, after lengthy discussions with respect, in
particular, (i) to the kind of assets and liabilities of the
Packaging Business that the Sealed Air Group is willing to
acquire, (ii) to the kind of existing and potential liabilities
attached to the Delsoflex patents in dispute , which discussions
have led to the parties contemplating several acquisition
structures which have in the meantime been abandoned, the Sealed
Air Group has requested to the Selling Stockholders that there
be isolated in a single legal entity all of the assets and
liabilities of the Packaging Business that the Sealed Air Group
would be prepared to acquire, in the absence of which they would
not continue the discussions.
Pursuant to this request, the Selling Stockholders have set up
a company ("Delsopak") to which they intend to contribute the
assets and liabilities of the Packaging Business, except,
essentially, the Delsoflex patents some of which are in dispute
to date.
Delsopak is a company with limited liability organised and
existing under the laws of France, a "societe anonyme" with a
share capital of FF 250,000, having its registered office at
Route d'Elbeuf, 27340 Criquebeuf-sur-Seine, Pont de l'Arche,
registered at the Commercial and Company's Registry of Louviers
under number B 393 380 597 (hereafter referred to as "Delsopak"),
All of the shares of Delsopak form the "Delsopak Capital Stock".
The Selling Stockholders own and will own at the Closing Date (as
hereinafter defined) the entire Delsopak Capital Stock , and the
Selling Stockholders desire to sell the entire Delsopak Capital
Stock to Instapak.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
AGREEMENT
1. Purchase and Sale
Subject to the terms and conditions contained in this Agreement,
on the Closing Date (as hereinafter defined), Instapak shall
purchase from the Selling Stockholders, and the Selling
Stockholders shall sell to Instapak, the Delsopak Capital Stock,
which shares shall, on the Closing Date, constitute all of the
shares of Delsopak, in exchange for fifteen million French Francs
(FF.15,000,000) (the "Price").
2. Closing
(a) Time and Place of Closing
The Closing under this Agreement (the "Closing") shall take
place, unless the Sealed Air Group and the Selling
Stockholders agree upon another date or place, at the
offices of Clifford Chance, Paris, at 10:00 A.M., local
time, on a date (the "Closing Date") to be mutually agreed
upon after the conditions set forth in Section 3 (a), 3 (b)
and 3 (c) shall have been satisfied, which date shall,
unless otherwise agreed, not be later than 30 June 1994.
(b) Exchange of Stock Certificates; Method of Payment
Subject to the satisfaction on or before the Closing Date
of the conditions set forth in Section 3:
(i) At the Closing, the Selling Stockholders shall deliver
to Instapak certificates for the Delsopak Capital
Stock, each registered in the name of Instapak or in
such names as shall be requested by Instapak prior to
the Closing which certificates shall represent all of
the shares of the Delsopak Capital Stock; and
(ii) At the Closing, Instapak shall pay to the Selling
Stockholders fifty percent (50%) of the Price, that is
seven million five hundred thousand French Francs
(FF 7,500,000) (the "First Instalment"). Instapak
shall pay the First Instalment to the Selling
Stockholders, at the sole discretion of the Sealed Air
Group, either in cash or by delivering to each Selling
Stockholder a certificate, registered in the name of
such Selling Stockholder, for a number of Sealed Air
Shares, as defined and computed pursuant to Section 2
(c).
(iii) Twenty four months after the Closing, Instapak
shall pay to the Selling Stockholders fifty
percent (50%) of the Price, that is seven million
five hundred thousand French Francs (FF
7,500,000) (the "Second Instalment"). Instapak
shall pay the Second Instalment to the Selling
Stockholders, at the sole discretion of the
Sealed Air Group, either in cash or by delivering
to each Selling Stockholder a certificate,
registered in the name of such Selling
Stockholder, for a number of Sealed Air Shares,
as defined and computed pursuant to section 2
(c).
(c) Determination of Sealed Air Shares
(i) The number of whole shares (the "Sealed Air Shares")
of Sealed Air's Common Stock, par value $ 0.01 (U.S.)
per share ("Sealed Air Common Stock"), to be delivered
to the Selling Stockholders if the Sealed Air Group so
decides, and at its sole discretion in conformity with
Section 2 (b) (ii) and (iii), shall be determined by
multiplying the First Instalment or the Second
Instalment, as the case may be, by the Exchange Rate
(as hereinafter defined) and by dividing such amount
by the Average Closing Market Price (as hereinafter
defined) and rounding the quotient to the nearest
whole share. The term "Average Closing Market Price"
shall mean the average of the closing market prices
for Sealed Air Common Stock as reported in the Wall
Street Journal for each of the five days on which such
shares are traded on the New York Stock Exchange
("Trading Days") immediately preceding the date which
is five Trading Days before the Closing Date, in the
case of the First Instalment or five Trading Days
before the second anniversary of the Closing Date in
the case of the Second Instalment. The term "Exchange
Rate" shall mean the spot rate of exchange at which
the U.S. Dollar is convertible into French Francs as
reported in The Wall Street Journal at the close of
business on the date on which the Average Closing
Market Price is determined.
(ii) No fractional Sealed Air Shares shall be delivered to
any Selling Stockholder. All fractional shares of
Sealed Air Common Stock that a Selling Stockholder
would otherwise be entitled to receive as a result of
the transactions contemplated by this Agreement shall
be aggregated and, if a fractional share results from
such aggregation, such holder shall be entitled to
receive in lieu thereof, an amount of cash in French
Francs determined by multiplying the Average Closing
Market Price expressed in French Francs by the
fraction of a share of Sealed Air Common Stock to
which such person would otherwise have been entitled.
(d) Bank guarantee in respect of the Price
Instapak shall provide the Selling Stockholders with a bank
guarantee (as shown in Schedule 1) in respect of the Price.
The cost of such bank guarantee shall be born half by
Instapak and half by the Selling Stockholders.
(e) No limitation to the amount of the indemnity
The Sealed Air Shares to be delivered twenty four months
after the Closing pursuant to section 2 (b) (iii) shall not
be construed to limit the amount of the indemnity under
Section 6 of this Agreement.
(f) Delivery Constitutes Affirmation
The delivery to Instapak pursuant to subsection (b) (i) of
such certificates for the Delsopak Capital Stock shall
constitute an affirmation by each Selling Stockholder (i)
that the representations and warranties of such Selling
Stockholder contained in this Agreement remain true and
accurate on the Closing Date with the same force and effect
as if made on such date (except as affected by the
transactions contemplated by this Agreement and except to
the extent that any such representations and warranties
have been as of a specified date, in which case such
delivery shall constitute an affirmation that such
representations and warranties were true on such date) and
(ii) that such Selling Stockholder has duly performed or
caused to be performed all covenants, conditions and
obligations to be performed or satisfied under this
Agreement by such Selling Stockholder or Delsopak.
(g) Documents to be delivered by the Selling Stockholders
to Instapak
At the Closing, the Selling Stockholders shall deliver to
Instapak:
(i) Unconditional letters of resignation which waive any
right to indemnity, from the following directors of
Delsopak :
- Pierre Delamare
- Philippe Delamare
- Francois Delamare
in relation to all subsequent company mandates or
other functions they carry out in Delsopak.
(ii) The following Delsopak documents:
- certified copies of the Memorandum and Articles
of Association of Delsopak;
- the list of shareholders and their respective
shareholding in Delsopak;
- extract "K-bis" of the Commercial and Companies
Registry, of less than one month's date,
verifying that all prescribed formalities have
been carried out;
- extract of the Register of Companies of less than
one month's date upon which no charges have been
registered;
- the Minutes, Books and Share Account Books;
- originals of contracts which are presently in
force and which are listed in Schedule 2;
- original of the employment contract of Mr.
Philippe Delamare, which contract shall be in a
form reasonably satisfactory to Instapak.
- account books;
- any balance sheets and accounts of Delsopak that
may have been drawn up;
- certificates of insurance.
(iii) Minutes, duly certified to be in conformity with
the original by the President of the Board of
Directors of Delsopak, of the shareholders'
general meeting appointing the new Directors
which Instapak shall have designated to the
Selling Stockholders.
(iv) Cheque books, credit cards as well as a copy of the
instructions to be given to the banks of Delsopak in
relation to the change of signatories, Instapak being
in charge of appointing new signatories.
3. Conditions to the Obligations of Instapak and the Selling
Stockholders
(a) Conditions to the Sealed Air Group's Obligations
The obligations of the Sealed Air Group to purchase the
Delsopak Capital Stock and to effect the Closing are
subject to the satisfaction, on or before the Closing Date,
of the following conditions:
(i) Contributions-in-kind
Delamare Sovra shall contribute to Delsopak all of its
assets and liabilities pertaining to the Packaging
Business as described in the contribution agreement
(the "Contribution Agreement 1") annexed to this
Agreement (Schedule 3), in accordance with the laws
and regulations applicable to such type of operation;
and
Etablissements P. Delamare shall contribute to
Delsopak the patents and the trademarks "Delsoquick",
the trademarks "Delsoflex" and the equipment necessary
to carry out the Packaging Business as described in
the contribution agreement ("Contribution Agreement
2") annexed to this Agreement (Schedule 4), in
accordance with the laws and regulations applicable to
such type of operation.
(ii) Listing of Sealed Air Shares
The Sealed Air Shares shall have been authorised for
listing on the New York Stock Exchange upon official
notice of issuance.
(iii) Advances and Loans
No advances or loans by Delsopak to any of the Selling
Stockholders or to employees, affiliates or agents of
Delsopak or the Selling Stockholders shall have been
made or shall be outstanding.
(iv) Due Diligence
The Sealed Air Group shall have completed a due
diligence review of Delsopak including without
limitation a financial review or audit by KPMG Peat
Marwick of Delsopak's financial condition, which
review and audit shall reveal that the Net Asset Value
of Delsopak as defined in Schedule 5 is at least
twelve million French Francs (FF. 12,000,000).
Should such due diligence review of Delsopak reveal
that the Net Asset Value of Delsopak is less than
FF.12,000,000, then, the Selling Stockholders shall be
under the obligation to bring such Net Asset Value up
to at least FF.12,000,000, by, at the election of
Instapak and to the satisfaction of KPMG Peat Marwick:
- either contributing cash to Delsopak; and/or
- assuming part of Delsopak's liabilities.
(v) Certificate of Non Encumbrance
Sealed Air and Instapak shall have received:
- a Certificate of Non-Encumbrance in form and
substance satisfactory to it with respect to the
real property owned by Delsopak and a "certificat
hypothecaire" in respect of the premises located
at Criquebeuf which reveal that there is, in
particular, no mortgage over such property, and
- a certificate from the Lessor's insurance broker
that the real property which is rented under the
Criqueboeuf Leasing Contract which is referred to
in the Contribution Agreement 1, is insured in
compliance with the said Leasing Contract.
(vi) Permits, Approvals, Litigation, Etc.
All permits and approvals from any governmental agency
or regulatory authority required for the lawful
consummation of the transactions contemplated by this
Agreement shall have been obtained and shall remain in
full force and effect. No legal proceeding shall be
pending or overtly threatened, or any basis for such
a proceeding asserted, before any court or by any
governmental agency or regulatory authority of any
jurisdiction directed against the consummation of any
of the transactions contemplated by this Agreement
which makes it impracticable or inadvisable on the
part of Sealed Air or Instapak to proceed with the
transactions contemplated by this Agreement. Sealed
Air, Instapak and the Selling Stockholders shall have
obtained all consents and permits, if any are
required, from third parties in connection with the
performance of their respective obligations under this
Agreement.
(vii) Patents, Trademarks
At the Closing, there shall have no agreements in
force entered into with third parties by Delamare
Sovra and/or Etablissements P. Delamare which relate
directly or indirectly to the Delsoflex patents and
trademarks and/or the Delsoquick patents and
trademarks (such as, for instance, a license agreement
whether exclusive or non exclusive) and Delamare Sovra
and/or Etablissements P. Delamare, as the case may be,
shall inform Instapak in a form satisfactory to
Instapak that no such agreements are in force on the
Closing Date and that any third parties (except NMC
and NMC KENMORE) which have had rights on the
Delsoflex and/or Delsoquick patents and/or trademarks
have released Delamare Sovra and/or Etablissements P.
Delamare from their obligations with regard to these
agreements.
(viii) Accuracy of Representations and Warranties
The representations and warranties of the Selling
Stockholders and Pierre Delamare contained in this
Agreement shall be true and accurate on the Closing
Date as if made on such date (except as affected by
the transactions contemplated by this Agreement and
except to the extent that any such representations and
warranties have been made as of a specified date, in
which case such representations and warranties shall
have been true and accurate as of such specified
date).
(ix) Performance of Agreements
The Selling Stockholders shall have duly performed,
and shall have caused Delsopak to duly perform, on or
before the Closing Date, all covenants and obligations
to be performed by them under this Agreement.
(x) Officer's Certificates
The Selling Stockholders shall have delivered to
Sealed Air a certificate dated the Closing Date and
executed by the President of Delsopak certifying that
Delsopak has duly performed on or before the Closing
Date all covenants and obligations to be performed by
it under this Agreement, as well as a certificate
dated the Closing Date executed by each of the Selling
Stockholders certifying that the Selling Stockholders
have each duly performed on or before the Closing Date
all covenants and obligations to be performed by them
under this Agreement.
(xi) Satisfaction of Sealed Air's Counsel
All legal aspects of the transactions contemplated by
this Agreement shall be accomplished in a manner
satisfactory to Sealed Air's counsel.
(xii) No material adverse change
There shall have been no material adverse change in
the business, assets or prospects, financial or
otherwise, of Delsopak or the Packaging Business.
(b) Conditions to the Selling Stockholders' Obligations
The obligations of the Selling Stockholders to sell the
Delsopak Capital Stock and to effect the Closing are
subject to the satisfaction, on or before the Closing Date,
of the following conditions:
(i) Listing of Sealed Air Shares
The Sealed Air Shares shall have been authorised for
listing on the New York Stock Exchange upon official
notice of issuance.
(ii) Accuracy of Representations and Warranties
The representations and warranties of Sealed Air and
Instapak contained in this Agreement shall be true and
accurate on the Closing Date as if made on such date
(except as affected by the transactions contemplated
by this Agreement and except to the extent that any
such representations and warranties have been made as
of a specified date, in which case such
representations and warranties shall have been true
and accurate as of such specified date).
(iii) Performance of Agreements
Sealed Air and Instapak shall have duly performed all
covenants and obligations to be performed by them
under this Agreement on or before the Closing Date.
(iv) Instapak Officer's Certificate
Instapak shall have delivered to the Selling
Stockholders a certificate dated the Closing Date and
executed by its President certifying that (A) the
representations and warranties of Sealed Air and
Instapak contained in this Agreement remain true and
accurate on the Closing Date as if made on such date
(except as affected by the transactions contemplated
by this Agreement and except to the extent that any
such representations and warranties were made as of a
specified date, in which case such representations and
warranties shall have been true and accurate as of
such specified date) and, (B) Sealed Air and Instapak
have duly performed all covenants and obligations to
be performed by them under this Agreement on or before
the Closing Date.
(c) Condition precedent to the Sealed Air Group's and the
Selling Stockholders' obligations
The present Agreement has been entered into subject to the
following condition precedent:
- Obtaining by Instapak of the agreement of the Ministry
of Finance and Economy in France for the execution,
delivery and performance of this Agreement.
This condition precedent must be fulfilled at the latest by
30 June 1994. Should this condition precedent not have been
fulfilled by that date, the present contract shall be null
and void and no sum or sums will be due by either party.
In this respect, the Sealed Air Group undertakes to lodge
a file by the Ministry of Finance and Economy in France as
soon as practicable after the signing of this Agreement.
4. Representations, Warranties and Covenants of the Selling
Stockholders
Pierre Delamare and each Selling Stockholder represents and
warrants to and covenants with Sealed Air and Instapak as
follows:
(a) Such Selling Stockholder has and will on the Closing
Date have full legal right, power and authority to
sell, assign and transfer the Delsopak Capital Stock
owned by such Selling Stockholder.
(b) The shares of Delsopak Capital Stock owned by such
Selling Stockholder are owned by such selling
Stockholder free and clear of all restrictions on
transfer, liens, claims, equities, security interests
and encumbrances of any kind or nature whatsoever, and
delivery of such shares by such Selling Stockholder to
Instapak on the Closing Date as contemplated in
Section 2 (b) will transfer to Instapak good and
marketable title thereto free and clear of all
restrictions on transfer, claims, liens, equities,
security interests and encumbrances of any kind or
nature whatsoever.
(c) This Agreement is such Selling Stockholder's legal,
valid and binding obligation, enforceable against such
Selling Stockholder in accordance with its terms.
(d) The execution, delivery and performance of this
Agreement by such Selling Stockholder will not
conflict with, result in any breach of, or constitute
a default under or cause the acceleration of, or
require any consent, approval or other action of any
third party, court or governmental authority pursuant
to, any mortgage, indenture, or other agreement or
instrument, lien, license, permit, judgement, decree,
statute, ordinance, rule, regulation, proceeding or
order or any other restriction of any kind or
character to which such Selling Stockholder is a party
or by which such Selling Stockholder is bound or
affected.
(e) Such Selling Stockholder has received a copy of Sealed
Air's Annual Report on Form 10-K as filed with the
Securities and Exchange Commission (without the
exhibits thereto), and of Sealed Air's Annual Report
to Stockholders, each for the year ended December 31,
1992, a copy of Sealed Air's Proxy Statement dated
March 31, 1993 for the Annual Meeting of Sealed Air's
stockholders held on May 21, 1993, and a copy of
Sealed Air's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1993, and such Selling
Stockholder has had access to such other public
information regarding the business and financial
affairs of Sealed Air as such Selling Stockholder has
deemed necessary to enable such Selling Stockholder to
make an informed investment decision with respect to
the acquisition of the Sealed Air Shares.
(f) Such Selling Stockholder has such experience in
business and financial matters so as to be able to
evaluate independently the merits and risks of an
investment in the Sealed Air Shares, and such Selling
Stockholder is able to bear the economic risk of an
investment in the Sealed Air Shares including, without
limiting the generality of the foregoing, the risk of
losing all or any part of such Selling Stockholder's
investment in the Sealed Air Shares and the inability
of selling or otherwise transferring or disposing of
the Sealed Air Shares for an indefinite period of
time.
(g) Such Selling Stockholder has been afforded an
opportunity to ask questions about and receive answers
in response concerning the business and financial
affairs of Sealed Air from representatives of Sealed
Air and the opportunity to obtain any additional
publicly available information that such Selling
Stockholder desired with respect to Sealed Air.
5. Additional Representations, Warranties and Covenants of the
Selling Stockholders
Pierre Delamare and the Selling Stockholders jointly and
severally represent and warrant to and covenant with Sealed Air
and Instapak as follows:
(a) Organisation, Standing, Etc
Delsopak is a duly organised and validly existing
corporation in good standing under the laws of France and
has all requisite corporate power and authority to own,
lease and operate its properties and assets and to carry on
its business as now conducted.
(b) Capitalisation; Financial Condition
Delsopak will have on the Closing Date a share capital of
at least fifteen millions French Francs (FF 15,000,000).
The par value of the shares in Delsopak is one hundred
French Francs (FF 100). The said shares are free of any
usufruit, pledge, charge or security.
The gross sales of the Packaging Business (which include
the intra-company transfers of goods from one site to
another) for the twelve-month period ended 31 December 1993
are not less than thirty two million French Francs
(FF.32,000,000), and the assets (other than intangible
fixed assets such as goodwill, patents, trademarks, leasing
contracts) and liabilities of the Packaging Business
transferred to Delsopak pursuant to Contribution Agreements
1 and 2 referred to in Section 3 (a) (i) of this Agreement
are, at the time of their transfer to Delsopak at an amount
not greater than the lesser of their net book value as
reflected on the books of the Selling Stockholders and
their realizable fair market value.
(c) Articles of Association
The Selling Stockholders have delivered to Instapak a true,
correct and complete copy of the Articles of Association
(including all amendments thereto) of Delsopak as currently
in effect. No action or proceeding is pending or
contemplated for the amendment of the Articles of
Association of Delsopak or for the dissolution or
liquidation of Delsopak.
(d) Outstanding Options, Warrants or Other Rights
Delsopak has no outstanding option, warrant or other right
permitting or requiring it or others to purchase or convert
any obligation into shares of its Delsopak Capital Stock,
has not agreed to issue any shares of the Delsopak Capital
Stock, nor has made any commitment to increase the capital
stock of Delsopak. There are no voting trusts or other
agreements or understandings with respect to the voting or
transfer of shares of the Delsopak Capital Stock, and
shares of Delsopak are not subject to any preemptive
rights, rights of first refusal or similar rights.
(e) Subsidiaries
Delsopak has no subsidiaries.
(f) Record Ownership
Each Selling Stockholder is and will be on the Closing Date
the sole record and beneficial owner of all of the
outstanding shares of the Delsopak Capital Stock set forth
next to his name on Exhibit A.
(g) Certain Changes or Events
Since its incorporation, except as affected by the
transactions contemplated by this Agreement, Delsopak has
not:
(i) experienced any material change in its condition
(financial or otherwise), properties, assets,
liabilities, business, operations or prospects other
than changes in the ordinary course of business which
have not been materially adverse;
(ii) declared, set aside, made or paid any dividend or
other distribution in respect of its capital stock or
purchased or redeemed, directly or indirectly, any
shares of its capital stock, or made any other payment
(except for normal compensation, reimbursements of
business expenses, and amounts payable to the Selling
Stockholders pursuant to written agreements in effect
as of its incorporation, disclosed in the Disclosure
Schedule to this Agreement) to the Selling
Stockholders;
(iii) issued or committed to issue any shares of its
capital stock of any class or any options,
warrants or conversion or other rights to
purchase any such shares or interests or any
securities convertible into or exchangeable for
such shares or interests;
(iv) incurred any indebtedness for borrowed money or issued
or sold any debt securities;
(v) mortgaged, pledged or subjected to any lien, lease,
security interest or other charge or encumbrance, or
granted any option with respect to any of its
properties or assets, tangible or intangible;
(vi) acquired or disposed of any assets or properties of
material value;
(vii) forgiven or cancelled any debts or claims or
waived any material rights;
(viii) entered into any material transaction other than
in the ordinary course of business;
(ix) granted to any officer or salaried employee or any
class of other employees any increase in compensation
in any form in excess of the amount thereof in effect
as of its incorporation (other than normal periodic
salary reviews in amounts consistent with past
practices) or any severance or termination pay (other
than in minor amounts consistent with past practices),
or entered into any written employment agreement or
arrangement with any person;
(x) entered into, adopted or amended in any respect any
collective bargaining agreement or adopted or amended
any fringe benefit, bonus, profit-sharing,
compensation, stock option, pension, retirement,
deferred compensation, insurance or other similar
plan, agreement, trust, fund or arrangement for the
benefit of employees (whether or not legally binding);
(xi) suffered any damage, destruction or loss (whether or
not covered by insurance) which materially and
adversely affects or could materially and adversely
affect its condition (financial or otherwise),
properties, assets, business, operations or prospects
envisioned by it;
(xii) suffered any loss of employees or customers that
materially and adversely affects or could
materially and adversely affect it; or
(xiii) incurred any material liability or obligation
(fixed or contingent) except (A) liabilities and
obligations in the ordinary course of business
and (B) other liabilities and obligations not
exceeding one hundred thousand French Francs (FF
100,000) in the aggregate.
(h) Title to Properties ; Liens
Delsopak has good and marketable title to, or valid and
subsisting leasehold interests in, all of its respective
properties and assets, real and personal, tangible and
intangible. Such properties and assets constitute all of
the properties and assets previously used in the conduct of
the Packaging Business that are necessary or useful to the
conduct of that business as it was conducted prior to its
contribution to Delsopak, and there has been no loss or
casualty with respect to such properties or assets whether
or not covered by the proceeds of insurance. Except as
described in the Disclosure Schedule hereto, such
properties and assets are subject to no mortgage, option,
pledge, lien, charge, encumbrance, security interest,
conditional sale or other title retention agreement or to
any easements, rights of way, building or use restrictions,
exceptions, reservations or limitations which in any
material respect interfere with or impair the present and
continued use thereof in the usual and normal conduct of
the Packaging Business. There is not under any material
lease or sublease of real or personal property to which
Delsopak is a party any existing default or event of
default or event which with notice or lapse of time or both
would constitute a default. The provisions of the leasing
contract on the Criquebeuf site as regards, in particular,
the transfer of such contract, have been complied with so
that Delsopak shall benefit from all rights attached to
such leasing contract. The Disclosure Schedule hereto
contains a true and complete list and brief description of
all real and material personal properties owned, leased or
subleased by Delsopak, including any significant structures
located on any of such real properties. All improvements on
such real properties have been made and all operations
thereof have been conducted so as to comply with and
conform to, and to the best knowledge of Pierre Delamare
and the Selling Stockholders do not fail to comply with and
conform to, any and all applicable health, fire,
environmental (including without limitation air and water
pollution laws and regulations), safety, and building laws
and other applicable statutes, rules and regulations,
except for violations which (or the curing of which) would
not have a materially adverse effect on the conduct of the
present business activities of Delsopak. All such
improvements and operations comply with all zoning laws,
ordinances and regulations applicable to such real
properties. The buildings, structures, fixtures, machinery
and equipment used by Delsopak in the conduct of its
business are in good operating condition and repair.
(i) Adequacy of Patents and Other Rights
The Disclosure Schedule hereto contains a true and completed
list of:
(i) all patents, patent applications, inventions as to
which Delsopak has, or either of the selling
Stockholders have, commenced action to apply for
patents, trademarks (either registered or registration
applied for), trade names and copyrights that are as
of the date of this Agreement (A) owned or otherwise
held in the name of Delsopak or either of the Selling
Stockholders or (B) owned by or otherwise held in the
name of third parties in which Delsopak has any
interest by license or otherwise ; and
(ii) all licenses, assignments and agreements to which
Delsopak is a party and all liens, pledges or other
restrictions relating to any patent, patent
application, trademark (either registered or
registration applied for), trade name, copyright,
process, design, trade secret, know-how or technology
owned by or otherwise held in the name of Delsopak. To
the best knowledge of Pierre Delamare and the Selling
Stockholders, Delsopak has not infringed or is not
infringing, and the Selling Stockholders in the
conduct of the Packaging Business did not infringe, or
Delsopak and/or the Selling Stockholders have not
engaged or are not engaging in any unauthorised use
or misappropriation of, any patent, trademark, trade
name, copyright (including any copyright relating to
software), process, design, invention, trade secret,
know-how or technology owned by or belonging to any
third party and used in the business of Delsopak, and
there is no basis nor would there be any basis for the
assertion of any claim against Delsopak of such
infringement, unauthorised use of misappropriation.
There is no pending or threatened claim of such nature
against Delsopak.
The items described in clauses (i) and (ii) include all
such as are required or as are being used to carry on the
Packaging Business as it was conducted prior to its
contribution to Delsopak. Except as set forth in the
Disclosure Schedule, all such items are owned or usable by
Delsopak free from known objection or adverse claim, free
of known defect, and free of payments to any third party
except under agreements listed on the Disclosure Schedule
hereto.
(j) Litigation, Etc.
Except as disclosed in the Disclosure Schedule hereto,
there are no actions, suits, proceedings or investigations
pending or, to the best of the knowledge of Pierre Delamare
and the Selling Stockholders, threatened against or
affecting Delsopak, at law or in equity, before any court,
commission, board, bureau, agency, instrumentality or other
governmental authority. To the best of the knowledge of
Pierre Delamare and the Selling Stockholders, there are no
claims that have not been asserted against Delsopak that
are probable of assertion.
(k) Accounts Receivable
The accounts receivable of Delsopak are, and on the Closing
Date will be, usual and normal receivables and, through the
continuation of existing collection procedures, are and on
the Closing Date will be collectible within ninety (90)
days after the dates on which they arose in aggregate
amounts thereof, after allowance for doubtful accounts in
the amount of the reserve established therefore as
reflected in the Contribution Agreements 1 and 2 referred
to in section 3 (a) (i) of this Agreement.
(l) Inventory
Except as has been disclosed to and accepted by Instapak,
the inventories of Delsopak consist, and on the Closing
Date will consist, of items of a quality and quantity
usable or saleable in the normal course of the business of
Delsopak; the value of all items of obsolete materials and
of materials of below standard quality has been written
down to realisable market value or adequate reserves have
been provided therefore; and the value at which such
inventory is carried reflects the normal inventory
valuation policies used for the Packaging Business.
(m) Governmental Consents, Etc
Neither Delsopak nor any Selling Stockholder is required to
obtain any consent, approval or authorization of any
governmental authority in connection with the execution,
delivery and performance of this Agreement or the
consummation of the transactions contemplated by this
Agreement, except for such consents as are described in the
Disclosure Schedule hereto, which consents shall have been
duly obtained on or before the Closing Date and shall
remain in full force and effect on such date.
(n) Disclosure
Neither this Agreement, nor any other document,
certificate, schedule or written statement furnished to
Instapak or Sealed Air by on behalf of Delsopak or the
Selling Stockholders in connection with this Agreement or
the consummation of the transactions contemplated by this
Agreement, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained
herein or therein not misleading.
(o) Compliance with Other Instruments, Etc.
Except for the consents described in the Disclosure
Schedule hereto, which consents will be obtained prior to
Closing, the execution, delivery and performance of this
Agreement by the Selling Stockholders and the performance
by Delsopak of the obligations that the Selling
Stockholders have agreed hereunder to cause it to perform
will not conflict with, result in any breach of, or
constitute a default under or cause the acceleration of, or
require any permit, approval, consent or other action by
any other person pursuant to any provision of any charter,
bylaw, mortgage, indenture, lien, license, permit, lease,
option or other material agreement or instrument, judgment,
decree, ordinance, regulation, proceeding or order or any
other restriction of any other kind or character to which
Delsopak is a party or by which Delsopak or any of its
respective properties may be bound or affected.
(p) Compliance with Law
Delsopak holds all registrations, licenses, franchises,
permits and authorisations necessary for the lawful conduct
of its business and has conducted its business, and the
Selling Stockholders have conducted the Packaging Business,
so as to comply, and to the best knowledge of Pierre
Delamare and the Selling Stockholders have complied and are
complying in all material respects, with all applicable
statutes, laws, ordinances, rules and regulations
(including without limitation all such statutes, laws,
ordinances, rules and regulations that relate to the
environment, occupational safety, employment opportunity or
other terms of employment, product safety or the testing,
licensing or registration of their respective products) of
all governmental bodies, agencies and subdivisions having,
asserting or claiming jurisdiction over them or over any
part of their respective operations and are not in
violation of any thereof, except for such registrations,
licenses, franchises, permits and authorisations, the lack
of which, and for such statutes, laws, ordinances, rules
and regulations, non-compliance with or violations of which
(or the curing thereof), in any one case or in the
aggregate, would not have a materially adverse effect on
the assets, liabilities, earnings, business, prospects or
condition (financial or otherwise) of Delsopak or the
Packaging Business or impair the Selling Stockholders'
ability or the ability of Delsopak to consummate the
transactions contemplated by this Agreement.
(q) Existing Contracts
All material contracts, agreements, leases, licenses and
understandings to which Delsopak is a party (true, correct
and complete copies of which have been delivered or made
available to Sealed Air), which include all of the
contracts, agreements, leases, licenses and understanding
that are necessary to enable Delsopak to conduct the
Packaging Business, are in full force and effect and no
default, or event which with notice or lapse of time or
both would constitute a default, exists in respect thereof
on the part of Delsopak or, to the best of the knowledge of
Pierre Delamare and the Selling Stockholders, the other
parties thereto. Except as disclosed in the Disclosure
Schedule, Delsopak is not a party to or has no material
obligation, contingent or otherwise, under any (i) written
or oral contract not made in the ordinary course of
business, (ii) employment contract or other contract with
or for the benefit, directly or indirectly, of any officer,
director, shareholder or employee, (iii) collective
bargaining agreement with employees, (iv) bonus, pension,
profit-sharing, retirement, stock purchase,
hospitalisation, insurance or other plans providing
employee benefits, (v) lease with respect to any property,
real or personal, whether as lessor or lessee that is not
cancellable on less than 90 days notice, (vi) contract for
the purchase or provision of goods or services by Delsopak
for an aggregate price in excess of fifty thousand French
Francs (FF 50,000) per contract, (vii) contract or
commitment for capital expenditures in excess of fifty
thousand French Francs (FF 50,000) in the aggregate, (viii)
contract continuing over a period of more than one year
from its date, (ix) mortgage, loan or credit agreement, (x)
contract requiring consent to the transactions contemplated
by this Agreement, (xi) contract to act as an agent of any
person, (xii) guarantee of the obligations of any other
person, (xiii) contract for the distribution, sale or
marketing of its products by others, or (xiv) any other
material contract, agreement or understanding, written or
oral, affecting Delsopak whether or not Delsopak is a party
thereto.
(r) Outstanding Indebtedness
Except as set forth in the Contribution Agreements 1 and 2
referred to in section 3 (a) (i) of this Agreement,
Delsopak has no outstanding indebtedness, other than
uncapitalised leases and trade or business obligations
subsequently incurred in the ordinary course of business,
and Delsopak is not in default in respect of any terms or
conditions of any such indebtedness.
(s) Taxes, Etc.
Delsopak has filed or will file within the time prescribed
by law (including extensions of time approved by the
appropriate taxing authority) all tax and information
returns and reports required to be filed with the
Government of France and with each other taxing
jurisdiction in which Delsopak owns, leases or operates
property, or in which the failure to file such returns or
pay taxes could have any material adverse impact on the
Packaging Business, condition or properties of Delsopak,
and with all governmental units thereof, and have paid in
full or made adequate provision for the payment of all
taxes, interest, penalties, assessments or deficiencies
shown to be due or claimed to be due or in respect of such
tax and information returns and reports. There is and will
be no material omission, deficiency, error, misstatement or
misrepresentation in any tax or information return or
report filed for any year or period ending on or prior to
the Closing Date.
True and complete copies of all such tax and information
returns and reports and related documents have been made
available, and when requested have been furnished, to
Instapak. Delsopak has not consented to the extension of
time of any applicable statute of limitations in connection
with the filing of tax and information returns and reports
of the payment of taxes to the appropriate taxing authority
or has received any notice of any failure to file a tax or
information return or report claimed to be required to be
filed that has not been filed. Delsopak is not the subject
of any pending or threatened tax examination or is a party
to any proceeding or inquiry by any governmental authority
for the assessment or the proposed assessment or for the
collection of taxes, or interest or penalties with respect
thereto, nor has any claim for the assessment or proposed
assessment or for the collection of taxes, or interest or
penalties with respect thereto, been asserted against
Delsopak. There are no liens for taxes that are due and
unpaid on any of the properties or assets of Delsopak.
(t) Insurance
The Disclosure Schedule contains a true and complete list
and a brief description of all insurance policies currently
in force with respect to the business and assets of
Delsopak together with the premiums currently paid therein.
Delsopak is in compliance with all of the provisions of its
insurance policies and is not in default under any of the
terms thereof. Prior to the Closing, the Selling
Stockholders and Instapak France shall meet to determine
the terms of insurance contracts relating to the Packaging
Business contributed to Delsopak pursuant to Section
3(a)(i).
(u) No Brokers or Finders
No person or entity is entitled to any brokerage
commission, finder's fee, advisory fee or other like
payment from Delsopak or the Selling Stockholders in
connection with the transactions contemplated by this
Agreement for which Sealed Air or Instapak would be liable
in connection with the transactions contemplated by this
Agreement.
(v) Employment Matters
Information on the employees of Delsopak (as well as their
salaries as at the Closing Date) are given in the list
attached hereto (Schedule 6). Moreover, Schedule 6 hereto
contains:
- the contracts of employment of executives as well as
a standard form offer of employment for non-executive
staff;
- information regarding the collective bargaining
agreement and the text of the internal regulations
applicable to the employees of Delsopak;
- the text of the profit-sharing agreement and employee
participation in the business;
- information about pension or retirement schemes or
other social benefit systems applicable to Delsopak;
- the loans granted to executives, staff and workers of
Delsopak or the Packaging Business.
No service contract or particular benefit with the
exception of what is set out in Schedule 7 has been granted
by Delsopak, Delamare Sovra or the Etablissements P.
Delamare to any of its Directors, Managing Directors or
General Manager. As regards Delamare Sovra and
Etablissements P. Delamare, this representation is only
granted in respect of those Directors, Managing Directors,
or General Manager which are, in the meantime, employees
tranferred to Delsopak together with the Packaging Business
pursuant to article L 122.12 of the Labour Code. Further,
there are no service contracts granted by Delsopak in
favour of employees which contain clauses more favourable
than those provided for by the Collective Bargaining
Agreement applicable to Delsopak.
Neither Delamare Sovra, Etablissements P. Delamare nor
Delsopak is in breach of any clause of such contract. All
salaries, commissions and other remunerations and
reimbursement of expenses due to the beneficiaries of the
said contracts and commitments and to the staff as a whole
as at today's date, have been properly and fully paid or
provision has been made for them. Delsopak, Delamare Sovra
and Etablissements P. Delamare have not granted any
employment bonus and have not entered into any remuneration
agreement outside the usual scope of its activities, except
for those described in Schedule 8, and no employees of
Delsopak benefit from any particular advantage which
deviates from the general provisions of the applicable
contracts.
Delsopak has, at all times up to the Closing Date, complied
with all social security regulations. It is up to date with
the payment of its contributions in respect of social
security, family allowances and the various retirement and
unemployment organisations.
(w) Miscellaneous
(i) The Disclosure Schedule contains a true and complete
list of (A) each bank and safety deposit facility in
which Delsopak has an account or a safety deposit box
and (B) the names of all persons authorised to draw on
each such account or to have access to any such safety
deposit facility together with a description of the
authority (and conditions thereof, if any) of each
such person with respect thereto.
(ii) Delsopak, since its incorporation, has not permitted
any option to renew any material lease or any material
option to purchase any property to expire unexercised,
in whole or in part.
(iii) The Disclosure Schedule hereto includes a true
and complete list of all outstanding powers of
attorney granted by Delsopak other than limited
powers of attorney solely in connection with tax
matters and appointments of statutory agents to
receive service of process.
(iv) Except as set forth on the Disclosure Schedule,
Delsopak has no obligation or liability, either
actual, accrued, accruing or contingent, as guarantor,
surety, co-signer, endorser, co-maker, indemnitor or
otherwise in respect of the obligation of any person,
corporation, partnership, joint venture, association,
organisation or other entity, except as endorser or
maker of checks endorsed or made in the ordinary
course of business.
(v) The Disclosure Schedule contains a complete and
accurate list of (A) the ten largest customers by
French Franc sales volume of the Packaging Business of
Delamare Sovra, during each of its 1992 and 1993
fiscal years, indicating any existing contractual
arrangements with each such customer and whether the
terms of purchases by such customer differed from the
ordinary and customary trade terms of Delsopak or the
Packaging Business, as the case may be, and (B) the
products purchased by each such customer in such
fiscal year, indicating the amount of each such
product so purchased.
(x) The assets described in Contribution Agreement 1
(Schedule 3) and in Contribution Agreement 2 (Schedule
4) include all such as are required or as are being
used to carry on the Packaging Business as it was
conducted prior to its contribution to Delsopak except
as set forth in annex (Schedule 9) to this Agreement.
6. Indemnification
(a) Indemnification
Pierre Delamare and the Selling Stockholders hereby jointly
and severally agree that they will indemnify and save
harmless Sealed Air and Instapak, or, at the election of
Sealed Air and Instapak, Delsopak, from and against any and
all losses, liabilities, fines, judgments, claims, damages
and expenses (including reasonable attorneys' fees actually
incurred) (collectively "Losses") incurred by Sealed Air or
Instapak including without limitation any loss or decline
in the value of Delsopak, by reason of, or arising out of
(i) any false, misleading or inaccurate representation or
warranty by the Selling Stockholders contained in this
Agreement or in any other document, instrument,
certificate, schedule or written statement prepared for use
and delivered to Sealed Air or Instapak in connection with
the transactions contemplated by this Agreement or any
breach of any such Stockholders of any provision of this
Agreement or any breach of any such representation or
warranty, (ii) any breach by the Selling Stockholders of
any provision of this Agreement, (iii) any matter of event
occurring or arising on or before the Closing Date which,
if known on the Closing Date, would, whether but for any
qualification as to materiality or the absence of actual
knowledge provided for in this Agreement or otherwise, have
constituted such a false, misleading or inaccurate
representation or warranty or such a breach, or (iv) any
matter described in Section 6 (c), 6 (d) and 6 (e).
(b) Liability for Indemnification
Except in the case of actual fraud, the Selling
Stockholders shall not be liable for indemnity under this
Section 6 :
(i) for any Losses (other than Losses arising out of
Section 6 (c) or Section 6 (d) or the representations
and warranties contained in Section 5 (s)) unless
notice of such Loss has been given to the Selling
Stockholders by Sealed Air or Instapak on or prior to
the second anniversary of the Closing Date; or
(ii) for any Losses arising out of Section 6 (c) or Section
6 (d) or the representations and warranties contained
in Section 5 (s) unless notice of such Loss has been
given to the Selling Stockholders by Sealed Air or
Instapak on or prior to the expiration of the relevant
tax statute of limitations; or
(iii) after the Closing hereunder, for any Losses
arising out of any particular matter as to which
the nature and existence of such matter shall
have been fully and fairly disclosed in writing
to Seald Air or Instapak prior to the Closing
hereunder, which writing states that it is
intended to take advantages of the benefit of
this Section 6 (b) (iii) and is accepted by
Sealed Air or Instapak.
(c) The Selling Stockholders shall be liable for indemnity
under this Section 6 in respect of any losses
resulting from any claim against Delsopak which could
be made by the French Tax Administration, pursuant to
the contributions-in-kind referred to in Section
3(a)(i) hereabove, in conformity, in particular, with
articles 1682 and/or 1684 of the "Code General des
Impots" and/or with the Law of 17 March 1909 on
transfers of businesses.
(d) The Selling Stockholders undertake to indemnify
INSTAPAK or, at the election of Instapak, Delsopak for
any sums which may be due by DELSOPAK to Mr. Thierry
BENARD by way of compensation, damages or otherwise,
resulting from the clause "horaires" of his employment
contract (set out in Schedule 6) in the case where Mr.
Thierry BENARD should be paid, by way of amicable,
out-of-court settlement or following a court action,
any sums to compensate the one hour difference he is
allowed to take off per week pursuant to the terms of
his employment contract and may not have taken off for
his employment period ending on the Closing Date.
(e) Survival of Representations and Warranties
The representations and warranties of the Selling
Stockholders shall survive the Closing to the extent
of the obligations of the Selling Stockholders for
indemnity under this Agreement.
(f) Security
As security of the performance of the Selling
Stockholders' obligations of indemnification, the
Selling Stockholders expressly and irrevocably
authorise Instapak :
(i) to exercise a right of set off with respect to the
Second Instalment due to the Selling Stockholders in
conformity with Section 2 (b) (iii) pursuant to the
transfer of the Delsopak Capital Stock, and the
indemnity under this Section 6 if the amount of such
indemnity is definitive at the date when the Second
Instalment is due, or
(ii) to deposit with United Jersey Bank, located at
Hackensack, New Jersey, United States of America which
shall hold it in escrow the Second Instalment due to
the Selling Stockholders in conformity with Section 2
(b) (iii) pursuant to the transfer of Delsopak Capital
Stock up to the estimated amount of the indemnity if
the amount of such indemnity is not yet definitive at
the date when the Second Instalment is due. United
Jersey Bank shall retain the estimated amount of the
indemnity until the date at which it is definitive and
shall then consequently allocate it to the Selling
Stockholders and/or Sealed Air and/or Instapak.
For the purpose of this subsection (e) the amount of
the indemnity shall be considered definitive if either
(i) the Selling Stockholders and Instapak agree on
such amount, or (ii) an award has been rendered in
such respect.
7. Representations and Warranties of Instapak
Instapak represents and warrants to and covenants with the
Selling Stockholders as follows:
(a) Due Incorporation
Sealed Air is a corporation duly organised, validly
existing and in good standing under the laws of the State
of Delaware, United States of America.
(b) Due Authorisation, Etc
The execution, delivery and performance of this Agreement
and the issuance of the Sealed Air Shares will, as of the
Closing Date, have been duly authorised by all necessary
corporate action of Sealed Air and, upon their delivery to
the Selling Stockholders pursuant to Section 2 (b) hereof,
the Sealed Air Shares will be validly issued, fully paid
and non-assessable with no personal liability attaching to
the ownership thereof. This Agreement has been duly
executed and delivered by Sealed Air and constitutes the
legal, valid and binding obligation of Sealed Air,
enforceable against Sealed Air in accordance with its
terms.
(c) No Violation
Subject to the obtaining of any necessary consents from its
lenders, the execution, delivery and performance of this
Agreement by Sealed Air does not conflict with or
constitute a breach by Sealed Air of any of the terms or
provisions of, or a default under, any charter document or
by-law of Sealed Air, or any mortgage, indenture or other
agreement or instrument, judgment, decree, ordinance,
regulation or order to which Sealed Air is a part or by
which Sealed Air is bound.
(d) Litigation
There is no litigation or governmental proceeding pending
or, to the knowledge of Sealed Air, threatened against
Sealed Air which seeks to prevent the consummation of the
transactions contemplated by this Agreement.
(e) Reports and Financial Statements
Sealed Air has delivered to the Selling Stockholders copies
of (i) its Annual Report on Form 10-K filed with the
Securities and Exchange Commission for the year ended
December 31, 1992 (without the exhibits thereto) and a copy
of Sealed Air's Annual Report to Stockholders for the year
ended on such date (each of which contains a consolidated
balance sheet of Sealed Air and its subsidiaries as at
December 31, 1992 and the related consolidated statements
of earnings, of additional paid-in capital and retained
earnings and of changes in consolidated financial position
of Sealed Air and its subsidiaries for the year ended on
such date), all as reported upon by KPMG Peat Marwick,
independent certified public accountants, (ii) Sealed Air's
Proxy Statement dated March 31, 1993 for its Annual Meeting
of Stockholders held on May 21, 1993, and (iii) Sealed
Air's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1993. Except as set forth therein, the
foregoing financial statements have been prepared in
accordance with generally accepted accounting principles.
The balance sheets (together with the related notes)
present fairly the consolidated financial position of
Sealed Air and its subsidiaries as at the respective dates
indicated, and the statements of earnings, shareholders'
equity (deficit) and of cash flows (together with the
related notes) present fairly the consolidated results of
Sealed Air's operations and of consolidated changes in
Sealed Air's financial position for the respective periods
indicated.
(f) No Brokers or Finders
No person or entity is entitled to any brokerage
commission, finder's fee, advisory fee or other like
payment from Sealed Air or Instapak for which the Selling
Stockholders would be liable in connection with the
transactions contemplated by this Agreement.
8. Certain Agreements
(a) Conduct of Business of Delsopak prior to the Closing,
etc
Prior to the Closing, except as contemplated by this
Agreement or as may be expressly approved in writing by
Sealed Air and Instapak, Pierre Delamare and the Selling
Stockholders:
(i) will cause Delsopak to operate the Packaging Business
only in the usual, regular and ordinary manner;
(ii) will cause Delsopak to maintain all of its properties
in customary repair, order and condition and to
maintain adequate insurance upon all of its
properties, at least in such amounts and of such kinds
comparable to that in effect on the date of this
Agreement;
(iii) will cause Delsopak to maintain books, accounts
and records in the usual, regular and ordinary
manner, on a basis consistent with prior periods
and to comply with all laws materially applicable
to it and to the conduct its business;
(iv) will not permit any amendment to be made in the
charter documents or bylaws of Delsopak or permit
Delsopak to merge or consolidate with, or to sell all
or substantially all of its assets to, any other
corporation or change the character of its business;
(v) will not permit any change to be made in the number of
shares of the Delsopak Capital Stock issued and
outstanding or any option, warrant or any other right
to purchase of to convert any obligation into shares
of the Delsopak Capital Stock, as the case may be, to
be granted or made by Delsopak;
(vi) will not permit (A) any dividend or other distribution
or payment to be declared, paid or made by Delsopak in
respect of its capital stocks, (B) any purchase,
redemption or other acquisition of any outstanding
shares of its capital stock, or (C) any payment to any
Selling Stockholder (except for normal compensation
and payments under existing contracts described in the
Schedules hereto, as previously in effect) in
repayment of any loan, advance or otherwise;
(vii) will not permit Delsopak to encumber or mortgage
any of its properties or assets or to enter into
any transaction or to make or enter into any
contract or commitment which is not in the
ordinary course of business, nor will the Selling
Stockholders permit Delsopak to incur any
obligation (contingent or otherwise) other than
in the ordinary course of business or to transfer
or convey or acquire any material assets or
property, or to enter into any arrangement,
agreement or undertaking (including, without
limitation, employment agreements with
executives), or to pay or promise to pay any
bonus or special compensation to employees,
except in accordance with existing employment
agreements, or to modify, amend or terminate any
bonus, pension, profit-sharing, compensation,
insurance or other similar plan, agreement,
trust, fund or arrangement for the benefit of
employees;
(viii) will promptly take, and shall cause Delsopak to
take, such actions as shall be necessary to
satisfy the conditions set forth in Section 3
requiring action on the part of the Selling
Stockholders or on the part of Delsopak; and
(ix) from and after the date of this Agreement, unless the
transactions contemplated by this Agreement shall be
terminated solely by action of Sealed Air, neither the
Selling Stockholders nor Delsopak shall solicit
inquiries or proposals or participate in any
negotiations concerning, or provide any person with
any information in connection with, any acquisition or
purchase by merger, consolidation, sale of stock or
assets or otherwise of all or substantially all of the
assets or capital stock of Delsopak and the Selling
Stockholders will notify Sealed Air, immediately if
any such inquiries or proposals are received by any of
them.
(b) Delivery of Minute Books and Corporate Records
The Selling Stockholders shall cause the minute books and
corporate records of Delsopak to be delivered to such
person or persons as may be designated by Sealed Air or
Instapak as the custodian of such records in complete and
up-to-date condition on the Closing Date. Such delivery
shall be deemed to be a representation on the part of the
Selling Stockholders that such minute books and corporate
records are true, correct and complete.
(c) Listing of the Sealed Air Shares
Sealed Air shall submit to the New York Stock Exchange,
promptly after the execution of this Agreement and the
approval thereof by Sealed Air's Board of Directors, an
application to list the Sealed Air Shares on such Exchange
and otherwise shall use its reasonable commercial efforts
to have the Sealed Air Shares authorised for listing on
such Exchange. The Selling Stockholders will cooperate with
Sealed Air in the preparation and submission of such
listing application as Sealed Air may reasonably request.
In the event that such Exchange authorises the Sealed Air
Shares for listing, Sealed Air shall give or cause to be
given official notice of the issuance of the Sealed Air
Shares to such Exchange promptly after their delivery to
the Selling Stockholders.
(d) Certain Tax Obligations
Each Selling Stockholder will pay in a timely manner any
and all taxes for which such Selling Stockholder may be
liable as a consequence of the transactions contemplated by
this Agreement and shall indemnify and hold Sealed Air,
Instapak, and Delsopak harmless from and against any claims
that may be made against any of them as a consequence of
any such Selling Stockholder's failure to perform his
obligations under this subsection (d).
(e) Non-Competition
Pierre Delamare and each Selling Stockholder covenants and
agrees, for a period of five (5) years from the Closing not
to participate, directly or indirectly, in any business
enterprise, in France or abroad, dedicated, directly or
indirectly to the manufacture, distribution or sale of any
type of packaging materials manufactured or sold by
Delsopak or by the Packaging Business during the two-year
period immediately preceding the Closing Date. If Pierre
Delamare or any Selling Stockholder participates, directly
or indirectly in the above described business activities,
he or such Selling Stockholder agrees to indemnify each of
Sealed Air, Instapak and Delsopak for any and all losses
suffered as a result of such business activities carried
out in contravention to what is provided herein. If he or
any Selling Stockholder contravenes the obligation
established under this subsection (e), he or such Selling
Stockholder will pay in cash, to Instapak, an amount equal
to 20 % of the gross sales of such competing business in
each year as liquidated damages. The payment of such
liquidated damages will be secured, but shall not be
limited, by the Second Instalment to be paid to the Selling
Stockholders pursuant to Section 2 (b) (iii).
9. Registration of the Sealed Air Shares and Restriction on
Transfer
(a) Registration Pursuant to Rule 415
Assuming the First Instalment and/or the Second Instalment
is paid in Sealed Air Shares, as soon as practicable after
the Closing Date in the case of the First Instalment,
and/or as soon as practicable after the second anniversary
of the Closing Date in the case of the Second Instalment,
and in no event later than 30 days after the date by which
the Selling Stockholders have supplied Sealed Air with all
information and materials with respect to Delsopak and the
Selling Stockholders required in connection with the filing
by Sealed Air of the registration statement referred to in
this Section, Sealed Air will file a registration statement
pursuant to Rule 415 of the regulations under the U.S.
Securities Act of 1933, as amended (the "1933 Act"),
relating to the Sealed Air Shares issued on such date and
use its reasonable commercial efforts to make such
registration statement become effective and qualify the
same under the Blue Sky laws of such states of the United
States as may be reasonably requested by Mr. Pierre
Delamare, as promptly as practicable after such filing;
provided, however, that Sealed Air shall not be obligated
to qualify as a foreign corporation or as a dealer in
securities or to execute or file any general consent to
service of process under the laws of any such state where
it is not so subject. Sealed Air agrees to use its
reasonable commercial efforts to keep the first such
registration statement (the "First Registration Statement")
effective until the third anniversary of the Closing Date
and to keep the second such registration statement (the
"Second Registration Statement") effective until the fifth
anniversary of the Closing Date. The description of the
plan of distribution in each such registration statement
shall be in substantially the form delivered to, and
approved by, the Selling Stockholders prior to the Closing
Date, with such changes therein as may be required by the
U.S. Securities and Exchange Commission. The Selling
Stockholders will not be entitled to any other rights with
respect to registration of the Sealed Air Shares. If the
Selling Stockholders shall have sold all of the Sealed Air
Shares covered by the First Registration Statement or the
Second Registration Statement, they shall promptly notify
Sealed Air so that Sealed Air may terminate the
effectiveness of such registration statement.
(b) Expenses
Subject to the limitations contained in this Section 9 (b)
and except as otherwise specifically provided in this
Section 9, the entire costs and expenses of the
registration and qualification pursuant to Section 9 (a)
shall be borne by Sealed Air. Such costs and expenses shall
include the fees and expenses of counsel for Sealed Air and
of its accountants, all other costs and expenses of Sealed
Air incident to the preparation, printing and filing under
the 1933 Act of the registration statement and all
amendments and supplements thereto, the cost of furnishing
copies of each preliminary prospectus, each final
prospectus and each amendment or supplement thereto to
underwriters, dealers and the Selling Stockholders, and the
costs and expenses (including fees and disbursements of
counsel, and National Association of Securities Dealers,
Inc. and listing fees) incurred by Sealed Air in connection
with the qualification of the Sealed Air Shares under the
Blue Sky laws of various jurisdictions. Notwithstanding the
above, Sealed Air shall not be required to pay any
underwriting or brokerage discounts, fees or commissions or
any fees of counsel for the Selling Stockholders in
connection with the registration or any sale pursuant to
Section 9 (a).
(c) Procedures
In the case of each registration or qualification pursuant
to Section 9 (a), Sealed Air will keep the Selling
Stockholders advised in writing as to the initiation of
proceedings for such registration and qualification, of
material development with respect to and as to the
completion thereof, and will advise any such Selling
Stockholder, upon request, of the progress of such
proceedings.
(d) Indemnification
Sealed Air will indemnify and hold harmless each Selling
Stockholder against any losses, claims, damages, or
liabilities, joint or several, and expenses (including
reasonable costs of investigation) to which such Selling
Stockholder or any persons controlling such selling
Stockholder or any officer and/or director of such Selling
Stockholder may be subject, under the 1933 Act or
otherwise, insofar as any thereof arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement under
which such shares were registered under the 1933 Act
pursuant to Section 9 (a), any prospectus contained therein
or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue
statement or omission or alleged omission based upon
information, including without limitation any information
provided as to Delsopak or the Packaging Business for the
period prior to the Closing Date, furnished to Sealed Air
in writing by such Selling Stockholder for inclusion in
such registration statement (with respect to which
information such Selling Stockholder shall so indemnify and
hold harmless Sealed Air and each person, if any, who
controls Sealed Air within the meaning of the 1933 Act). In
order to provide for just and equitable contribution in
circumstances in which the indemnification provided for
above in this Section 9 (d) is due in accordance with its
terms but is unavailable, Sealed Air or each Selling
Stockholder, as the case may be, shall contribute to the
aggregate losses, claims, damages and liabilities incurred
(including legal or other expenses reasonably incurred in
connection with investigating or defending the same). In
determining the amount of contribution to which the
respective parties are entitled, there shall be considered
the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any
statement or omission, and any other equitable
considerations appropriate in the circumstances; provided,
however, that no person guilty of fraudulent
misrepresentations (within the meaning of paragraph 11 (f)
of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentations.
(e) Selling Stockholders' Representation
Each Selling Stockholder represents and warrants to Sealed
Air that any acquisition of Sealed Air Shares by such
Selling Stockholder pursuant thereto will be, at the time
of acquisition, for his own account and that such Selling
Stockholder will hold any Sealed Air Shares received by him
pursuant hereto for his own account and not with a view to
any resale or distribution thereof in any manner not in
compliance with the 1933 Act and the rules and regulations
thereunder. Each Selling Stockholder agrees with Sealed Air
that:
(i) such Selling Stockholder is neither a citizen nor a
resident of the United States;
(ii) such Selling Stockholder will not offer to sell, sell
or otherwise dispose of any Sealed Air Shares except
(x) pursuant to an effective registration statement
under the 1933 Act, (y) in compliance with Rule 144
under the 1944 Act, or (z) in a transaction that, in
the opinion of counsel reasonably satisfactory to
Sealed Air, does not require registration of such
Sealed Air Shares under the 1933 Act; and
(iii) in the event of any disposition not made pursuant
to an offering registered under the 1933 Act,
such Selling Stockholder will indemnify and hold
harmless Sealed Air and its officers and
directors from and against any and all losses,
damages or liabilities for which they, or any one
of them, shall be or become liable under the 1933
Act or otherwise as a result of such disposition,
and will reimburse each of them for any legal or
other expenses incurred by them in connection
with defending against any claim or suit for
losses, damages or liabilities arising out of or
based on any distribution or resale of such
Sealed Air Shares, or any part thereof, by such
Selling Stockholder in violation of the 1933 Act,
or in breach of the representations set forth (it
being understood that such Selling Stockholder
shall have the right to participate, at such
Selling Stockholder's expense, in the defense of
any such claim).
(f) Legend on Certificates
(i) The certificates representing Sealed Air Shares (and
any certificate representing Sealed Air Common Stock
issued in exchange therefore or any certificate
representing Sealed Air Shares sold in compliance
herewith unless (x) Sealed Air shall have obtained an
opinion of counsel satisfactory to it that such legend
is not necessary under the 1933 Act or (y) such shares
are sold pursuant to an effective registration
statement in accordance with Section 9 (a)) will bear
a legend in substantially the following form:
"The Shares represented by this Certificate
have not been registered under the
Securities Act of 1933, but have been issued
or transferred to the registered owner
pursuant to an exemption from registration
thereunder. No transfer or assignment of any
such shares shall be valid or effective, and
the issuer of these shares shall not be
required to give any effect to any transfer
or attempted transfer or assignment of these
shares, including, without limitation, a
transfer by operation of law, unless (a) the
issuer shall have first obtained an opinion
of counsel satisfactory to it that the
shares may be transferred without
registration under such Act, (b) the shares
are sold in compliance with Rule 144 under
such Act and the issuer has been supplied
with documentation indicating compliance
with Rule 144, or (c) the shares are
registered under such Act."
Sealed Air agrees that within 12 business days after
receipt of any opinion referred to in the legend
described above, it will (A) use its reasonable
commercial efforts to cause its transfer agent to
issue certificates without such legend, or (B) notify
the Selling Stockholder supplying such opinion that
such opinion is not reasonably satisfactory to Sealed
Air. No such legend shall be endorsed on any such
certificates which, when issued, are no longer subject
to the restrictions described in such legend. The
Selling Stockholders agree that Sealed Air may give
such stop-transfer orders as may be necessary or
desirable to its transfer agent to implement or
reflect the provisions of this Section with respect to
the Sealed Air Shares.
(ii) Upon and at any time during the effectiveness of the
registration statement referred to in Section 9 (a),
each Selling Stockholder may deliver the certificates
for such Sealed Air Shares covered by the registration
statement containing the legend set forth in paragraph
(i) of this Section 9 (f), together with a request
that new certificates not bearing such legend and
representing such Sealed Air Shares be issued to such
holder in exchange for such legended certificates.
Such request shall set forth such Selling
Stockholder's understanding and agreement that
delivery by Sealed Air of such unlegended certificates
shall not release such Selling Stockholder from its
obligations under this Agreement or any certificate or
agreement delivered pursuant hereto or under the 1933
Act. Promptly (and in any event within 12 business
days) after receipt of such legended certificates and
such request, Sealed Air shall use its reasonable
commercial efforts to cause its transfer agent to
issue and deliver such new certificates. Each Selling
Stockholder agrees that if, at any time after
receiving such unlegended certificates, the
registration statement is not effective, the Selling
Stockholders will thereafter sell such Sealed Air
Shares in compliance with Rule 144 under the 1933 Act,
and the Selling Stockholders will, upon request by
Sealed Air, surrender the certificates for the Sealed
Air Shares in order that new certificates containing
the legend set forth in paragraph (i) of this Section
9 (f) may be issued to such Selling Stockholder in
exchange therefore.
(g) Certain Agreements Relating to the Resale of Sealed Air
Shares
On or before the effective date of the First Registration
Statement or the Second Registration Statement, as the case
may be, the Selling Stockholders shall deposit with a
brockerage firm reasonably acceptable to Sealed Air and
Instapak the Sealed Air Shares covered by such registration
statement. If, within 30 days after Sealed Air has given
notice of the effectiveness of such registration statement
to the Selling Stockholders, the Selling Stockholders cause
such brokerage firm to sell any of the Sealed Air Shares
covered by such registration statement, then the Selling
Stockholders shall cause such brokerage firm to deliver to
each of them and to Sealed Air a copy of each confirmation
of the sale of such Sealed Air Shares. If the net proceeds
of the sale of such shares divided by the number of shares
sold within such 30-day period exceeds the Average Closing
Market Price (expressed in U.S. Dollars) at which such
Sealed Air Shares were issued, then the Selling
Stockholders shall cause such brokerage firm to pay such
excess amount to Instapak. If the net proceeds of the sale
of such shares divided by the number of shares sold within
such 30-day period is less than the Average Closing Market
Price (expressed in U.S. Dollars) at which such Sealed Air
Shares were issued, Sealed Air shall cause Instapak to pay
the amount of such shortfall to the Selling Stockholders.
The Selling Stockholders shall advise Sealed Air from time
to time of the number of Sealed Air Shares covered by each
registration statement that they have sold or otherwise
disposed of.
10. Expenses
Whether or not the transactions contemplated by this Agreement
shall become effective, each party shall pay its own expenses
incidental to the negotiation and preparation for Closing of this
Agreement.
11. General
(a) Corporate Examination; Investigations
From time to time prior to the Closing Date, Sealed Air or
Instapak may, through its officers, employees, attorneys,
accountants, agents and representatives, investigate the
properties and assets, examine the books, records and
financial condition and consult with officers, employees,
attorneys, accountants, agents and representatives (whether
or not currently employed or retained) of Delsopak to the
extent that Sealed Air or Instapak deems necessary or
advisable to investigate the business or affairs of
Delsopak. Instapak and Sealed Air agree that, unless and
until the Closing has been consummated, Instapak and Sealed
Air and their representatives will hold in strict
confidence all data and information so obtained and that,
if the transactions contemplated by this Agreement are not
consummated, Instapak and Sealed Air will return to the
Selling Stockholders all such data and information as the
Selling Stockholders shall reasonably request.
(b) Execution in Counterparts
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
(c) Notices
All notices that are required or may be given pursuant to
this Agreement shall be given by personal delivery, by
facsimile transmission or by registered or certified mail,
return receipt requested, and any such notice shall become
effective when delivered in person, received by facsimile
or when deposited in the mails, to be sent via air mail,
postage prepaid, addressed as follows:
If to Sealed Air, to:
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07662
Attention: Robert M. Grace, Jr
General Counsel and Secretary
Facsimile No: 19-1 (201) 703-4205
If to Instapak, to:
Instapak
BP 9045
95071 Cergy Pontoise Cedex
Attention : Jean-Luc Debry, President - Directeur
General
Facsimile No: (1) 34 64 63 85
If to the Selling Stockholders, to their respective
addresses set forth at the beginning of this
Agreement.
The address of any party to this Agreement may be changed
at any time by written notice to the other parties to this
Agreement.
(d) Waivers
No waiver of any term, covenant or condition of this
Agreement shall be effective unless made in a written
instrument duly executed by or on behalf of the party
against whom such waiver is enforceable.
(e) Amendments
The parties may agree to the amendment or modification of
this Agreement by an agreement in writing executed in the
same manner as this Agreement.
(f) Binding Effect
This Agreement shall be binding upon and inure to the
benefit of the respective heirs, legatees, personal
representatives, successors and assigns of the parties
hereto.
(g) Governing Law
The execution, validity, construction and performance of
this Agreement shall be governed by and construed in
accordance with the laws of France.
(h) Captions; Gender; Etc.
The captions of this Agreement are for convenience of
reference only and shall not affect in any manner any of
the terms, covenants or conditions hereof. Words of the
masculine gender shall mean and include correlative words
of the feminine gender and words importing the singular
number shall mean and include the plural number and vice
versa.
(i) Conduct of Business of Instapak and Sealed Air
Neither the entering into, nor any provision contained in,
this Agreement shall in any way be construed or deemed,
either before or after the Closing, to restrict Instapak
and Sealed Air in the conduct of their respective
businesses.
(j) Furnishing of Information
Prior to the Closing, Sealed Air or Instapak will afford to
the Selling Stockholders, at such times during normal
business hours as may be reasonably requested by them, the
opportunity to ask questions, and to receive answers,
concerning the business and financial affairs of Sealed Air
from persons authorised to act on Sealed Air's behalf and
the opportunity to obtain any additional publicly available
information (to the extent Sealed Air has such information
or can acquire it without unreasonably effort or expense)
that the Selling Stockholders may reasonably request
concerning the Sealed Air Shares to be issued pursuant to
this Agreement.
(k) Dispute Resolution
Any dispute arising under this Agreement that is not
resolved by negotiation between the parties shall be
submitted to arbitration in accordance with the arbitration
rules of the International Chamber of Commerce. Any such
arbitration shall be held in Paris. The award of the
arbitrator in any such proceeding shall be binding on the
parties.
IN WITNESS WHEREOF,
the parties have duly executed this Agreement pursuant to
due authorization on 25 February 1994.
FOR SEALED AIR CORPORATION FOR DELAMARE SOVRA
FOR INSTAPAK FRANCE FOR ETABLISSEMENTS PIERRE
DELAMARE ET CIE
PIERRE DELAMARE
AMENDMENT TO THE STOCK PURCHASE AGREEMENT
BETWEEN:
- - SEALED AIR CORPORATION, a Delaware corporation having its
main office at Park 80 East/Saddle Brook, New Jersey 07662-
5291, United States of America (hereafter referred to as
"Sealed Air"),
- - INSTAPAK FRANCE, a company with limited liability organized
and existing under the laws of France, a "societe anonyme"
with a share capital of FF 7,000,000, having its registered
office at 3, avenue de la Mare 95310 Saint Ouen l'Aumone,
registered at the Commercial and Company's Registry of
Pontoise and under the number B 712 004 241 (hereafter
referred to as "Instapak"),
AND:
- - DELAMARE SOVRA, a company with limited liability organized
and existing under the laws of France, a "societe anonyme"
with a share capital of FF 1,900,000, having its registered
office at Route d'Elbeuf, 27340 Criquebeuf-sur-Seine,
registered at the Commercial and Company's Registry of
Louviers and under the number B 599 801 925 (hereafter
referred to as "Delamare Sovra"),
- - ETABLISSEMENTS PIERRE DELAMARE ET COMPAGNIE, a company with
limited liability organized and existing under the laws of
France, a "societe anonyme" with a share capital of FF
250,000, having its registered office at Criquebeuf-sur-
Seine, 27340 Pont de l'Arche registered at the Commercial
and Company's Registry of Louviers and under the number B
665 650 289 (hereafter referred to as "Etablissements P.
Delamare"), _
(collectively the "Selling Stockholders").
AND:
- - Mr Pierre DELAMARE, a French citizen born on July 11, 1937
in Criquebeuf-sur-Seine, and domiciled 31 Chemin des
Forrieres, 27340 Criquebeuf-sur-Seine ("Pierre Delamare").
WHEREAS :
Instapak, Sealed Air, the Selling Stockholders and Pierre
Delamare having signed a stock purchase agreement on 25 February
1994 (the "Stock Purchase Agreement"), the purpose of which is
the purchase by Instapak of all the shares of Delsopak (the
"Delsopak Capital Stock") for a price of fifteen million French
Francs (FF 15,000,000).
Section 3 (a) of the Stock Purchase Agreement, which provides a
list of conditions precedent to the obligation of the Sealed Air
Group (as defined in the Stock Purchase Agreement) to purchase
the Delsopak Capital Stock, sets out in paragraph (iv) the
following condition precedent:
"(iv) Due diligence
The Sealed Air Group shall have completed a due diligence
review of Delsopak including without limitation a financial
review or audit by KPMG Peat Marwick of Delsopak's
financial condition, which review and audit shall reveal
that the Net Asset Value of Delsopak as defined in Schedule
5 is at least twelve million French Francs (FF.
12,000,000).
Should such due diligence review of Delsopak reveal that
the Net Asset Value of Delsopak is less than FF.12,000,000,
then, the Selling Stockholders shall be under the
obligation to bring such Net Asset Value up to at least
FF.12,000,000, by, at the election of Instapak and to the
satisfaction of KPMG Peat Marwick:
- either contributing cash to Delsopak; and/or
- assuming part of Delsopak's liabilities."
IT IS AGREED AS FOLLOWS:
Instapak, Sealed Air, the Selling Stockholders and Pierre
Delamare agree and acknowledge that the condition precedent set
out in paragraph (iv) of Section 3 (a) of the Stock Purchase
Agreement is removed and is replaced by the representation,
warranty and indemnification obligation of the Selling
Stockholders and Pierre Delamare set out below.
Therefore, the Stock Purchase Agreement is amended as follows:
1. Paragraph (iv) of the Section 3 (a) is removed.
2. A paragraph (y) is inserted after paragraph (x) of Section
5:
"Section 5 (y):
The Net Asset Value of Delsopak, as defined in Schedule 5,
is at least twelve million French Francs (FF 12,000,000).
The parties estimate that as of March 31, 1994 the Net
Asset Value of Delsopak was FF 11,33,475 and agree that
four million and two hundred and forty thousand French
Francs (FF 4,240,000) will be paid to Delsopak from the
Escrow (as defined in Section 6 (g) within three days after
the Closing as an advance against the amount of the shortfall
in Net Asset Value, which advance includes a cash amount
payable the "Cash Amount Payable") by the Selling
Stockholders to Delsopak as of March 31, 1994 estimated to
be three million seven hundred fourty five thousand French
Francs (FF 3,745,000).
The Selling Stockholders, Pierre Delamare, Sealed Air and
Instapak appoint KPMG Fiduciare de France, 222 boulevard du,
Marechal Juin 78200 Mantes la Jolie ("KPMG") in order to
carry out the financial review of Delsopak with a view to
determine the Net Asset Value of Delsopak at April 30, 1994.
The valuation of the Net Asset Value, as determined by KPMG,
shall be binding upon the Selling Stockholders, Pierre Delamare,
Sealed Air and Instapak unless it is objected by either the
purchasing or the selling parties within a period of five (5)
days after the delivery of the Audit Report (as defined below),
in which case the dipute resolution mechanism provided for in
Section 11 (k) of the Stock Purchase Agreement shall apply.
KPMG Peat Marwick shall be appointed by the Selling Stockholders
with a view to issue their audit report on the accounts of
Delsopak as at 30 April 1994 and on the Net Asset Value
as of such date as promptly as possible after the Closing
(the "Audit Report"). The Audit Report shall be delivered
jointly to the Selling Stockholders, Pierre Delamare,
Sealed Air, Instapak and the Escrow (as defined in Section
6 (g)) by letter with acknowledgement of receipt. The costs
of the Audit Report shall be borne by the Selling
Stockholders."
3. a. The first paragraph of the Schedule 5 of the Stock
Purchase Agreement is amended as follows:
"The Net Asset Value of Delsopak is the difference, as at
30 April 1994, between"
b. The last paragraph of Schedule 5 of the Stock Purchase
Agreement is amended as follows:
"It is specified that the normal depreciation between 1
January and 30 April 1994 of the amortizable fixed assets
contributed to Delsopak shall be excluded for the
computation of the Net Asset Value."
4. A paragraph (g) is inserted after paragraph (f) of Section
6:
"The Selling Stockholders and Pierre Delamare jointly and
severally undertake to indemnify Delsopak against any
shortfall in the Net Asset Value of Delsopak as determined
in Section 5 (y) of this Agreement, so that the Net Asset
Value of Delsopak, after taking into account the
indemnification paid to Delsopak by the Selling
Stockholders and/or Pierre Delamare, shall be restored at
twelve million French Francs (FF 12,000,000).
Such an indemnification shall be paid to Delsopak within a
maximum period of five (5) days following the day on
which the Audit Report is delivered to the Selling
Stockholders, Pierre Delamare, Sealed Air, Instapak and the
Escrow (as defined below). In order to guarantee their
obligation under this Section 6 (g), the Selling
Stockholders and Pierre Delamare undertake to lodge a
deposit of five million French Francs (FF 5,000,000)
(the "Deposit") on the Closing Date in Banque Francaise
du Commerce Exterieur, a French societe anonyme having
its registered office at 21, boulevard Haussman,
75009 Paris, (the "Escrow") which shall hold the Deposit
in escrow in accordance with the terms of the Escrow
agreement which will provide the following:
- the Escrow shall immediately pay to Delsopak four
million and three hundred thousand French Francs
(FF 4,300,000) after it will have received the funds
placed on the Deposits.
- in the case where the Selling Stockholders and Pierre
Delamare have the obligation to indemnify Delsopak
pursuant to the terms of this Section 6 (g) due to a
shortfall in the Net Asset Value as determined in
Section 5 (y) of this Agreement, the Escrow shall use
the funds placed on the Deposit to indemnify Delsopak,
so that after such an indemnification, the Net Asset
Value of Delsopak shall be restored at not less than
twelve million French Francs (FF 12,000,000). The
Escrow will have the obligation to indemnify Delsopak
immediately after it will have received the Audit
Report.
- in the case where it results from the Audit Report
that (i) no indemnity is payable to Delsopak by the
Selling Stockholders and Pierre Delamare pursuant to
this Section 6 (g), or (ii) the indemnity payable to
Delsopak by the Selling Stockholders and Pierre
Delamare pursuant to this Section 6 (g) is less than
the funds placed on the Deposit, then the Escrow shall
immediately pay to the Selling Stockholders or Pierre
Delamare, as the case may be, the funds which, after
indemnification, shall remain on the Deposit."
- in the case where the Audit Report established that the
Cash Amount Payable to Delsopak as at 31 March, 1994 was less
than three million seven hundred and forty five thousand French
Francs (FF 3,745,000), then (x) the Escrow shall reduce by the
amount of the indemnity payable to Delsopak pursuant to this
Section 6 (g) or (y) Delsopak shall pay to the Selling
Stockholders or Pierre Delamare, as the case may be, the amount
of the Difference which is greater than the indemnity due to
Delsopak pursuant to this Section 6 (g), if any; provided, and
to the extent, that the Net Asset Value of Delsopak as at 30 April,
1994 is not less than twelve million French Francs (FF 12,000,000)
after giving effect to the Difference."
5. Paragraph (i) of the Section 6 (b) of the Stock Purchase
Agreement is amended as follows:
"(i) for any Losses (other than Losses arising out of
Section 6 (c) or Section 6 (d) or Section 6 (g) or the
representations and warranties contained in Section 5
(s)) unless notice of such Loss has been given to the
Selling Stockholders by Sealed Air or Instapak on or
prior to the expiration of the second anniversary of
the Closing Date; or"
6. The parties hereby agree to the following amendment to
Section 9 (g) of the Stock Purchase Agreement: Section
9 (g) is amended by adding after the words "brokerage
firm" the words "or custodian bank".
7. Miscellaneous
With the exception of the amendments which are the
subject matter of this agreement, the Stock Purchase
Agreement remains unchanged and in full force on all
its provisions.
8. Governing Law
The execution, validity, construction and performance of this
Agreement shall be governed by and construed in accordance with
the laws of France.
IN WITNESS WHEREOF,
the parties have duly executed this Agreement pursuant to due
authorization on 9 May 1994.
FOR SEALED AIR CORPORATION FOR DELAMARE SOVRA
FOR INSTAPAK FRANCE FOR ETABLISSEMENTS PIERRE
DELAMARE ET CIE
PIERRE DELAMARE
EXHIBIT 2.2
PATENT LICENSE AGREEMENT
BETWEEN:
ETABLISSEMENTS PIERRE DELAMARE ET COMPAGNIE, a societe anonyme
with a share capital of FF 250,000 having its registered office
at Criquebeuf Sur Seine (27340) Pont-de-l'Arche, registered at
the Commercial and Company's Registry of Louviers under the
number B 665 650 289.
referred to in this Agreement as the "Grantor,"
AND
DELSOPAK, a societe anonyme with a share capital of FF 15,000,000
having its registered office at Route d'Elbeuf 27340 Criquebeuf-
sur-Seine, Pont de l'Arche, registered at the Commercial and
Company's Registry of Louviers under the number B 393 380 597.
referred to in this Agreement as the "Licensee."
AND
MR. PIERRE DELAMARE, born on 11 July 1937 in
Criquebeuf-sur-Seine, of French nationality, residing at 31
Chemin des Forrieres 27340 Criquebeuf-sur-Seine.
IT HAS BEEN RECITED AS FOLLOWS:
The Grantor has the ownership and free possession of the patents
set out in the list attached in Annex 1 to this agreement,
hereafter referred to as the "Patents."
The Licensee is aware of certain disputes relating to the
Patents, the nature of which has been disclosed to it in writing.
The Licensee has shown interest for, and has the capacity to
produce and to market the devices which form the subject matter
of the Patents and wishes therefore to be able to use the Patents
by way of an exclusive license and to enjoy a purchase option for
the duration of the license. The Licensee is also particularly
interested in the know-how and technical knowledge necessary for
the use of the Patents. The amount of the fee set at ten million
French Francs net of value added tax (VAT) has been calculated
and agreed by the parties in full knowledge of the above and in
particular of the disputes referred to above and shall remain due
whatever the settlement of the said disputes.
The Grantor agrees to grant to the Licensee a license
under the terms and conditions set out hereafter.
AS A RESULT, THE PARTIES HAVE AGREED AS FOLLOWS:
ARTICLE 1 - LICENSE FOR USE OF PATENTS
The Grantor hereby grants to the Licensee, acting as its
exclusive licensee, the right to use, to manufacture and to
market in the Territory (as defined in Article 2), the devices
which form the subject matter of the Patents set out above.
The Licensee shall have the right, but not the obligation, to use
or not to use the Patents over all or part of the Territory
granted.
The Grantor undertakes to provide at no cost to the Licensee all
elements of information and technical knowledge in its
possession, together with any know-how necessary for the use of
the Patents which form the subject matter hereof.
Furthermore, the Grantor undertakes to deliver to the Licensee at
no cost, promptly after signature of this Agreement, all
documents, plans, or notices necessary for the taking of
possession by the Licensee of the know-how and technical
knowledge for the use of the Patents.
The Grantor shall refrain from using, manufacturing, and
marketing in the Territory the devices which form the subject
matter of the Patents set out above, together with any technical
knowledge and any know-how associated with the subject matter of
the Patents for the duration of the exclusivity granted hereby to
the Licensee.
The Grantor declares that it has terminated as at the date hereof
the exclusive license for use which it granted on 10 February
1987 to its subsidiary, DELAMARE SOVRA, by a mutual agreement
with the latter and guarantees the Licensee (i) against any claim
from DELAMARE SOVRA, and (ii) except as otherwise disclosed in
writing, that there is no pending dispute on the Patents and at
the date hereof, the Patents are not subject to any pending
annulment proceedings in the countries where the Patents have
been filed.
ARTICLE 2 - TERRITORY
This license is granted and accepted for the territories covered
by the Patents which are in force at the date hereof (the
"Territory").
ARTICLE 3 - DURATION
This Agreement shall take effect from the date of execution by
the parties.
Except in the event of early termination under the conditions set
out hereafter, this patent license is granted for a duration
corresponding to the duration of the validity of one of the
Patents which shall expire the latest, it being specified that
this Agreement shall not remain in force in a given country of
the Territory beyond the date of expiry of the Patent registered
in such a country.
ARTICLE 4 - FEE
4.1 In consideration for this license, the Licensee undertakes to
pay to the Grantor a fee consisting of a total lump sum of
ten million French Francs (FRF 10,000,000) net of VAT.
4.2 Half of the sum, five million French Francs (FRF 5,000,000)
net of VAT ("the First Instalment") is paid by the Licensee
upon execution of this Agreement by delivery of a certified
cheque. The remaining five million French Francs (FRF
5,000,000) net of VAT ("the Second Instalment") shall be due
on the expiry of a period of two years from execution of this
Agreement, and the Licensee shall have the option of settling
the Second Instalement by way of payment in kind of shares in
SEALED AIR CORPORATION, a Delaware corporation (hereafter
referred to as "SEALED AIR"). The number of shares to be
transferred shall be calculated in accordance with the terms
set out in Article 8 of this Agreement. With regard to the
delivery of SEALED AIR shares to the Grantor for the
settlement of the Second Instalment, the Grantor and SEALED
AIR have entered into a separate agreement which is set forth
in Annex 2 of this Agreement.
4.3 The Licensee provides to the Grantor a bank guarantee (as set
forth in Annex 3 of this Agreement) in respect of the Second
Instalment. The costs of such bank guarantee shall be borne
as to half by the Licensee and half by the Grantor.
ARTICLE 5 - TRANSFER AND SUB-LICENSE
This Agreement may not be subject to any transfer by the Licensee
without the express written agreement of the Grantor, save for
transfers granted in favour of affiliated companies of the
Licensee.
This Agreement may be subject to sub-licenses in favour of third
parties.
The Licensee shall remain, in the two situations envisaged above
in this Article 5, jointly liable to the Grantor for the proper
performance of its obligations under this Agreement.
This Agreement may not be subject to any transfer by the Grantor
without the express written agreement of the Licensee.
ARTICLE 6 - IMPROVEMENTS
If, during the period of the validity of this Agreement,
improvements of any nature whatsoever are made or acquired by the
Grantor in relation to any or all of the elements of one or the other
Patent, such improvements shall be considered to be the property of the
Grantor.
The Grantor undertakes to inform the Licensee of such improvements.
The license granted hereunder shall automatically be extended to
all such improvements, without any increase in the fee arising as
a result.
All improvements made by the Licensee shall be considered as the
property of the Licensee which may, if it so desires, file patent
application at its own expense.
ARTICLE 7 - PURCHASE OPTION
The Licensee shall have the option for the duration of this
Agreement to acquire the Patents under the following conditions:
7.1 The Licensee shall notify the Grantor that it intends to
exercise the option granted hereunder. The transfer shall
take place within 60 days of the said notification.
7.2 If the purchase occurs before the expiry of the term of the
two years provided for the payment of the Second Instalment,
the Licensee shall have the option to exercise its purchase
option for a total price of five million and one hundred
French Francs (FRF 5,000,100) net of VAT, which it may, at
its option, settle by way of payment in kind of SEALED AIR
shares.
The number of SEALED AIR shares to be delivered to the
Grantor shall be calculated in accordance with the terms set
out in article 8 of this Agreement.
7.3 If the purchase occurs after the expiry of the term of the
two years, and payment of the Second Instalment, the Licensee
shall have the option to acquire the Patents for a total
price of one hundred French Francs(FRF 100) net of VAT.
7.4 The transfer of the Patents to the Licensee shall bring
an end to this license, except for the Grantor's obligations
provided for in Article 1 paragraph 5 of this Agreement.
ARTICLE 8 - CALCULATION OF THE NUMBER OF SHARES IN SEALED AIR
CORPORATION
8.1 The number of whole shares of Sealed Air's Common Stock,
par value of 0.01US$ per share ("Sealed Air Common Stock"),
to be delivered to the Grantor in settlement of the fee set
out in Article 4 or of the price of the Patents set out in
Article 7 of this Agreement, if Delsopak so decides, shall be
calculated by multiplying the amount due in French Francs by the
Exchange Rate (as defined hereafter) and by dividing the amount so
obtained by the Average Closing Market Price (as defined hereafter)
and rounding the quotient to the nearest whole share.
The term "Average Closing Market Price" shall mean the
average of the closing market prices for Sealed Air Common
Stock as reported in the "Wall Street Journal" for each of
the five days on which such shares are traded on the New
York Stock Exchange ("Trading Days") immediately preceding
the date which is five Trading Days before the date on which
the payment of the fee (pursuant to article 4) or of the
purchase price of the Patents (pursuant to Article 7) shall
be made.
The term "Exchange Rate" shall mean the "spot" rate of
exchange at which the US Dollar is convertible into French
Francs as reported in the "Wall Street Journal" at the close
of business on the date on which the Average Closing Market
Price is determined.
8.2 No fractional Sealed Air shares shall be delivered to the
Grantor in settlement of the fee set out in Article 4 or
of the price set out in Article 7 of this Agreement. If a
fractional share of Sealed Air Common Stock results from
the calculation set out in 8.1. above, the Grantor shall be
entitled to receive, in lieu thereof, an amount of cash,
in French Francs, calculated by multiplying the Average
Closing Market Price (expressed in French francs) by the
fraction of a share of Sealed Air Common Stock to which it
would otherwise have been entitled.
ARTICLE 9 - ENFORCEABILITY-VALIDITY OF PATENTS
The parties agree that Patents granted under license
hereunder shall be maintained in force by the Grantor, and the
Licensee shall be responsible for the payment of any maintenance
fees or similar charges.
The Licensee and the Grantor undertake not to request that this
Agreement be declared null and void or terminated in the event
that one or other of the Patents are cancelled.
ARTICLE 10 - INFRINGEMENT - PROCEEDINGS
In the event that infringements should occur over the territories
granted to the Licensee, the Grantor, at the request and expense
of the Licensee, undertakes to commence proceedings against the
guilty party.
In such a case, the Licensee shall have the option of joining
itself to such proceedings in order to obtain compensation for
the damages which it will have borne due to the said infringements.
In the event that the Grantor does not start proceedings against
third parties within thirty (30) days of the written request sent
to it by the Licensee, the Licensee shall have the right to start
such proceedings at its own expense.
In any event, the expenses and indemnities or other receipts
which will be derived from the above proceedings will be borne
by/attributed to the Licensee exclusively.
In connection with any action set out under this Article 10, each
of the parties shall, at the request of the other, provide at no
cost any relevant information that it has in its possession, sign
any document or paper that is necessary or useful, and give its
assistance to the other.
ARTICLE 11 - TERMINATION
The Licensee may terminate this Agreement at any moment if (i)
the Grantor does not carry out its contractual obligations, one
month after a formal demand to comply with the same has been
notified by registered letter with acknowledgement of receipt or
a writ served by bailiff remains unanswered, or (ii) the Grantor,
having been declared insolvent, is obliged to cease trading
definitively.
The Grantor may terminate this Agreement only if (i) the Licensee
does not pay the Second Instalment, one month after a formal
demand to comply with the same has been notified by registered
letter with acknowledgement of receipt or a writ served by
bailiff remains unanswered, or (ii) the Licensee, having been
declared insolvent, is obliged to cease trading definitively.
The termination of this Agreement, under this article, shall be
effected by registered letter with acknowledgement of receipt or
by writ served by bailiff and shall take effect as law upon first
presentation without any other formality.
This termination shall be without prejudice to any damages and
interest thereon, nor to any rights and actions that the party
instituting the termination may have against the other party.
ARTICLE 12 - GOVERNING LAW
This Agreement is governed by French law.
ARTICLE 13 - SETTLEMENT OF PROCEEDINGS
Any dispute arising under this Agreement that is not resolved by
negotiation between the parties shall be submitted to arbitration
in accordance with the arbitration rules of the International
Chamber of Commerce. Any such arbitration shall be held in Paris.
The award of the arbitrator in any such proceeding shall be
binding on the parties.
ARTICLE 14 - FORMALITIES
All relevant authorities are given to the bearer of an original
of this Agreement in order to carry out any formalities required
by law and in particular registration at the Registry of Patents.
Made in four copies
On May 9, 1994
At Paris
For ETABLISSEMENTS PIERRE DELAMARE ET CIE
For DELSOPAK
Pierre DELAMARE
ANNEX 2
AGREEMENT
BETWEEN:
SEALED AIR CORPORATION, a Delaware corporation, United States of
America (hereafter referred to as "Sealed Air").
AND
ETABLISSEMENTS PIERRE DELAMARE ET COMPAGNIE, a societe anonyme
with a share capital of FRF 250,000 having its registered office
at Criquebeuf Sur Seine (27340) Pont-de-l'Arche, (hereafter
referred to as "Etablissements P. Delamare").
WHEREAS
Pursuant to a license agreement (hereafter referred to as the
"License Agreement") dated May 9, 1994, Etablissements P.
Delamare has granted to DELSOPAK, a French company having its
registered office at Route d'Elbeuf, 27340 Criquebeuf-sur-Seine,
Pont de l'Arche, (hereafter referred to as "Delsopak"), acting as
exclusive licensee, the right to use, to manufacture and to
market in the Territory (as defined in the License Agreement) the
processes and devices which form the subject matter of the
Patents (as defined in the License Agreement). This exclusive
license has been granted for a flat fee of ten million French
Francs (FRF 10,000,000) net of VAT. The fee is payable in two
instalments of five million French Francs (FRF 5,000,000) net of
VAT each. The second instalment, which is payable on the second
anniversary date of the date of signature of the License
Agreement, may at the option of Delsopak be settled in Sealed Air
shares (hereafter referred to as the "Sealed Air Shares").
Etablissements P. Delamare and Sealed Air set out herein the
conditions under which the Sealed Air Shares may be delivered to
Etablissements P. Delamare.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Representations and Warranties of Etablissements P. Delamare
(a) Etablissements P. Delamare has received (i) a copy of
Sealed Air's Annual Report on Form 10-K as filed with
the Securities and Exchange Commission (without the
exhibits thereto), and of Sealed Air's Annual Report to
Stockholders, each for the year ended December 31,
1992; (ii) a copy of Sealed Air's Proxy Statement dated
March 31, 1993 for the Annual Meeting of Sealed Air's
stockholders held on May 21, 1993; and (iii) a copy of
Sealed Air's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1993, and Etablissements
P. Delamare has had access to such other public
information regarding the business and financial
affairs of Sealed Air as Etablissements P. Delamare has
deemed necessary to enable Etablissements P. Delamare
to make an informed investment decision with respect to
the acquisition of Sealed Air Shares.
(b) Etablissements P. Delamare has such experience in
business and financial matters so as to be able to
evaluate independently the merits and risks of an
investment in the Sealed Air shares, and Etablissements
P. Delamare is able to bear the economic risk of an
investment in the Sealed Air Shares including, without
limiting the generality of the foregoing, the risk of
losing all or any part of Etablissements P. Delamare's
investment in the Sealed Air Shares and the inability
of selling or otherwise transferring or disposing of
the Sealed Air Shares for an indefinite period of time.
(c) Etablissements P. Delamare has been afforded an
opportunity to ask questions about and receive answers
in response concerning the business and financial
affairs of Sealed Air from representatives of Sealed
Air and the opportunity to obtain any additional
publicly available information that Etablissements P.
Delamare desired with respect to Sealed Air.
2. Registration of the Sealed Air Shares and Restriction on
Transfer
(a) Registration Pursuant to Rule 415
As soon as practicable after Etablissements P. Delamare will
have received the Sealed Air Shares pursuant to article 4 of
the License Agreement and in no event later than 30 days
after the date by which Etablissements P. Delamare have
supplied Sealed Air with all information and materials with
respect to Delsopak and Etablissements P. Delamare required
in connection with the filing by Sealed Air of the
registration statement referred to in this Section, Sealed
Air will file a registration statement pursuant to Rule 415
of the regulations under the U.S. Securities Act of 1933, as
amended (the "1933 Act"), relating to the Sealed Air Shares
issued on such date and use its reasonable commercial
efforts to make such registration statement become effective
and qualify the same under the Blue Sky laws of such states
of the United States as may be reasonably requested, as
promptly as practicable after such filing; provided,
however, that Sealed Air shall not be obligated to qualify
as a foreign corporation or as a dealer in securities or to
execute or file any general consent to service of process
under the laws of any such state where it is not so subject.
Sealed Air agrees to use its reasonable commercial efforts
to keep such registration statement effective until the
third anniversary date of the date on which the Sealed Air
Share shall have become deliverable to Etablissements P.
Delamare pursuant to article 4.2 of the License Agreement.
The description of the plan of distribution in each such
registration statement shall be in substantially the form
delivered to, and approved by, Etablissements P. Delamare
prior to such date with such changes therein as may be
required by the U.S. Securities and Exchange Commission.
Etablissements P. Delamare will not be entitled to any other
rights with respect to registration of the Sealed Air
Shares. If Etablissements P. Delamare shall have sold all
of the Sealed Air Shares covered by the registration
statement, it shall promptly notify Sealed Air so that
Sealed Air may terminate the effectiveness of such
registration statement.
(b) Expenses
Subject to the limitations contained in this Section 2 (b)
and except as otherwise specifically provided in this
Section 2, the entire costs and expenses of the registration
and qualification pursuant to Section 2 (a) shall be borne
by Sealed Air. Such costs and expenses shall include the
fees and expenses of counsel for Sealed Air and of its
accountants, all other costs and expenses of Sealed Air
incident to the preparation, printing and filing under the
1933 Act of the registration statement and all amendments
and supplements thereto, the cost of furnishing copies of
each preliminary prospectus, each final prospectus and each
amendment or supplement thereto to underwriters, dealers and
Etablissements P. Delamare, and the costs and expenses
(including fees and disbursements of counsel, and National
Association of Securities Dealers, Inc. and listing fees)
incurred by Sealed Air in connection with the qualification
of the Sealed Air Shares under the Blue Sky laws of various
jurisdictions. Notwithstanding the above, Sealed Air shall
not be required to pay any underwriting or brokerage
discounts, fees or commissions or any fees of counsel for
Etablissements P. Delamare in connection with the
registration or any sale pursuant to Section 2 (a).
(c) Procedures
In the case of each registration or qualification pursuant
to Section 2 (a), Sealed Air will keep Etablissements P.
Delamare advised in writing as to the initiation of
proceedings for such registration and qualification, of
material development with respect to and as to the
completion thereof, and will advise Etablissements P.
Delamare, upon request, of the progress of such proceedings.
(d) Indemnification
Sealed Air will indemnify and hold harmless Etablissements
P. Delamare against any losses, claims, damages, or
liabilities, joint or several, and expenses (including
reasonable costs of investigation) to which Etablissements
P. Delamare [or any persons controlling Etablissements P.
Delamare or any officer and/or director of Etablissements P.
Delamare] may be subject, under the 1933 Act or otherwise,
insofar as any thereof arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which
such shares were registered under the 1933 Act pursuant to
Section 2 (a), any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement
or omission or alleged omission based upon information,
including without limitation any information provided as to
Delsopak, furnished to Sealed Air in writing by
Etablissements P. Delamare for inclusion in such
registration statement (with respect to which information
Etablissements P. Delamare shall so indemnify and hold
harmless Sealed Air and each person, if any, who controls
Sealed Air within the meaning of the 1933 Act). In order to
provide for just and equitable contribution in circumstances
in which the indemnification provided for above in this
Section 2 (d) is due in accordance with its terms but is
unavailable, Sealed Air or Etablissements P. Delamare as the
case may be, shall contribute to the aggregate losses,
claims, damages and liabilities incurred (including legal or
other expenses reasonably incurred in connection with
investigating or defending the same). In determining the
amount of contribution to which the respective parties are
entitled, there shall be considered the parties' relative
knowledge and access to information concerning the matter
with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate
in the circumstances; provided, however, that no person
guilty of fraudulent misrepresentations (within the meaning
of paragraph 11 (f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentations.
(e) Etablissements P. Delamare's Representation
Etablissements P. Delamare represents and warrants to Sealed
Air that any acquisition of Sealed Air Shares by
Etablissements P. Delamare pursuant to the License Agreement
will be, at the time of acquisition, for its own account and
that Etablissements P. Delamare will hold any Sealed Air
Shares received by it pursuant to the License Agreement for
its own account and not with a view to any resale or
distribution thereof in any manner not in compliance with
the 1933 Act and the rules and regulations thereunder.
Etablissements P. Delamare agrees with Sealed Air that:
(i) Etablissements P. Delamare is neither a citizen nor a
resident of the United States;
(ii) Etablissements P. Delamare will not offer to sell, sell
or otherwise dispose of any Sealed Air Shares except
(x) pursuant to an effective registration statement
under the 1933 Act, (y) in compliance with Rule 144
under the 1944 Act, or (z) in a transaction that, in
the opinion of counsel reasonably satisfactory to
Sealed Air, does not require registration of such
Sealed Air Shares under the 1933 Act; and
(iii) in the event of any disposition not made pursuant
to an offering registered under the 1933 Act,
Etablissements P. Delamare will indemnify and hold
harmless Sealed Air and its officers and directors
from and against any and all losses, damages or
liabilities for which they, or any one of them,
shall be or become liable under the 1933 Act or
otherwise as a result of such disposition, and
will reimburse each of them for any legal or other
expenses incurred by them in connection with
defending against any claim or suit for losses,
damages or liabilities arising out of or based on
any distribution or resale of such Sealed Air
Shares, or any part thereof, by Etablissements P.
Delamare in violation of the 1933 Act, or in
breach of the representations set forth (it being
understood that Etablissements P. Delamare shall
have the right to participate, at Etablissements
P. Delamare's expense, in the defense of any such
claim).
(f) Legend on Certificates
(i) The certificates representing Sealed Air Shares (and
any certificate representing Sealed Air Common Stock
issued in exchange therefore or any certificate
representing Sealed Air Shares sold in compliance
herewith unless (x) Sealed Air shall have obtained an
opinion of counsel satisfactory to it that such legend
is not necessary under the 1933 Act or (y) such shares
are sold pursuant to an effective registration
statement in accordance with Section 2 (a)) will bear a
legend in substantially the following form:
"The Shares represented by this Certificate
have not been registered under the Securities
Act of 1933, but have been issued or
transferred to the registered owner pursuant
to an exemption from registration thereunder.
No transfer or assignment of any such shares
shall be valid or effective, and the issuer
of these shares shall not be required to give
any effect to any transfer or attempted
transfer or assignment of these shares,
including, without limitation, a transfer by
operation of law, unless (a) the issuer shall
have first obtained an opinion of counsel
satisfactory to it that the shares may be
transferred without registration under such
Act, (b) the shares are sold in compliance
with Rule 144 under such Act and the issuer
has been supplied with documentation
indicating compliance with Rule 144, or (c)
the shares are registered under such Act."
Sealed Air agrees that within twelve (12) business days
after receipt of any opinion referred to in the legend
described above, it will (A) use its reasonable
commercial efforts to cause its transfer agent to issue
certificates without such legend, or (B) notify
Etablissements P. Delamare supplying such opinion that
such opinion is not reasonably satisfactory to Sealed
Air. No such legend shall be endorsed on any such
certificates which, when issued, are no longer subject
to the restrictions described in such legend.
Etablissements P. Delamare agrees that Sealed Air may
give such stop-transfer orders as may be necessary or
desirable to its transfer agent to implement or reflect
the provisions of this Section with respect to the
Sealed Air Shares.
(ii) Upon and at any time during the effectiveness of the
registration statement referred to in Section 2 (a),
Etablissements P. Delamare may deliver the certificates
for such Sealed Air Shares covered by the registration
statement containing the legend set forth in paragraph
(i) of this Section 2 (f), together with a request that
new certificates not bearing such legend and
representing such Sealed Air Shares be issued to such
holder in exchange for such legended certificates. Such
request shall set forth Etablissements P. Delamare's
understanding and agreement that delivery by Sealed Air
of such unlegended certificates shall not release
Etablissements P. Delamare from its obligations under
this Agreement or any certificate or agreement
delivered pursuant hereto or under the 1933 Act.
Promptly (and in any event within 12 business days)
after receipt of such legended certificates and such
request, Sealed Air shall use its reasonable commercial
efforts to cause its transfer agent to issue and
deliver such new certificates. Etablissements P.
Delamare agrees that if, at any time after receiving
such unlegended certificates, the registration
statement is not effective, Etablissements P. Delamare
will thereafter sell such Sealed Air Shares in
compliance with Rule 144 under the 1933 Act, and
Etablissements P. Delamare will, upon request by Sealed
Air, surrender the certificates for the Sealed Air
Shares in order that new certificates containing the
legend set forth in paragraph (i) of this Section 2 (f)
may be issued to Etablissements P. Delamare in exchange
therefore.
(g) Certain Agreements Relating to the Resale of Sealed Air
Shares
On or before the effective date of the Registration
Statement Etablissements P. Delamare shall deposit with a
brokerage firm reasonably acceptable to Sealed Air and
Delsopak the Sealed Air Shares covered by such registration
statement. If, within 30 days after Sealed Air has given
notice of the effectiveness of such registration statement
to Etablissements P. Delamare, Etablissements P. Delamare
cause such brokerage firm to sell any of the Sealed Air
Shares covered by such registration statement, then
Etablissements P. Delamare shall cause such brokerage firm
to deliver to each of them and to Sealed Air a copy of each
confirmation of the sale of such Sealed Air Shares. If the
net proceeds of the sale of such shares divided by the
number of shares sold within such 30-day period exceeds the
Average Closing Market Price as set out in article 8.1 of
the License Agreement (expressed in U.S. Dollars) at which
such Sealed Air Shares were issued, then Etablissements P.
Delamare shall cause such brokerage firm to pay such excess
amount to Delsopak. If the net proceeds of the sale of such
shares divided by the number of shares sold within such 30-
day period is less than the Average Closing Market Price as
set out in article 8.1 of the License Agreement (expressed
in U.S. Dollars) at which such Sealed Air Shares were
issued, Sealed Air shall cause Delsopak to pay the amount of
such shortfall to Etablissements P. Delamare. Etablissements
P. Delamare shall advise Sealed Air from time to time of the
number of Sealed Air Shares covered by each registration
statement that they have sold or otherwise disposed of.
IN WITNESS WHEREOF,
the parties have duly executed this agreement pursuant to
due authorization on May 9, 1994.
FOR SEALED AIR FOR ETABLISSEMENTS P. DELAMARE
EXHIBIT 5
SEALED AIR CORPORATION
PARK 80 EAST
SADDLE BROOK, NEW JERSEY 07662-5291
TELEPHONE (201) 791-7600/FAX (201) 703-4205
June 17, 1994
Sealed Air Corporation
Park 80 East
Saddle Brook, N.J. 07662
Dear Sirs:
I am the General Counsel and Secretary of Sealed Air
Corporation, a Delaware corporation (the "Corporation"), and as
such have represented the Corporation in connection with a
Registration Statement on Form S-3 (the "Registration Statement")
of the Corporation providing for the registration under the
Securities Act of 1933, as amended, of 45,678 shares (the
"Shares") of the Corporation's Common Stock, par value $0.01 per
share (the "Common Stock"), that are being sold for the account
of the Selling Stockholders referred to below.
All of the shares covered by the Registration Statement were
issued by the Corporation pursuant to a Stock Purchase Agreement
dated as of February 25, 1994, as amended (the "Stock Purchase
Agreement"), between the Corporation, Instapak France S.A., a
French societe anonyme that is a wholly-owned subsidiary of the
Corporation ("Instapak"), Delamare Sovra S.A., and Etablissements
Pierre Delamare et Compagnie S.A., each of the latter two
companies being a French societe anonyme (the latter two
companies being collectively referred to herein as the "Selling
Stockholders"). Pursuant to the Stock Purchase Agreement, the
Corporation acquired all of the outstanding capital stock of
Delsopak S.A. (the "Acquisition"), a French societe anonyme
formed by the Selling Stockholders to conduct the packaging
business carried on prior to such acquisition by the Selling
Stockholders.
As General Counsel for the Corporation, in addition to
participating in the preparation of the Registration Statement, I
have reviewed the resolutions adopted by the Board of Directors
of the Corporation on December 16, 1993 that approved the
execution, delivery and performance of the Stock Purchase
Agreement and authorized the issuance of the Shares. I have also
reviewed such corporate records, documents, instruments and
certificates and have made such other inquiries as I have
considered necessary in order to furnish a basis for rendering
this opinion.
Based on the foregoing, I am of opinion that:
1. The Corporation is duly incorporated and validly
existing as a corporation in good standing under the laws of the
State of Delaware.
2. The Shares are and, when sold pursuant to the
Registration Statement will be, legally issued, fully paid and
nonassessable shares of Common Stock of the Corporation.
I hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 5 to the
Registration Statement and to the reference to me under the
caption "Legal Opinion" in the Prospectus forming a part thereof.
I wish to advise you that I am a member of the Bar of
the State of New York.
Very truly yours,
ROBERT M. GRACE, JR.
General Counsel and Secretary
RMG/sra
EXHIBIT 23.1
Independent Auditor's Consent
The Board of Directors
Sealed Air Corporation:
We consent to the use of our reports dated January 19, 1994 on
the consolidated financial statements and related schedules of
Sealed Air Corporation and subsidiaries as of December 31, 1993
and 1992, and for each of the years in the three-year period then
ended incorporated herein by reference and to the reference to
our Firm under the heading "Experts" in the prospectus. Our
report on the aforementioned consolidated financial statements
refers to a change in the Company's method of accounting for income
taxes in 1993.
KPMG Peat Marwick
Short Hills, New Jersey
June 17, 1994
