As Filed with the Securities and Exchange Commission October 3, 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)
Delaware No. 22-1682767
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
Saddle Brook, New Jersey 07663-5291 (201) 791-7600
(Address and Telephone Number of Principal Executive Offices)
Robert M. Grace, Jr., Esq.
General Counsel and Secretary
Sealed Air Corporation
Park 80 East, Saddle Brook, New Jersey 07663-5291
(201) 791-7600
(Name, Address and Telephone Number of Agent for Service)
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
class of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price aggregate registration
be registered registered per unit* offering price fee
Common Stock- 11,079 $33.25 $368,376.75 $127.03
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 September
28, 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 REIGSTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION
8(A), MAY DETERMINE.
<PAGE>
Prospectus
11,079 SHARES
SEALED AIR CORPORATION
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
This Prospectus relates to 11,079 outstanding shares (the
"Shares") 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 a stockholder (the "Selling Stockholder") of
Sealed Air. See "Plan of Distribution" for a brief description 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 , 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 , 1994 .
Subject to Completion October 3, 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 laws 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 hereby 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 Reports on Form 10-Q for the quarters
ended March 31, 1994 and June 30, 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
2
<PAGE>
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 herein or 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 07663-5291
(TELEPHONE NUMBER 201-791-7600).
3
<PAGE>
THE COMPANY
Sealed Air Corporation and its subsidiaries are engaged primarily
in the manufacture and marketing of protective packaging materials and systems.
Originally formed in 1960, Sealed Air is incorporated in the State
of Delaware and has its principal executive office at Park 80 East, Saddle
Brook, New Jersey 07663-5291 (Telephone: 201-791-7600).
SELLING STOCKHOLDER
The shares subject to this offering (the "Shares"), as listed
below, may be offered hereunder from time to time by the Selling Stockholder
named below so long as the Registration Statement of which this Prospectus
forms a part remains effective. Sealed Air has agreed with the Selling
Stockholder to use its commercially reasonable efforts to keep the
Registration Statement of which this Prospectus forms a part effective until
September 8, 1997.
Name of Selling Number of Shares Number of Shares
Stockholder Held Prior to Subject to This
This Offering Offering
Aud Rolseth Sanner 11,079 11,079
All of the shares covered by this Prospectus were issued by Sealed
Air pursuant to a Stock Purchase Agreement dated as of May 30, 1994, as
amended (the "Stock Purchase Agreement"), between Sealed Air B.V., a
Netherlands company and a wholly-owned subsidiary of Sealed Air (the
"Purchaser"), Aud Rolseth Sanner, a Norwegian individual (the "Selling
Stockholder"), and Sealed Air, pursuant to which the Purchaser acquired all
of the outstanding shares of Emballasje-Teknikk AS, a Norwegian company (the
"Acquired Company"), on September 8, 1994 (the "Emtek Acquisition"). The
Stock Purchase Agreement contains mutual indemnification provisions between
Sealed Air and the Selling Stockholder covering this registration and
offering.
The Selling Stockholder did not hold any position or have a material
relationship with Sealed Air or any affiliate of Sealed Air during the three
years preceding the consummation of the Emtek Acquisition. Since the Emtek
Acquisition, the Selling Stockholder has served as the general manager and a
director of the Acquired Company, which as a result of the Emtek Acquisition
is an indirect wholly-owned subsidiary of Sealed Air.
Based on information furnished to Sealed Air by the Selling
Stockholder, the only shares of Sealed Air Common Stock owned by her at the
commencement of this offering were the shares which she acquired in the Emtek
Acquisition. Under the Stock Purchase Agreement, the purchase price is to
be paid in four installments, the first of which was paid at the closing on
September 8, 1994, with the others payable on January 25, 1995, January 25,
1996 and September 8, 1997. Each installment can be paid, at the Purchaser's
option, in cash, in shares of Sealed Air's Common Stock valued at the time
such shares are issued, or in a combination of cash and shares of Sealed Air's
Common Stock, subject to a cumulative limit on future payments in
4
<PAGE>
shares of Sealed Air's Common Stock of shares valued at 4,875,000 Norwegian
krona. Sealed Air has agreed with the Selling Stockholder that, if additional
shares of Sealed Air's Common Stock are issued in payment of future
installments due under the Stock Purchase Agreement, it will file registration
statements with respect to the shares so issued so as to permit their resale
by the Selling Stockholder on substantially the same terms and conditions as
this Registration Statement.
PLAN OF DISTRIBUTION
Sealed Air has been advised that the Shares may be sold from time to
time by the Selling Stockholder or by its 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, 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 Stockholder 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 the
Shares. The Selling Stockholder and any brokers or dealers that participate
with the Selling Stockholder in effecting transactions in the Shares may be
deemed, without so admitting, to be underwriters. Any profits received by
the Selling Stockholder 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 was the beneficial owner of approximately 45,904
shares of Sealed Air Common Stock.
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 LLP, independent
certified public accountants, and upon the authority of such firm as experts
in auditing and accounting. The report of KPMG Peat Marwick LLP covering the
December 31, 1993 consolidated financial statements refers to a change in
Sealed Air's method of accounting for income taxes.
5
<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..................................$ 127.03
Accounting Fees and Expenses....................... 7,500.00
Miscellaneous.......................................1,000.00
$ 8,627.03
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
II-1
<PAGE>
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 stockholder named in the Prospectus
have agreed to indemnify each other, as well as in the case of the selling
stockholder 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 to this
Registration Statement.
Item 16. Exhibits.
Exhibit Number Description
2 Stock Purchase Agreement dated as of May 30, 1994 between the
Registrant, Sealed Air B.V. and Aud Rolseth Sanner, and
Amendment No. 1 to such Stock Purchase Agreement dated as of
September 8, 1994.
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 LLP.
23.2 Consent of Robert M. Grace, Jr., General Counsel and Secretary,
Sealed Air Corporation (Contained in opinion filed as Exhibit
5).
II-2
<PAGE>
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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if 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.
II-3
<PAGE>
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.
II-4
<PAGE>
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 3rd day of October, 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 October 3, 1994
T.J. Dermot Dunphy (Principal Executive Officer)
WILLIAM V. HICKEY Senior Vice President- October 3, 1994
William V. Hickey Finance (Principal Financial
and Accounting Officer)
JOHN K. CASTLE Director October 3, 1994
John K. Castle
LAWRENCE R. CODEY Director October 3, 1994
Lawrence R. Codey
II-5
<PAGE>
CHARLES F. FARRELL, JR. Director October 3, 1994
Charles F. Farrell, Jr.
DAVID FREEMAN Director October 3, 1994
David Freeman
Director
ALAN H. MILLER Director October 3, 1994
Alan H. Miller
R. L. SAN SOUCIE Director October 3, 1994
R.L. San Soucie
II-6
STOCK PURCHASE
AGREEMENT
STOCK PURCHASE AGREEMENT
INDEX
Page
1. Purchase and Sale 1
(a) Purchase Price 1
(b) Installment Payments 2
(c) Payment of the Purchase Price 2
(d) Determination of Sealed Air Shares 3
2. Closing 3
(a) Time and Place of Closing 3
(b) Exchange of Stock Certificates; Method of Payment 4
(c) Delivery Constitutes Affirmation 4
3. Conditions to the Obligations of Sealed Air, Purchaser
and Selling Stockholder 5
(a) Conditions to Sealed Air's and Purchaser's
Obligations 5
(b) Conditions to the Selling Stockholder's
Obligations 7
4. Representations, Warranties and Covenants of the 8
Selling Stockholder
5. Additional Representations, Warranties and Covenants 9
of the Selling Stockholder
(a) Organization, Standing, etc. 9
(b) Capitalization 9
(c) Charter Documents and Bylaws 10
(d) Outstanding Options Warrants or Other Rights 10
(e) Subsidiaries 10
(f) Record Ownership 10
(g) Financial Statements 10
(h) Certain Changes or Events 11
(i) Title to Properties: Liens 12
(j) Adequacy of Patents and Other Rights 13
(k) Litigation, Etc. 14
(l) Accounts Receivable 14
(m) Inventory 14
(n) Governmental Consents, etc. 15
(o) Disclosure 15
(p) Compliance With Other Instruments etc. 15
(q) Compliance With Law 15
(r) Existing Contracts 16
(s) Outstanding Indebtedness 17
(t) Taxes etc. 17
(u) Insurance 17
(v) Employee Benefits 17
(w) Miscellaneous 18
6. Indemnification 18
(a) Indemnification 18
(b) Liability of Indemnification 19
(c) Tax etc. 19
(d) Survival of Representations and Warranties 20
(e) Right to set-off 20
7. Representations and Warranties of the Purchaser 20
and Sealed Air
(a) Due Incorporation 20
(b) Due Authorization, Etc. 21
(c) No Violation 21
(d) Litigation 21
(e) Reports and Financial Statements 21
8. Certain Agreements 22
(a) Conduct of Business of Emtek and E.T. Bygg Prior 22
to the Closing etc.
(b) Delivery of Minute Books and Corporate Records; 24
Resignation of Directors.
(c) Listing of the Sealed Air Shares. 24
(d) Certain Tax Obligations 24
(e) Non-Competition 25
(f) Norpapp 25
9. Registration of the Sealed Air Shares and Restriction 26
on Transfer
(a) Registration Pursuant to Rule 415 26
(b) Expenses 26
(c) Procedures 26
(d) Indemnification 27
(e) Selling Stockholder's Representation 28
(f) Legend on Certificates 28
10. Expenses 30
11. General 30
(a) Corporation Examination; Investigations 30
(b) Notices 30
(c) Waivers 31
(d) Amendments 31
(e) Binding Effects 31
(f) Governing Law 31
(g) No Brokers or Finders 31
(h) Conduct of Business of Sealed Air 32
(i) Furnishing of Information 32
(j) Dispute resolution 32
Exhibits:
Exhibit A: Form of Employment Agreement
Exhibit B: Form of Lease
Exhibit C: Form of Guaranty
Exhibit D: Disclosure Schedule
<PAGE>
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of May 30, 1994 among SEALED AIR B.V., a
limited liability
company organized and existing under the laws of the Netherlands
(the
"Purchaser"), and AUD ROLSETH SANNER, a Norwegian individual (the
"Selling
Stockholder"), joined in for the purposes set forth in this
Agreement by
SEALED AIR CORPORATION, a Delaware corporation ("Sealed
Air").
WITNESSETH:
WHEREAS, EMBALLASJE-TEKNIKK AS, a company with limited
liability organized and existing under the laws of Norway
("Emtek"), has authorized capitalization of 10.000 common
shares, with a nominal value of NOK 1,000 each ("Emtek
Capital Stock");
WHEREAS, E.T. BYGG AS, a company with limited liability
organized and existing under the laws of Norway
("E.T.Bygg"), has authorized capitalization of 50 common
shares, with a nominal value of NOK 1,000 each (E.T. Bygg
Capital Stock");
WHEREAS, the Selling Stockholder owns all of the shares of
Emtek Capital Stock (the "Emtek Shares") and E.T. Bygg
Capital Stock (the "E.T. Bygg Shares"); and
WHEREAS, on the terms and subject to the conditions set
forth in this Agreement, the Selling Stockholder desires to
sell the Emtek Shares and the E.T.Bygg Shares to the
Purchaser, and the Purchaser desires to purchase all of the
Emtek Shares and all the E.T. Bygg Shares from the Selling
Stockholder;
NOW, THEREFORE, the parties agree as follows:
1. Purchase and Sale
(a) Purchase Price. Subject to the terms and conditions
contained in this Agreement, (i) on the Closing Date (as
hereinafter defined), the Purchaser shall purchase from the
Selling Stockholder, and the Selling Stockholder shall sell
to the Purchaser, the Emtek Shares, which shares shall, on
the Closing Date, constitute all of the shares of Emtek
Capital Stock, and (ii) if the Closing shall have occurred
on the Closing Date, the Purchaser shall on January 25, 1997
purchase from the Selling Stockholder, and the Selling
Stockholder shall sell to the Purchaser, the E.T. Bygg
Shares, which shares shall, on such date, constitute all of
the shares of the E.T. Bygg Capital Stock, in exchange for
NOK 29,500,000, reduced by possible dividends and tax as
provided for in Section 1(c), (the "Purchase Price"),
allocated as follows:
(m) NOK 29,000,000 for the Emtek Shares,
(n) NOK 500,000 for the E. T. Bygg Shares.
(b) Installment Payments: The portion of the Purchase Price
allocated to the Emtek Shares shall be payable in installments as
follows:
(w) NOK 14,500,000, reduced by possible dividends and tax
as provided for in Section 1(c), on the Closing
Date(the "First Installment");
(x) NOK 5,000,000 on January 25, 1995 (the "Second
Installment");
(y) NOK 5,000,000 on January 25, 1996 (the "Third
Installment");
(z) NOK 4,500,000 on the third anniversary of the Closing
(the "Fourth Installment").
(c) Payment of the Purchase Price. The Purchase Price shall
be paid in cash by wire transfer to the account of the
Selling Stockholder or by delivery to the Selling
Stockholder of a bank check; provided that the Purchaser
shall have the option to pay up to NOK 7,375,000 of the
Purchase Price allocated to the Emtek Shares by delivering
to the Selling Stockholder in payment of all or any portion
of any installment of the Purchase Price a number of whole
shares of Sealed Air's Common Stock, par value USD 0.01 per
share ("Sealed Air Common Stock"), determined pursuant to
Section 1(d)(i) of this Agreement; provided further that
not less than NOK 12,000,000 of the First Installment shall be
paid in cash. Any tax consequences ("korreksjonsskatt") for
Emtek due to dividend paid to the Selling Stockholder for the
year ended December 31, 1993, based upon untaxed retained
earnings shall reduce the Purchase Price krone by krone. The
Purchaser has the right to set-off against the Second, Third or
Fourth Installment with any claim the Purchaser or Sealed Air may
have against the Selling Stockholder as at the due date of such
installment.
(d) Determination of Sealed Air Shares.
(i) The aggregate number of whole shares (the "Sealed Air
Shares") of Sealed Air Common Stock to be delivered to the
Selling Stockholder in payment, at the Purchaser's option, of all
or a portion of the First Installment, the Second Installment,
the Third Installment or the Fourth Installment, as the case may
be, shall be determined by dividing the portion of such
installment of the Purchase Price to be paid in Sealed Air Shares
by the Average Closing Market Price (as hereinafter defined)
expressed in Norwegian Kroner and rounding the quotient to the
next lowest 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
(the "Determination Date") which is ten Trading Days before the
date on which such shares are to be delivered to the Selling
Stockholder. The exchange rate that shall be applied to express
the Average Closing Market Price in Norwegian Kroner shall be the
spot rate of exchange for the conversion of US Dollars into
Norwegian Kroner as reported in The Wall Street Journal at the
close of business on the Determination Date.
(ii) No fractional Sealed Air Shares shall be delivered to the
Selling Stockholder. If a fractional share of Sealed Air Common
Stock would be issuable to the Selling Stockholder pursuant to
Section 1 (d) (i), the Selling Stockholder shall be entitled to
receive in lieu thereof, without duplication, as part of the
Purchase Price, an amount in cash determined by multiplying the
Average Closing Market Price (expressed in NOK) by the fraction
of a share of Sealed Air Common Stock to which the Selling
Stockholder would otherwise have been entitled.
2. Closing
(a) Time and Place of Closing. The Closing under this Agreement
(the "Closing") shall take place, unless the Purchaser, Sealed
Air and the Selling Stockholder agree upon another date or place,
at the offices of Wikborg, Rein & Co., Kronprinsesse Marthas
Plass 1, N-0117 Oslo, at 10:00 A.M., local time, on a date (the
"Closing Date") to be mutually agreed upon after the conditions
set forth in Sections 3(a) and 3(b) shall have been satisfied,
which date shall, unless otherwise agreed, not be later than 31
December, 1994. The parties each agree to use all reasonable
commercial efforts to cause the conditions set forth in Sections
3(a) and 3(b) to be satisfied as soon as possible.
(b) Exchange of Stock Certificates; Method of Payment
(i) At the Closing, subject to the satisfaction on or before the
Closing Date of the conditions set forth in Section 3:
(x) the Selling Stockholder shall deliver to the Purchaser
a certificate for the Emtek Shares registered in the
name of the Purchaser and a written confirmation from
her counsel that he holds the share certificates of
E.T. Bygg in escrow and will hold them in escrow until
delivery to the Purchaser pursuant to this Agreement;
and
(y) the Purchaser shall deliver to the Selling Stockholder
either (A) an amount in cash equal to the First
Installment or (B) a certificate, registered in the
name of the Selling Stockholder, covering the number of
whole Sealed Air Shares as computed pursuant to Section
1(d)(i) for the portion of the First Installment to be
paid by the delivery of Sealed Air Shares with the
balance of such First Installment to be paid in cash.
(ii) On January 25, 1997, the Selling Stockholder shall deliver
to the Purchaser a certificate for the E.T. Bygg Shares,
registered in the name of the Purchaser, and the Purchaser shall
deliver to the Selling Stockholder the amount of NOK 500,000 in
payment therefor.
(c) Delivery Constitutes Affirmation. The delivery to the
Purchaser pursuant to Section 2(b)(i) or Section 2(b)(ii), as the
case may be, of the certificates for the Emtek Shares and the
E.T. Bygg Shares shall constitute an affirmation by the Selling
Stockholder (i) that the representations and warranties of the
Selling Stockholder contained in this Agreement remain true and
accurate on the Closing Date with respect to the Emtek shares and
on the date of delivery with respect to the E.T. Bygg Shares and
(ii) that the Selling Stockholder has duly performed or caused to
be performed all covenants, conditions and obligations to be
performed or satisfied on or before either such date under this
Agreement by the Selling Stockholder, Emtek or E.T. Bygg.
3. Conditions to the Obligations of Sealed Air, the Purchaser
and the Selling Stockholder
(a) Conditions to Sealed Air's and the Purchaser's Obligations.
The obligations of Sealed Air and the Purchaser to purchase the
Emtek Shares and E.T. Bygg Shares and to effect the Closing are
subject to the satisfaction, on or before the Closing Date and
the date of transfer of the E.T. Bygg Shares, of the following
conditions:
(i) Board Approval. Sealed Air's Board of Directors shall have
approved the transactions contemplated by this Agreement.
(ii) Listing of the Sealed Air Shares. The Selling Stockholder
shall have provided to Sealed Air such information as is
necessary to list the Sealed Air Shares on the New York Stock
Exchange prior to the Closing.
(iii) Employment Matters. The Selling Stockholder shall have
entered into an Employment Agreement dated the Closing Date with
Emtek on substantially the terms and conditions set forth in the
agreement attached hereto as Exhibit A.
(iv) Lease of Facility. Emtek and E.T. Bygg shall have entered
into a lease for the facility currently occupied by Emtek on
substantially the terms and conditions set forth in Exhibit B
(the "Lease").
(v) Deposit of E.T. Bygg Shares Certificates. The Purchaser or
Sealed Air shall have received a written confirmation of the
Selling Stockholder's counsel that he holds the E.T. Bygg share
certificates in escrow and that he will hold them in escrow until
delivery of the share certificates to the Purchaser pursuant to
this Agreement.
(vi) Government Approval. The Purchaser and Sealed Air shall have
received all necessary approvals, permits and concessions from
the Norwegian authorities to enable the parties to carry out the
terms of this Agreement and the Lease, in form and substance
satisfactory to Sealed Air, and all of such approvals, permits
and concessions shall remain in full force and effect.
(vii) Advances and Loans. No advances or loans by Emtek or E.T.
Bygg to the Selling Stockholder or to employees, affiliates or
agents of Emtek, E.T. Bygg or the Selling Stockholder shall be
outstanding.
(viii) Due Diligence. Sealed Air shall have completed a due
diligence review of Emtek and E.T. Bygg including without
limitation a financial review or audit by KPMG Peat Marwick or
its affiliate of Emtek and E.T. Bygg's financial condition, which
review and audit shall be satisfactory to Sealed Air in all
material respects.
(ix) 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 and the Lease 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 or the Lease which, in the opinion
of counsel to and in the judgment of the Purchaser or Sealed Air,
makes it impracticable or inadvisable on the part of the
Purchaser or Sealed Air to proceed with the transactions
contemplated by this Agreement. The Purchaser, Sealed Air and the
Selling Stockholder shall have obtained all consents and permits,
if any are required, from third parties in connection with the
performance of this Agreement and the Lease (including without
limitation of Emtek's or E.T. Bygg's lenders or other creditors).
(x) Current Financial Statements. Emtek and E.T. Bygg shall have
delivered to the Purchaser and Sealed Air unaudited balance
sheets as of the most recent month-end preceding the Closing Date
for which such statements are available (in accordance with the
ordinary practices of Emtek and E.T. Bygg) and the related
unaudited statements of income, stockholders' equity and changes
in financial position for the month and for the cumulative
accounting period then ended, which financial statements shall be
certified by the Selling Stockholder.
(xi) No Material Adverse Change. There shall have been no
material adverse change in the business, assets or prospects,
financial or otherwise, of Emtek or E.T. Bygg since December 31,
1993. For the purpose of determining "material adverse change"
the principles applied under Section 36 of the Norwegian
Agreement Act 1918 shall apply.
(xii) Accuracy of Representations and Warranties. The
representations and warranties of the Selling Stockholder
contained in this Agreement and the Lease shall be true and
accurate on the Closing Date as if made on such date.
(xiii) Performance of Agreements. The Selling Stockholder shall
have duly performed, and shall have caused Emtek and E.T. Bygg to
duly perform all covenants and obligations to be performed by
them under this Agreement.
(b) Conditions to the Selling Stockholder's Obligations. The
obligations of the Selling Stockholder to sell the Emtek Shares
and the E.T. Bygg Shares 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. If the Selling Stockholder has
performed her obligation under Section 3 (a) (ii), she shall not
be obligated to accept any Sealed Air Shares paid as part of the
Purchase Price, unless such Sealed Air Shares shall have been
authorized for listing on the New York Stock Exchange upon
official notice of issuance.
(ii) Bank Guaranty. The Purchaser shall have furnished to the
Selling Stockholder a Guaranty of the payment of the Second
Installment, the Third Installment and the Fourth Installment in
substantially the terms of Exhibit C hereto or such other terms
and with a bank that shall be mutually acceptable to the Selling
Stockholder and the Purchaser. It being understood that the
Guaranty will provide for payment net of any amount set-off under
Section 6 (e). The Purchaser shall bear 50% of the cost of such
Guaranty, and the Selling Stockholder will bear the balance.
(iii) Accuracy of Representations and Warranties. The
representations and warranties of Sealed Air 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).
(iv) Performance of Agreements. The Purchaser and Sealed Air
shall have duly performed all covenants and obligations to be
performed by it under this Agreement on or before the Closing
Date.
4. Representations, Warranties and Covenants of the Selling
Stockholder.
The Selling Stockholder represents and warrants to and covenants
with Sealed Air as follows:
(a) The Selling Stockholder has the full legal right, power and
authority to sell, assign and transfer the Emtek Shares and E.T.
Bygg Shares.
(b) The Emtek Shares and E.T. Bygg Shares are, and at the time of
the transfer will be, owned free and clear of all restrictions on
transfer, liens, claims, equities, security interests and
encumbrances of any kind or nature whatsoever, and assignment and
delivery of such shares to the Purchaser will transfer to the
Purchaser 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 the Selling Stockholder's legal, valid and
binding obligation, enforceable against the Selling Stockholder
in accordance with its terms.
(d) The execution, delivery and performance of this Agreement by
the 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 the Selling Stockholder is a party or
by which the Selling Stockholder is bound or affected.
(e) The Selling Stockholder and her auditor and counsel have
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, 1993, a copy
of Sealed Air's Proxy Statement dated March 30, 1994 for the
Annual Meeting of Sealed Air's stockholders to be held on May 20,
1994, and the Selling Stockholder and her auditor and counsel
have had access to such other public information regarding the
business and financial affairs of Sealed Air as the Selling
Stockholder has deemed necessary to enable the Selling
Stockholder to make an informed investment decision with respect
to the acquisition of the Sealed Air Shares.
(f) The Selling Stockholder and/or her auditor and counsel have
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 the 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 the 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) The Selling Stockholder and/or her auditor or counsel have
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 and/or her auditor or
counsel desired with respect to Sealed Air.
5. Additional Representations, Warranties and Covenants of the
Selling Stockholder.
The Selling Stockholder represents and warrants to and covenants
with the Purchaser and Sealed Air as follows:
(a) Organization. Standing, Etc. Each of Emtek and E.T. Bygg is a
duly organized and validly existing corporation in good standing
under the laws of Norway 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) Capitalization. Emtek has an authorized capitalization of
10.000 shares of Emtek Capital Stock, par value NOK 1,000 per
share. E.T. Bygg has an authorized capitalization of 50 shares of
E.T. Bygg Capital Stock, par value NOK 1,000 per share. No shares
of Emtek Capital Stock or E.T. Bygg Capital Stock are held in
treasury. The outstanding shares of Emtek Capital Stock and E.T.
Bygg Capital Stock are validly issued, fully paid and
non-assessable with no personal liability attaching to the
ownership thereof.
(c) Charter Documents and Bylaws. The Selling Stockholder has
delivered to Sealed Air a true, correct and complete copy of the
Articles of Association (including all amendments thereto) of
Emtek and E.T. Bygg. No action or proceeding is pending or
contemplated for the amendment of the Articles of Association of
Emtek or E.T. Bygg or for the dissolution or liquidation of Emtek
or E.T. Bygg.
(d) Outstanding Options Warrants or Other Rights. Neither Emtek
nor E.T. Bygg has outstanding any option, warrant or other right
permitting or requiring it or others to purchase or convert any
obligation into shares of Emtek Capital Stock or E.T. Bygg
Capital Stock, has agreed to issue any shares of Emtek Capital
Stock or E.T. Bygg Capital Stock, or has made any commitment to
increase the capital stock of Emtek or E.T. Bygg. There are no
voting trusts or other agreements or understandings with respect
to the voting or transfer of shares of Emtek Capital Stock or
E.T. Bygg Capital Stock, and shares of Emtek Capital Stock and
E.T. Bygg Capital Stock are not subject to any pre-emptive
rights, rights of first refusal or similar rights.
(e) Subsidiaries. Neither Emtek nor E.T. Bygg has any
subsidiaries. Emtek owns on the date of signing of this Agreement
a minority of the share capital of Norlepak Oy, a Finnish
company, and 20% of the share capital of REOP AS, a Norwegian
company.
(f) Record Ownership. The Selling Stockholder is the sole record
and beneficial owner of all of the shares of Emtek Capital Stock
and E.T. Bygg Capital Stock.
(g) Financial Statements. The Selling Stockholder has delivered
to Sealed Air audited financial statements of Emtek and E.T. Bygg
including any related notes thereto and any reports thereon for
each of its five fiscal years ended December 31, 1993. Except as
has been disclosed to the Purchaser and Sealed Air in writing,
the foregoing financial statements have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods indicated and fairly
present the financial position, income and stockholders' equity
and changes in financial position of Emtek and E.T. Bygg as of
the dates and for the respective periods indicated. Such balance
sheets in all material respects make full and adequate provision
for all fixed and contingent obligations and liabilities of Emtek
and E.T. Bygg as of the dates and for the periods indicated
required by generally accepted accounting principles consistently
applied to be therein provided for and as of December 31, 1993
neither Emtek nor E.T. Bygg had any obligations or liabilities of
any nature not reflected in and adequately reserved against on
such balance sheets as of December 31, 1993 as required by
generally accepted accounting principles consistently applied to
be so reflected or reserved against. To the best of the knowledge
of the Selling Stockholder, there is no basis for the assertion
against Emtek or E.T. Bygg of any material liability or
obligation not adequately reflected in or reserved against in
such financial statements.
(h) Certain Changes or Events. Since December 31, 1993, except as
disclosed in Exhibit D (the "Disclosure Schedule"), neither Emtek
nor E.T. Bygg has:
(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 (for the
purpose of determining "material adverse change" the principles
applied under Section 36 of the Norwegian Agreement Act 1918
shall apply);
(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 Stockholder pursuant to written agreements in effect
prior to December 31, 1993 disclosed in the Disclosure Schedule;
(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 except pursuant to lines of credit
existing at December 31, 1993;
(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 except in the
ordinary course of business; or waived any material rights
(viii) entered into any material transaction other than in the
ordinary course of business;
(ix) granted to any director, 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 December 31, 1993
(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 employment or consulting agreement or arrangement with
any person, except the Selling Stockholder, other than in the
ordinary course of business;
(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 or, destruction to any of its property
or assets (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) 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 NOK 50,000 in the aggregate.
(i) Title to Properties: Liens. Each of Emtek and E.T. Bygg 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 necessary or
currently being used to conduct the business of Emtek and E.T.
Bygg as it is presently being conducted, 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 or disclosed in the
financial statements provided pursuant to Section 5(g), 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 business of Emtek or E.T. Bygg. There is
not under any material lease of real or personal property to
which Emtek or E.T. Bygg 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 Disclosure Schedule contains a
true and complete list and brief description of all real and
material personal properties owned or leased by Emtek or E.T.
Bygg, 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 the
Selling Stockholder 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 Emtek or E.T. Bygg. 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 Emtek and E.T. Bygg in the conduct of their respective
businesses are in good operating condition and repair.
(j) Adequacy of Patents and Other Rights. There are no:
(i) material patents, patent applications, inventions as to
which Emtek or E.T. Bygg 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 Emtek or
E.T. Bygg or (B) owned by or otherwise held in the name of third
parties in which Emtek or E.T. Bygg has any interest by license
or otherwise; and
(ii) material licenses, assignments and agreements to which Emtek
or E.T. Bygg is a party 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
Emtek or E.T. Bygg.
To the best knowledge of the Selling Stockholder, neither Emtek
nor E.T. Bygg has infringed or is infringing, or has engaged or
is engaging in any unauthorized 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 Emtek or E.T. Bygg, and there is no
basis nor would there be any basis for the assertion of any claim
against Emtek or E.T. Bygg of such infringement, unauthorized use
or misappropriation. There is no pending or threatened claim of
such nature against Emtek or E.T. Bygg.
The items described in clauses (i) and (ii) include all such as
are required or as are being used to carry on the business of
Emtek or E.T. Bygg substantially as now conducted. All such items
are owned or usable by Emtek or E.T. Bygg 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.
(k) Litigation, Etc. Except as disclosed in the Disclosure
Schedule, there are no actions, suits, proceedings or
investigations pending or, to the best of the knowledge of the
Selling Stockholder, threatened against or affecting Emtek or
E.T. Bygg, at law or in equity, before any court, commission,
board, bureau, agency, instrumentality or other governmental
authority. To the best of the knowledge of the Selling
Stockholder, there are no claims that have not been asserted
against Emtek or E.T. Bygg that are probable of assertion.
(l) Accounts Receivable. The accounts receivable of Emtek and
E.T. Bygg as shown on the balance sheets at December 31, 1993, or
thereafter acquired by them, are usual and normal receivables
and, through the continuation of existing collection procedures,
are and on the Closing Date will be collectible within sixty (60)
days after the dates on which they arose in aggregate amounts
thereof, after allowance for doubtful accounts in the amount of
the reserve established therefor as reflected in said balance
sheets.
(m) Inventory. Except as has been disclosed to and accepted by
Sealed Air, the inventories of Emtek and E.T. Bygg shown on the
balance sheets at December 31, 1993 or thereafter acquired by
them, consist of items of a quality and quantity usable or
saleable in the normal course of the respective businesses of
Emtek and E.T. Bygg; the value of all items of obsolete materials
and of materials of below standard quality has been written down
to realizable market value or adequate reserves have been
provided therefor; and the value at which such inventory is
carried reflects the normal inventory valuation policies of Emtek
and E.T. Bygg.
(n) Governmental Consents, Etc. Neither Emtek, E.T. Bygg nor the
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
or the Lease.
(o) Disclosure. Neither this Agreement, nor the financial
statements referred to in Section 5(g), nor any other document,
certificate, schedule or written statement furnished to Sealed
Air by or on behalf of Emtek, E.T. Bygg or the Selling
Stockholder 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.
(p) 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
Stockholder and the performance by Emtek and E.T. Bygg of the
obligations that the Selling Stockholder has agreed to cause them
to perform under this Agreement and the Lease 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, judgement, decree, ordinance, regulation, proceeding
or order or any other restriction of any other kind or character
to which Emtek or E.T. Bygg is a party or by which Emtek or E.T.
Bygg or any of their respective properties may be bound or
affected.
(q) Compliance With Law. Emtek and E.T. Bygg hold all
registrations, licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses
and have conducted their respective businesses so as to comply,
and to the best knowledge of the Selling Stockholder 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 authoriza-
tions, 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 Emtek or E.T. Bygg or
impair the Selling Stockholder's ability or the ability of Emtek
or E.T. Bygg to consummate the transactions contemplated by this
Agreement or the Lease.
(r) Existing Contracts. All material contracts, agreements,
leases, licenses and understandings to which Emtek or E.T. Bygg
is a party (true, correct and complete copies of which have been
delivered or made available to the Purchaser and Sealed Air) 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 Emtek or E.T. Bygg or,
to the best of the knowledge of the Selling Stockholder, the
other parties thereto. Except as disclosed in the Disclosure
Schedule, neither Emtek nor E.T. Bygg is a party to or has any
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, hospitalization, 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 cancelable on less than 90 days notice, (vi) contract for the
purchase or provision of goods or services by Emtek or E.T. Bygg
for an aggregate price in excess of NOK 200.000 per contract,
(vii) contract or commitment for capital expenditures in excess
of NOK 200.000 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) Guaranty of the obligations of
any other person, or (xiii) contract for the distribution, sale
or marketing of its products by others.
(s) Outstanding Indebtedness. Except as reflected in the
financial statements referred to in Section 5 (g), neither Emtek
nor E.T. Bygg has any outstanding indebtedness, other than
uncapitalized leases and trade or business obligations
subsequently incurred in the ordinary course of business, and
neither Emtek nor E.T. Bygg is in default in respect of any terms
or conditions of any such indebtedness.
(t) Taxes. Etc. Emtek and E.T. Bygg have timely and accurately
filed all necessary tax returns to be filed in Norway, which is
the only taxing jurisdiction in which Emtek and E.T. Bygg are
subject to taxation. In addition Emtek and E.T. Bygg have timely
and accurately filed all payroll tax reports and PAYE withheld
from the payroll of employees and value added tax and Emtek and
E.T. Bygg have both paid in full or made adequate provisions for
payment of all taxes, interest and penalties due in respect of
the tax returns.
True and complete copies of all tax and information returns and
reports and related documents have been or upon request will be
made available to Sealed Air. The financial statements of Emtek
and E.T. Bygg referred to in Section 5(g) contain adequate
provisions, in accordance with generally accepted accounting
principles for all taxes including PAYE and MVA (VAT) of Emtek
and E.T. Bygg, including interest and penalties in respect
thereof, required to have been accrued for. Neither Emtek nor
E.T. Bygg is subject to any pending or have received notice of
any other tax examinations. There are no liens for taxes that are
due on any of the properties or assets of Emtek or E.T. Bygg.
(u) 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
Emtek and E.T. Bygg together with the premiums currently paid
thereon. Emtek and E.T. Bygg are in compliance with all of the
provisions of their respective insurance policies and are not in
default under any of the terms thereof. Such insurance policies
are of the kinds, in the amounts and against the risks
customarily maintained by corporations similarly situated.
(v) Employee Benefits. The Disclosure Schedule contains a true
and complete list of all employee benefit and welfare plans of,
or other fringe benefits provided by, Emtek and E.T. Bygg,
including pension, profit-sharing, thrift, savings, bonus,
retirement, vacation, life insurance, health insurance, sickness,
disability, medical and death benefit plans.
(w) Miscellaneous.
(i) The Disclosure Schedule contains a true and complete list of
the names and current compensation of all employees of Emtek or
E.T. Bygg.
(ii) The Disclosure Schedule contains a true and complete list of
(A) each bank and safety deposit facility in which Emtek or E.T.
Bygg has an account or a safety deposit box and (B) the names of
all persons authorized 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.
(iii) Neither Emtek nor E.T. Bygg has, since December 31, 1993,
permitted any option to renew any material lease or any material
option to purchase any property to expire unexercised, in whole
or in part, except for the Lease in Exhibit B.
(iv) The Disclosure Schedule includes a true and complete list of
all outstanding powers of attorney granted by Emtek or E.T. Bygg
other than limited powers of attorney solely in connection with
tax matters and appointments of statutory agents to receive
service of process.
(v) Except as set forth on the Disclosure Schedule, neither Emtek
nor E.T. Bygg has any 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, organization or other entity, except as
endorser or maker of checks endorsed or made in the ordinary
course of business.
(vi) The Disclosure Schedule contains a complete and accurate
list of the ten largest customers by NOK sales volume of Emtek
and E.T. Bygg for 1993, 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 Emtek.
6. Indemnification.
(a) Indemnification. The Selling Stockholder agrees that she will
indemnify and save harmless the Purchaser and Sealed Air from and
against any and all losses, and expenses arising out of (i) any
false or misleading or inaccurate representation or warranty by
the Selling Stockholder contained in this Agreement or in any
other document, instrument, certificate, schedule or written
statement prepared for use and delivered to the Purchaser or
Sealed Air in connection with the transactions contemplated by
this Agreement or the Lease or any breach of any such
representation or warranty, (ii) any breach by the Selling
Stockholder of any provision of this Agreement,(iii) any matter
described in Section 6(c) or (iv) any matter or event related to
the Norpapp business to be retained by the Selling Stockholder,
ref. Section 8 (f).
(b) Liability for Indemnification. Except in the case of actual
fraud, the Selling Stockholder shall not be liable for indemnity
under this Section 6:
(i) for any Losses (other than Losses arising out of Section 6(c)
or the representations and warranties contained in Section 5(t)
or otherwise relating to taxes) unless notice of such Loss has
been given to the Selling Stockholder by Sealed Air on or prior
to the third anniversary of the Closing Date; or
(ii) for any Losses arising out of Section 6(c) or the
representations and warranties contained in Section 5(t) or
otherwise relating to taxes unless notice of such Loss has been
given to the Selling Stockholder by the Purchaser and Sealed Air
within six (6) months after the expiration of tax statute of
limitations that applies to the tax return in question; 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 the
financial statements delivered pursuant to Section 5 (g), the
Disclosure Schedule, or in writing to the Purchaser and Sealed
Air prior to the Closing hereunder, which writing states that it
is intended to take advantage of the benefit of this Section
6(b)(iii) and is accepted by the Purchaser and Sealed Air.
(iv) Except in the case of actual fraud or gross negligence the
maximum amount of indemnification will be NOK 6,000,000,-
through the second anniversary of the Closing and NOK
4,500,000,-thereafter.
(c) Tax etc. In the event that, with respect to any taxable year
or period of Emtek or E.T. Bygg, ended prior to the Closing Date
in the case of Emtek or the date of delivery of E.T. Bygg Shares
in the case of E.T. Bygg, a relevant taxing authority shall
increase the taxable income or adjust any other figure leading to
an increase of taxes payable, the Selling Stockholder shall
indemnify to hold harmless Emtek or E.T. Bygg respectively
against any additional tax (including but not limited to any
interest, penalties or other charges) levied in connection
therewith to which either such companies may become subject as a
result of such an adjustment of the tax base. The same shall
apply for payroll taxes, PAYE and VAT. However, the Selling
Stockholder shall not be liable for such additional tax to
the extent that Emtek or E.T. Bygg as the case may be is allowed
corresponding benefits in other income years. The Selling
Stockholder shall only be held liable if given an opportunity to
participate at her own expense at all stages in the
correspondence with the tax authorities leading up to an
amendment and in addition the Selling Stockholder shall have the
right to participate at her own expense in the appeals proceeding
sand possible subsequent litigation.
(d) Survival of Representations and Warranties. The
representations and warranties of the Selling Stockholder shall
survive the Closing to the extent of the obligations of the
Selling Stockholder for indemnity under this Agreement.
(e) Right to set-off. The Purchaser shall have the right to
set-off for any claim the Purchaser or Sealed Air may have
against the Selling Stockholder as at the due date of the Second,
Third or Fourth Installments respectively. This right of set-off
shall be reflected in the wording of the Guaranty (Exhibit C).
The right of set-off shall be exercised in writing and the reason
for and an indication of the amount of the Purchaser's or Sealed
Air's claim shall be noted in the notice to the Selling
Stockholder. If the Purchaser or Sealed Air exercises the right
of set-off for such claim, the amount set-off will reduce the
amount of the Installment against which such set-off is made that
is payable in Sealed Air Shares. If the Purchaser exercises the
right of set-off with respect to any claim the amount set-
off shall be placed in an escrow deposit with a Norwegian bank
reasonably acceptable to the Selling Stockholder and Sealed Air.
7. Representations and Warranties of the Purchaser and
Sealed Air.
The Purchaser and Sealed Air represent and warrant to and
covenant with the Selling Stockholder as follows:
(a) Due Incorporation. Sealed Air is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware, United States of America and the
Purchaser is a limited liability company duly organized and
existing under the laws of the Netherlands.
(b) Due Authorization, Etc. The execution, delivery and
performance of this Agreement by each of the Purchaser and Sealed
Air and the issuance of the Sealed Air Shares will, as of the
Closing Date, have been duly authorized by all necessary
corporate action of the Purchaser and Sealed Air and, upon their
delivery to the Selling Stockholder, the Sealed Air Shares will
be validly issued, fully paid and non-assessable with no personal
liability attaching to the ownership thereof. Subject to the
approval of this Agreement by the Board of Directors of the
Purchaser and Sealed Air, this Agreement has been duly executed
and delivered by the Purchaser and Sealed Air and constitutes the
legal, valid and binding obligation of Sealed Air, enforceable
against the Purchaser and Sealed Air in accordance with its
terms.
(c) No Violation. Subject to the approval of this Agreement and
the transactions contemplated by this Agreement by the Board of
Directors of the Purchaser and Sealed Air the execution, delivery
and performance of this Agreement by the Purchaser and Sealed Air
does not conflict with or constitute a breach by the Purchaser or
Sealed Air of any of the terms or provisions of, or a default
under, any charter document or by-law of the Purchaser and Sealed
Air, or any mortgage, indenture or other agreement or instrument,
judgement, decree, ordinance, regulation or order to which the
Purchaser or 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
the Purchaser or 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 Stockholder copies of (i) its Annual Report on Form
10-K filed with the Securities and Exchange Commission for the
year ended December 31, 1993 (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, 1993
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 30,
1994 for its Annual Meeting of Stockholders to be held on May 20,
1994. 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.
8. Certain Agreements.
(a) Conduct of Business of Emtek and E.T. Bygg Prior to the
Closing, etc. Prior to the Closing and with respect to E.T. Bygg,
until the Purchaser shall have acquired the E.T. Bygg Capital
Stock except as contemplated by this Agreement or as may be
expressly approved in writing by Sealed Air, the Selling
Stockholder:
(i) will cause Emtek and E.T. Bygg to operate their respective
businesses only in the usual, regular and ordinary manner;
(ii) will cause Emtek and E.T. Bygg to maintain all of their
respective properties in customary repair, order and condition
and to maintain adequate insurance upon all of their respective
properties, at least in such amounts and of such kinds comparable
to that in effect on the date of this Agreement;
(iii) will cause Emtek and E.T. Bygg to maintain books, accounts
and records in the usual, regular and ordinary manner, on a basis
consistent with prior years and periods and to comply with all
laws materially applicable to them and to the conduct of their
respective businesses;
(iv) will not permit any amendment to be made in the Articles of
Association of Emtek or E.T. Bygg or permit Emtek or E.T. Bygg 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 Emtek Capital Stock or E.T. Bygg Capital Stock issued and
outstanding or any option, warrant or any other right to purchase
of to convert any obligation into shares of Emtek Capital Stock
or E.T. Bygg Capital Stock, as the case may be, to be granted or
made by Emtek or E.T. Bygg;
(vi) will not permit (A) any dividend or other distribution or
payment to be declared, paid or made by Emtek or E.T. Bygg in
respect of their capital stock, (B) any purchase, redemption or
other acquisition of any outstanding shares of their capital
stock, or (C) any payment to the 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 Emtek or E.T. Bygg to encumber or mortgage
any of their respective 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 Stockholder permit Emtek or E.T. Bygg 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 the bonus, pension, profit-sharing,
compensation, insurance or other similar plan, agreement, trust,
fund or arrangement for the benefit of employees;
(iii) will promptly take, and shall cause Emtek and E.T. Bygg 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 Stockholder or on the part of Emtek or E.T. Bygg; 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 Stockholder
nor Emtek nor E.T. Bygg 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 substantially all of the assets or capital stock
of Emtek or E.T. Bygg, and the Selling Stockholder will notify
the Purchaser and Sealed Air immediately if any such inquiries
or proposals are received.
(b) Delivery of Minute Books and Corporate Records; Resignation
of Directors.
(i) Upon the completion of the transfers contemplated by Section
2(b)(i) or 2(b)(ii), as the case may be, the Selling Stockholder
shall cause the minute books and corporate records of Emtek and
E.T. Bygg to be delivered to such person or persons as may be
designated by Sealed Air as the custodian of such records in
complete and up-to-date condition. Such delivery shall be deemed
to be a representation on the part of the Selling Stockholder
that such minute books and corporate records are true, correct
and complete.
(ii) Upon the Closing Date in the case of Emtek and upon the
transfer of the E.T. Bygg Shares in the case of E.T. Bygg, the
directors of each such company shall resign at the first
extraordinary general meeting of each such company held after
such date and be replaced by the Purchaser's designees.
(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 authorized for listing on
such Exchange. The Selling Stockholder will cooperate with Sealed
Air in the preparation and submission of such listing application
as Sealed Air may reasonably request, and hereby consents to
the inclusion therein of the financial statements described
in Section 5 (g) hereof. In the event that such Exchange
authorizes 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 the Closing
Date.
(d) Certain Tax Obligations. The Selling Stockholder will pay in
a timely manner any and all taxes for which the Selling
Stockholder may be liable as a consequence of the transactions
contemplated by this Agreement and shall indemnify and hold the
Purchaser, Sealed Air, Emtek and E.T. Bygg harmless from and
against any claims that may be made against any of them as a
consequence of the Selling Stockholder's failure to perform her
obligations under this subsection (d).
(e) Non-Competition. The Selling Stockholder undertakes for a
period from the Closing Date until December 31, 1999 to refrain
from, directly or indirectly, engaging in the manufacture of any
products manufactured and sold by Emtek within two years prior to
the Closing Date. If the Selling Stockholder contravenes the
obligations established under this Section 8(e), the Selling
Stockholder will pay in cash to the Purchaser and Sealed Air an
amount of NOK 1,000,000 per event; provided, however, that the
Purchaser and Sealed Air may claim damages to the extent that the
Purchaser can prove that the loss suffered by Sealed Air, the
Purchaser or Emtek due to the Selling Stockholder's breach of
this clause exceeds NOK 1,000,000. The Selling Stockholder agrees
to indemnify the Purchaser, Sealed Air or Emtek for any and all
losses suffered by any of them due to any breach of this
non-competition clause. The agreed penalty and any possible
exceeding loss may be set off against the Purchaser's duty to pay
the purchase price under this Agreement.
(f) Norpapp. The Purchaser acknowledges that the business
activities (other than the ownership and leasing of Emtek's
facility) ("Norpapp") operated by the Selling Stockholder through
E.T. Bygg, will be retained by the Selling Stockholder upon the
transfer of the shares of E.T. Bygg to the Purchaser without
reduction of the purchase price. The Selling Stockholder may
retain Norpapp by means of distribution, dividends or other
transactions from E.T. Bygg, provided that such transaction will
have no adverse affect upon the financial condition of E.T. Bygg
as of December 31, 1993. If any such transaction should lead to
extra taxes for E.T. Bygg, the Selling Stockholder shall pay any
such extra tax. The Selling Stockholder undertakes to organize
Norpapp as a separate business entity fully independent of E.T.
Bygg, prior to January 25, 1997, and all obligations of E.T. Bygg
related to Norpapp, including any possible extra tax, caused by
the separation of Norpapp from E.T. Bygg shall be taken over by
the new entity and guaranteed by the Selling Stockholder. The
Selling Stockholder agrees that she will indemnify and save
harmless the Purchaser and Sealed Air for any claims of what ever
nature related to Norpapp, ref. Section 6 (a). The Selling
Stockholder undertakes to keep the Purchaser and Sealed Air fully
informed of the plans to separate Norpapp from E.T. Bygg's other
business activities.
9. Registration of the Sealed Air Shares and Restrictions on
Transfer.
(a) Registration Pursuant to Rule 415. As soon as practicable
after the Closing Date in the case of Sealed Air Shares issued in
payment of the First Installment or after the date (each a
"Delivery Date") on which the Second Installment, the Third
Installment or the Fourth Installment, as the case may be, is due
in the case of Sealed Air Shares issued or delivered in payment
of all or any portion thereof, and in no event later than 30 days
after the date by which the Selling Stockholder shall have
supplied Sealed Air with all information and materials with
respect to Emtek and E.T. Bygg and the Selling Stockholder
required in connection with the filing by Sealed Air of the
registration statements referred to in this Section 9, 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"; each such Registration Statement being herein
referred to as a "Registration Statement"), relating to the
Sealed Air Shares issued or delivered on such date to the Selling
Stockholder 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 the first Registration Statement
effective until the third anniversary of the Closing Date and to
keep each Subsequent Registration Statement effective until the
third anniversary of the Delivery Date. The description of the
plan of distribution in each such Registration Statement shall be
in substantially the form delivered to the Selling Stockholder
prior to the Closing Date, with such changes therein as may be
required by the U.S. Securities and Exchange Commission. The
Selling Stockholder will not be entitled to any other rights with
respect to registration of Sealed Air Shares.
(b) Expenses. 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. Notwithstanding the foregoing, Sealed Air shall not be
required to pay any underwriting or brokerage discounts, fees or
commissions or any fees of counsel for the Selling Stockholder in
connection with the Registration Statements or any sale of Sealed
Air Shares.
(c) Procedures. In the case of each registration or qualification
pursuant to Section 9(a), Sealed Air will keep the Selling
Stockholder advised in writing as to the in litiation of
proceedings for such registration and qualification and as to the
completion thereof, and will advise the Selling Stockholder, upon
request, of the progress of such proceedings.
(d) Indemnification. Sealed Air will indemnify and hold harmless
the Selling Stockholder against any losses, claims, damages, or
liabilities, joint or several, and expenses (including reasonable
costs of investigation) to which the 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, 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 alleged untrue statement or omission or
alleged omission based upon information, including without
limitation any information provided as to Emtek or E.T. Bygg for
the period prior to the Closing Date or any other information,
furnished to Sealed Air in writing by the Selling Stockholder
(with respect to which information the 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 the 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 Section
ll(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentations.
(e) Selling Stockholder's Representation. The Selling Stockholder
represents and warrants to the Purchaser and Sealed Air that any
acquisition of Sealed Air Shares by the Selling Stockholder
pursuant to this Agreement will be, at the time of acquisition,
for her own account and that the Selling Stockholder will hold
any Sealed Air Shares received by her pursuant to this Agreement
for her 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. The Selling
Stockholder agrees with the Purchaser and Sealed Air that:
(i) the Selling Stockholder is neither a citizen nor a resident
of the United States;
(ii) the 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, that
covers the Sealed Air Shares being disposed of (y) in compliance
with Rule 144 under the 1933 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 or that complies with an
exemption from registration under such Act, the 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 above (it being understood that the
Selling Stockholder shall have the right to participate, at the
Selling Stockholder's expense, in the defense of any such claim).
(f) Legend on Certificates.
(i) The certificates representing the Sealed Air Shares (and any
certificate representing Sealed Air Common Stock issued in
exchange therefor 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) 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 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
Stockholder 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 each
Registration Statement the Selling Stockholder may deliver the
certificates for the Sealed Air Shares covered by such
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 the Selling Stockholder in
exchange for such legended certificates. Such request shall set
forth the Selling Stockholder's understanding and agreement that
delivery by Sealed Air of such unlegended certificates shall not
release the Selling Stockholder from her 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. The Selling Stockholder agrees that if, at any time
after receiving such unlegended certificates, the Registration
Statement covering such Sealed Air Shares is not effective, the
Selling Stockholder will thereafter sell such Sealed Air Shares
in compliance with Rule 144 under the 1933 Act, and the Selling
Stockholder 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 the Selling Stockholder in
exchange therefor. The Selling Stockholder shall advise Sealed
Air from time to time of the number of Sealed Air Shares covered
by each Registration Statement the Selling Stockholder has 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, the Purchaser and Sealed Air may,
through their 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 Emtek and E.T. Bygg to the extent that Sealed Air deems
necessary or advisable to investigate the business or affairs of
Emtek and E.T. Bygg. The Purchaser and Sealed Air agree that,
unless and until the Closing has been consummated, the Purchaser,
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,
the Purchaser and Sealed Air will return to the Selling
Stockholder or Emtek and E.T. Bygg all such data and information
as the Selling Stockholder shall reasonably request.
(b) 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 the Purchaser or to Sealed Air, to:
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07662
Attention: William V. Hickey
Senior Vice President-Finance
Facsimile No.: 095 201 703-4205
If to the Selling Stockholder, to:
Aud Rolseth Sanner
Sagstuen 2320 Furnes
Fax no. 62 35 82 51
The address of any party to this Agreement may be changed at any
time by written notice to the other parties to this Agreement.
(c) 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.
(d) 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.
(e) 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.
(f) Governing Law. The execution, validity, construction and
performance of this Agreement shall be governed by and construed
in accordance with the laws of Norway.
g) No Brokers or Finders. No person or entity is entitled to any
brokerage commission, finder's fee, advisory fee or other like
payment from the Selling Stockholder, the Purchaser or Sealed Air
in connection with the transactions contemplated by this
Agreement.
(h) Conduct of Business of the Purchaser 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 the Purchaser or Sealed Air in
the conduct of their business.
(i) Furnishing of Information. Prior to the Closing, Sealed Air
will afford to the Selling Stockholder, her auditor and her
counsel, 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 authorized to act on Sealed
Air's behalf and the opportunity to obtain any conditional
publicly available information (to the extent Sealed Air has such
information or can acquire it without unreasonably effort or
expense) that the Selling Stockholder, her auditor or counsel,
may reasonably request concerning the Sealed Air Shares to be
issued pursuant to this Agreement.
(j) 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 Oslo Chamber of Commerce. Any such arbitration shall be
held in Oslo, Norway. The award of the arbitrators in any such
proceeding shall be binding on the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first set forth above in three - 3 - originals,
one to each of the parties.
________________________ ________________________
Aud Rolseth Sanner Sealed Air B.V.
_________________________
Sealed Air Corporation
<PAGE>
AMENDMENT NO. I
TO STOCK PURCHASE AGREEMENT
AGREEMENT dated September 8,1994 among SEALED AIR B.V., a limited
liability company organized and existing under the laws of the
Netherlands (the "Purchaser"), and AUD ROLSETH SANNER, a
Norwegian individual (the "Selling Stockholder"), joined in by
SEALED AIR CORPORATION, a Delaware corporation ("Sealed Air").
Recitals
The parties have entered into a Stock Purchase Agreement dated as
of May 30, 1994 (the "Stock Purchase Agreement"). Section
3(b)(ii) of the Stock Purchase Agreement provides for the
delivery to the Selling Stockholder at the Closing (as defined
in the Stock Purchase Agreement) of a Guaranty.
The parties have agreed that the delivery to the Selling
Stockholder of the Guaranty attached hereto as Annex A satisfies
the requirements of Section 3(b)(ii) of the Stock Purchase
Agreement and desire to set forth their understanding of the
consequences of the failure of the Guaranty to remain in effect
until November 8, 1997.
Now, THEREFORE, the parties agree as follows.
1. Section I (b) of the Stock Purchase Agreement shall be and
is amended by striking the "." appearing at the end of clause (z)
thereof, substituting therefor and adding the following language
to the end of such Section:
"provided that, if the Guaranty referred to in Section 3(b)(ii)
is not renewed for any period ending prior to the date on which
the Third Installment or the Fourth Installment is due, the
amount thereof not previously paid to the Selling Stockholder
shall, subject to Section 6(e), become payable on demand to the
Selling Stockholder. The Purchaser shall use its best efforts to
cause the Guaranty to remain in effect until November 8, 1997,
shall cause written notice of any non-renewal of the Guaranty to
be given to the Selling Stockholder not later than sixty (60)
days prior to the Anniversary Date thereof (as such term is
defined in the Guaranty delivered at the Closing) as of which the
Guaranty shall expire, and, in the event that the Guaranty shall
cease to remain in effect after any Anniversary Date occurring
prior to November 8, 1997, shall pay the unpaid amount of the
Third Installment or the Fourth Installment, as the case may be,
within five (5) days after a demand therefor made by the Selling
Stockholder pursuant to the proviso set forth in the preceding
sentence."
2. All other provisions of the Stock Purchase Agreement
remain in full force and effect.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
on the date first set forth above in three (3) originals, one to
each of the parties.
___________________ ___________________________________
Aud Rolseth Sanner William V. Hickey,
Managing Director on
behalf of Sealed Air B.V.
___________________________________
William V. Hickey,
Senior Vice President-Finance,
on behalf of Sealed Air Corporation
SEALED AIR CORPORATION
PARK 80 EAST/SADDLE BROOK, NEW JERSEY 07663-5291
(201) 791-7600/FAX (201)703-4205
EXHIBIT 5
October 3, 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 11,079 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 Stockholder 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
May 30, 1994, as amended (the "Stock Purchase Agreement"), among
the Corporation, Sealed Air B.V., a Netherlands company and a
wholly-owned subsidiary of the Corporation (the "Purchaser"), and
Aud Rolseth Sanner, a Norwegian individual (the "Selling
Stockholder"). Pursuant to the Stock Purchase Agreement, the
Purchaser acquired all of the outstanding shares of Emballasje-
Teknikk AS, a Norwegian company, on September 8, 1994 (the
"Acquisition").
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 November 2, 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.
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 headings "Selected Financial Data" and
"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 LLP
Short Hills, New Jersey
October 3, 1994
